1989 PLP 9 (PLC)

Abdul Majid respondent No. 3 (hereinafter referred to as the respondent) was employed as Telephone Operator in the Muslim Commercial Bank Limited, the petitioner herein. , In June 1982, while the respondent was serving in the Circular Road Branch, Faisalabad of the petitioner Bank, his services were terminated on 5‑6‑1982, through letter, copy Annex. `A'. This purported to be termination simpliciter. The respondent was informed that his services were no longer required; therefore, the same were dispensed with. In the letter of termination the petitioner Bank acknowledged the commendable services of the respondent and assured him that further possibility of his employment in the organization of the petitioner bank would be explored. The respondent, however, challenged his termination before the learned Punjab Labour Court No. 4, Faisalabad through a grievance petition under section 25‑A of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the Ordinance). The learned Labour Court dismissed the respondent's grievance petition on 16‑10‑1982. He, thereafter, preferred an appeal before the learned Punjab Labour Appellate Tribunal. On 11‑5‑1983, the respondent's appeal was accepted and he was directed to be re‑instated with back benefits.

2. The aforesaid order passed by the learned Labour Appellate Tribunal on 11‑5‑1983, has been assailed through the present constitutional petition. Primarily it was urged on behalf of the petitioner‑Bank that terms and conditions of service of the employees of the nationalized Banks and other financial institutions were governed by the award of the Wage Commission and that the said award by virtue of the provisions of section 38 of the Ordinance could only be enforced by the National Industrial Relations Commission. Thus it was canvassed that the Labour Court and the Labour Appellate Tribunal lacked jurisdiction in the matter. It was also averred that the award of the Wage Commission was not covered by the definition of expression `award' as occurring in section 2 of the Ordinance and, therefore, this award could not be enforced through an application under section 25‑A of the Ordinance. These contentions found favour with a learned Division Bench of this I Court. Consequently, the writ petition of the petitioner Bank was allowed on 10‑4‑1985. The main judgment was recorded in Writ Petition No. 719 of 1982. The respondent and other affected employees of the nationalized Banks went in appeals before the Supreme Court of Pakistan. These appeals were accepted by the august Supreme Court. It has been held by the Supreme Court of Pakistan that the award of the Wage Commission like any other award is enforceable under section 25‑A of the Ordinance and, therefore, the Labour Court and the Labour Appellate Tribunal did not lack jurisdiction in the matter it has further been ruled that provisions of the Industrial Relations Ordinance are applicable in case of dismissed workmen of the banks. The Supreme Court, however, remanded the cases after accepting the appeals for deciding other issues involved in such cases.

3. So far as the present case is concerned, the other points which have been raised by the petitioner Bank are:‑‑ (a) This being a case of termination simpliciter which was permissible under para. D4 of the First Wage Commission award, could not be questioned before the Labour Court; (b) the learned Labour Appellate Tribunal passed the impugned judgment at the back of the petitioner without affording reasonable opportunity of hearing to the bank; and (c) that no right guaranteed under any lave 'award" for settlement has been disregarded by ordering termination simpliciter of the respondent.

4. Regarding points (a) and (c) above, it may be observed that the respondent at the time of termination of his services was admittedly a confirmed employee. Para. 234 of the Wage Commission award provides that after the expiry of the period of probation, services of an employee can be terminated by the appointing authority if such an employee renders resignation or by giving him one month's notice or pay in lieu thereof. In the present case, the respondent had not resigned from his employment. The letter of termination was issued to him on 5‑6‑1982 and his termination was made effective from that very day. He was, of course, allowed the right to receive all his legal dues. As stated earlier, it was conveyed to the respondent that his services were no longer, required. The learned Labour Appellate Tribunal on the basis of evidence adduced by the parties before the learned Labour Court has come to the conclusion that at the time of termination of services of the respondent the work‑load of a telephone operator has, in fact, increased. The respondent was not the junior‑most employee and that there was no justification to maintain that services of the respondent were no longer required. It has thus been found as a matter of fact that in the case of the respondent it was merely in colourable exercise of powers under para. 234 of the Wage Commission award. Although in fact, the work by that time had increased but the services of the respondent were terminated for different considerations. It has also come on record that all employees including the respondent appointed by a particular Zonal Chief were removed from service on one ground or the other. The learned Labour Appellate Tribunal has concluded that the services of the respondent were also terminated for such collateral consideration and not for the reasons envisaged in para. 234 of the Wages Commission award. Such an order is certainly a mala fide one. An act done mala fide has always been held to be an act without jurisdiction. In case State v. Ziaur Rphman and others P L D 1973 S C 49, it was observed that proceedings taken mala fide or cases in which the statute was merely used as a cloak to cover an act which, in fact, is not taken even though it purports to have been taken under the statute. It was further ruled that an act done mala fide is an act without jurisdiction. In the case of Abdul Rauf v. Abdul Hamid Khan P L D 1965 S C 671, it was observed:‑‑ "A mala fide act is by its nature an act without jurisdiction. No Legislature when it grants power to take action or pass an order contemplates a mala fide exercise of power. A mala fide order is a fraud on the statute. It may be explained that a mala fide order means one which is passed not for the purpose contemplated by the enactment granting the power to pass the order, but for some other collateral or ulterior purposes."

5. So far as the plea that the impunged order has been passed at the back of the petitioner without affording an opportunity of hearing is concerned, it may be observed that although at the time of hearing of respondent's appeal, none appeared for the petitioner bank, but there is nothing on the record to suggest that the petitioner was not afforded opportunity of hearing in the appeal. It appears that the petitioner was duly served in the case of respondent's appeal before the learned Punjab Labour Appellate Tribunal but the petitioner bank for the reasons best known to it failed to put in appearance on the date fixed for hearing of the appeal. It cannot, therefore, be said that opportunity of hearing has not been afforded to the petitioner.

6. In the light of the foregoing discussion, it is concluded that there is no merit in the present writ petition, which is, therefore, dismissed. There shall, however, be no order as to costs. S.Q./M‑900/L Petition dismissed.