1. ' RAJA AFRASIAB KHAN, J.---Sheikh Abdul Aziz, the respondent herein was appointed as Tehsildar in 1950. In 1961, he was inducted into the Provincial Civil Service. Thereafter, the respondent was promoted as Deputy Commissioner and while serving as such, on 5th of December 1969, he was suspended from service under the (Removal from Service Special Provisions) Regulation (M.L.R. 58 of 1969). A charge sheet was served upon him. A reply to the charge sheet was given by him. A Tribunal heard the respondent and vide notification dated 6th of June, 1970, he was dismissed from service. A representation was moved by the respondent before the President of Pakistan to call in question the validity of his dismissal from service but it did not succeed. Writ Petition No,1514-S of 1973 was instituted by the respondent in the High Court. This petition, however, was dismissed on 24-9-1974 because it had abated on account of promulgation of Service Tribunals Act, 1974. An appeal was filed by the respondent against order of his dismissal before the Service Tribunal which was dismissed on 30-8-1981. The impugned judgment was assailed before the Supreme Court through petition for leave to appeal which was granted on 29-3-1982. However, on the promulgation of Provisional Constitution Order 1981, the said appeal before the Supreme Court also abated. The respondent came to know that some such dismissed civil servants had already filed Constitution petitions. Those petitions were allowed by the Sindh High Court. Encouraged with this fact, the respondent assailed the impugned order through Constitution Petition No,15724 of 1993. It was heard and accepted by a Division Bench of the Lahore High Court vide judgment dated 8th of December, 1996. The Federation of Pakistan has filed Civil Petition No,147 of 1997 challenging the validity of the impugned judgment. Another Civil Petition No,416-L of 1997 has been filed by the Government of Punjab on the controversy. These petitions arise out of the common impugned judgment and as such, are being disposed of together through this judgment.
2. At the very outset, it has been brought to our notice by the learned Deputy Attorney-General that the Government of Punjab has issued notification dated 20th of June, 1997 disclosing that order dismissing the respondent from his service has been cancelled. The notification reads as follows:-- "No,2-21/74-S0 (Admn-IV): In pursuance of judgment of the Lahore High Court pronounced in Writ Petition No,15724 of 1993 titled "Sh. Abdul Aziz v. Federation of Pakistan etc." the Governor of the Punjab has been pleased to rescind the orders of dismissal from service of Sh. Abdul Aziz, formerly Additional Deputy Commissioner (Cons.) Cambellpur, with effect from 21-9-1970, under MLR-58 in partial modification of Government of West Pakistan, Services & General Administration Department's Notification No,SO(S) 12-41/70 2269(i) dated 6th of June, 1970, without prejudice to the decision of the Supreme Court on C.P.L.A. No,416-L of 1997 pending adjudicption before the Apex Court."
2. ' Learned Law Officer has submitted that the above notification is conditional inasmuch as it has been made subject to the result of the petition for leave to appeal against the impugned judgment which is still pending adjudication before this Court. He attempted to argue that the respondent, was rightly dismissed from service and that being so, the High Court had no authority to interfere with the impugned order.
3. We have not been persuaded to agree with the learned Law Officer because there is plethora of case-law to show that where action taken against a person is coram non judice, mala fide or without jurisdiction, the High Court shall always be competent to interfere to do complete justice between the parties. It was evident from the record that the respondent was included in the list of civil servants who were required to be removed from service without affording an opportunity of hearing to them. It is clear from the said list that the authorities had already made up their mind to dismiss the respondent along with others from service. As a matter of fact, this plea of the respondent was not, at all, contested by the petitioners and the learned Law Officer appearing on their behalf before this Court. The respondent has, therefore, been condemned unheard which is against the spirit of natural justice contained in the maxim audi alteram partem. In this view of the matter, impugned order was mala fide, coram non judice and without jurisdiction on the face of it.
3. His service career was brought to an abrupt end on the basis of a charge about which no evidence whatsoever was produced against him. It was a case of .No evidence as was established on record. Learned counsel for the respondent has relied upon S.A. Rizvi v. Islamic Republic of Pakistan (1991 M LD 1834) to support his plea. The writ petitioner in the referred case, S.A. Rizvi was dismissed from service like the respondent in this case. He approached the Sindh High Court through Constitution petition on somewhat identical grounds. His petition was accepted by the Sindh High Court observing:-- "In the present case there is no delay as explained above and even if there is, it has been adequately explained and accounted for by the petitioners. In Muhammad Sadiq v. Anwar Majeed 1989 PCr.L.J 1223 it was held by a Division Bench of this Court consisting of Ajmal Mian, Acting CJ.
4. And Saleem Akhtar, J. (as they then were that the question whether delay in filing a Constitutional petition was fatal, would depend upon facts of each case. It was observed that delay in some cases of even several years could be overlooked, while short delay/lathes could be fatal in other cases. Where Constitutional petition directed against an order suffered from unexplained delay/laches, such delay was fatal. In this ruling the decisions in the following cases were referred:- -
(1) The State v. Muhammad Saleh and another PLD 1980 Kar.
5. 131.
(2) Hussain Bakhsh v. Allah Bakhsh and others 1981 SCM R 410.
(3) Nazar v. The State 1968 SCM R 415.
(4) Jalal Khan v. Lakmir 1968 SCM R 1345.
(5) Muhammad Khan v. Sultan 1969 SCM R 82
(6) Piran Ditta v. The State 1970 SCM R 282.
(7) Noor Muhammad v. The State 1972 SCM R 331.
(8) Settlement Authority through The Chief Settlement Commissioner, Lahore and another v. Mst.
6. Akhtar Sultana PLD 1976 SC 410.
7. ' We are, therefore, of the clear view that the impugned order is patently illegal, clearly mala fide and coram non judice. We, therefore, allow the petition and set aside the impugned order and direct respondent No,1 to refix-the date of his retirement in the light of this judgment."
8. ' The Federation of Pakistan challenged the above judgment before this Court through petition for leave to appeal which was heard and dismissed on 13th of November 1991 by upholding the view of the High Court in Islamic Republic of Pakistan v. S.A. Rizvi (1992.SCM R 1309).
9. ' In the referred case, this Court observed:-- "The High Court has taken the view that the Tribunal's recommendation was merely a command performance as the petitioner had before the reference of the case to the Tribunal decided to dismiss the respondent and put him to trial and the proceedings before the Tribunal were merely a smoke screen to give a colour of validity to a pre-determined decision. This conclusion was drawn by referring to the documents and also to note in the order of dismissal which reads as follows:-- "This officer was held on the list of those officers who were earmarked for dismissal followed by trial."
10. ' Holding that the entire proceeding was a sham and colourable device to dismiss the respondent it was observed that the order was mala fide, coram non judice and without jurisdiction. On these grounds the bar under Article 270-A of the Constitution could not apply. In this regard reliance was placed on the following cases:
(1) Federation of Pakistan v. Malik Ghulam Mustafa Khar PLD 1989 SC 26, in which it was held that 'any action which is mala fide is an act without jurisdiction'.
(2) Abdul Rauf v. Abdul Hameed Khan PLD 1965 SC 671.
(3) Pakistan v. Saeed Ahmed Khan PLD 1974 SC 151.
(4) State v. Ziaur Rehman PLD 1973 SC 49.
11. ' We may observe here that while referring to the case of Ziaur Rehman and observing that an act done mala fide is an act without jurisdiction it was further held that:-- "the opposite of this proposition must also be true that an act without jurisdiction is an act done mala fide."
12. ' Mr. Niaz Ahmed Khan contended that there are laches in filing the petition while Mr. Osmany has contended that the petitioner had closed all doors for seeking remedy and the respondent had been pressing it wherever it was possible and there was no negligence on his part. The Division Bench has taken a correct view. We, therefore, refuse to grant leave and dismiss the petition."
4. After hearing the learned counsel for the parties at some length and reading the record, we hold the view that the facts of the above case of S.A. Rizvi are almost similar with those of the case of the respondent. We, therefore, agree with the view already taken by the High Court that the respondent was dismissed from service with a predetermined mind and also without giving him an opportunity of hearing. No such list of civil servants to dismiss them from service could be prepared behind their back. In other words, a command was issued by the concerned authority to the Tribunal to dismiss the Civil servants mentioned in the said list without providing them adequate opportunity of hearing. This was, indeed, a mockery of civilized judicial system. The impugned order of dismissal was, therefore, not sustainable in law on any ground whatsoever. We would, therefore, uphold the judgment rendered in favour of the respondent by the High Court. Civil petition for leave to appeal No,416-L/97 is barred by limitation by 32 days. No satisfactory explanation has been given by the petitioners for the condonation of the delay. It is well-settled that each day of delay has to be explained by the petitioners which has not been done to our satisfaction. In such a situation, these petitions have been found to be without substance and are, accordingly, dismissed on merits as well as being barred by limitation by refusing leave to appeal.