1986 PLP (C (PLC(CS))

`The facts giving rise to this Constitutional Petition are that Manzoor‑ul‑Hassan petitioner was holding the job of Manager in the National Bank of Pakistan, Lahore, Airport Branch. He was dismissed from service on 23‑2‑1971 on the allegations of embezzlement of Rs.4,000 and certain other irregularities. He challenged his dismissal by filing a civil suit. The suit was decreed in his favour on 8‑5‑1976. The respondent‑bank filed an appeal against the said judgment and decree which was accepted by the Additional District Judge, Lahore and the petitioner's suit was dismissed. The petitioner filed a Civil Revision No. 439 of 1977 in the High Court which was accepted on 21‑2‑1982 and the judgment and decree of the trial Court was restored. The National Bank of Pakistan (respondent No. 1) then filed a Civil Petition for Special Leave to Appeal in the Supreme Court of Pakistan but after the grant of leave to appeal the petition was dismissed on 5‑2‑1985 with the result that the judgment and decree passed in favour of the petitioner by the civil Court held the field. By his order, dated 17‑3‑1985, the Executive Vice‑President, National Bank of Pakistan, Lahore respondent No. 2 reinstated the petitioner but surprisingly respondent No. 1 terminated his services in the exercise of his powers under rule 15(1) of the National Bank of Pakistan (Staff) Services Rules,. 1980 on 24‑4‑1985. The petitioner filed an appeal/revision before the President of National Bank of Pakistan against the order of termination of his service; but it was dismissed on 23‑6‑1985, being not competent Respondent No. 1 had also got E: criminal case registered on the same allegations against the petitioner and another in which both of them were acquitted,

2. It i5 contended that the petitioner was a confirmed officer having put in a long service of about 27 years. He was reinstated in pursuance of an order of the Supreme Court of Pakistan on 17‑3‑1985 but his services were again terminated on 24‑4‑1985 without any irregularity having been committed by him. Furthermore, that no inquiry was held in terms of National Bank of Pakistan (Staff) Services Rules, 1980 nor was any opportunity given to defend himself before terminating his services. It is stated that in these, circumstances the impugned order of termination of the petitioner's service is based on mala fides. Ti)e mala fide nature of the impugned order is further evident from the fact that the respondents have not given back benefits to the petitioner.

3. Learned counsel for the respondents has contested the petition and stated that no specific allegations a, to the mala fide of the respondents have been established by the petitioner.

4. There is no denying the fact that the judgments of the trial Court and of the High Court were upheld by the Supreme Court of Pakistan. The petitioner was reinstated in service on 17‑3‑1985 but his services were terminated on 24‑4‑1985 without indicating any reason justifying a fresh action against him. Judicial orders passed and maintained up to the Supreme Court cannot be set at naught in such manner. It is well‑settled that the mala fide act is a nullity and is not an act within the statute under which it purports to have been passed. In this context reliance may be placed on Zafar‑ul‑Ahsan v. Republic of Pakistan P L D 1960 S C 113 wherein it was held, "where; however, the proceedings are taken mala fide and the statute is used merely as a cloak to cover an act which in fact is not taken, though it purports to have been taken, under the statute, the order will not, in accordance with a long line of decisions in England and in this sub‑continent be treated as an order under the statute." Similarly in Federation of Pakistan v. Saeed Ahmad P L D 1974 S C 151 it was held that action taken in bad faith is usually action taken maliciously. In the State v. Zia‑ur‑Rehman and others P L D 1973 S C 49 it was held theft a mala fide act stands in the same position as an act done without jurisdiction, because no legislature when granting the power to do an act can possibly contemplate the preparation of ii justice by permitting the doing of that act mala fide. In view of the circumstances of the case and in the light of the enunciations of the superior Courts on the question of mala fide as transpires from the precedents quoted above, it is concluded that the impugned action of terminating the service of the petitioner soon after his reinstatement in pursuance of the orders of the trial Court, High Court and the Supreme Court in the colourable exercise of the powers under the National Bank of Pakistan (Staff) Services Rules, 1980 is a mala fide act which has been resorted to just for frustrating the orders of the Courts of Law. In this view of the matter, the writ petition is allowed and the impugned order is declared to be without lawful authority and of no legal effect. However, this would not preclude the respondents from proceeding against the petitioner afresh in accordance with law. No order, however, is made as to costs. A.A Petition accepted.