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Appeal No. GA‑455 of 1977, decided on 28th May, 1978.

‑‑‑ Termination of service as no longer required‑‑Means that post abolished‑‑Post still continuing and termination order passed stating that "services no longer required"‑‑Termination order, in circumstances, held, mala fide‑‑Bank employee (Cashier‑cum‑Clerk) completing probation period‑‑Services terminated stating same no longer required‑‑Reasons subsequently disclosed that he being 3rd Division Matric was not eligible for appointment under Wage Commission Award‑‑Conditions of eligibility of 2nd Division Metric already within knowledge of Management when such employee appointed‑‑Management, in circumstances, held, had condoned lack of requisite qualification and could not go back on it merely because appointment was contrary to Wage Commission Award‑ Impugned order, held, mala fide being not stating actual reasons but mentioning simply that "services no longer required"‑‑Order of Labour Court awarding re‑instatement with back benefits upheld by Appellate Tribunal‑‑Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A and 38(3).

Abdur Rauf and others v. Abdul Hamid Khan and others P L D 1965 S C 671 rel.

A.R. Sheikh for Appellant.

Date of hearing: 16th April, 1978.

This is an appeal against the decision, dated 8‑8‑1977 of Punjab Labour Court No.1, Lahore.

2. Ibrar Ahmad, respondent was appointed on 16‑12‑1974 as a Godown‑Keeper in a temporary vacancy for a period of nine months in the Hafizabad Branch of Habib Bank Limited, Gujranwala. His services were terminated on 7‑4‑1975. He was re‑employed on 17‑7‑1975 in the same post at the same place. His services were again terminated on 13‑10‑1975. These terminations have not been challenged. On 6‑12‑1975 he applied for the post of clerk vide application Eich.P.4, in which he stated that he had passed his Matriculation examination in 1968. He did not misrepresent that he had passed the Matriculation examination in second division. He was subjected to a test and interview and then appointed as Cashier‑cum‑Clerk and was required to report for duty at Vanike Tarrar, District Gujranwala Branch on 26‑12‑1975 vide appointment letter Exh. P.5, dated 17‑12‑1975. He was kept on probation for a period of three months. He joined as Cashier‑cum‑Clerk on 1‑1‑1976. Thereafter, his services ‑were terminated on 26‑11‑1976 as no longer required vide termination letter Exh. P.7.

3. The respondent filed a petition under section 25‑A of industrial Relations Ordinance, 1969 on 24‑1‑1977 before the Labour Court, which accepted the same and ordered his re‑instatement with back benefits.

4. Aggrieved by the above decision, Messrs Habib Bank Limited, Gujranwala Zone, Gujranwala through Controller of Branches, appellants have preferred this appeal.

5. From the perusal of the record I find that though it was not necessary for the respondent to have served a grievance notice, but yet he had served a grievance notice, to which the appellants replied vide letter Exh. D.2, dated 2‑2‑1977, in which it was mentioned as under: ----

"You were appointed on 17‑12‑1975 when the Wage Commission Award had already come into force. Under the Award a person can only be employed if he is at least a second divisioner Matriculate which qualification admittedly you are not holding. Your appointment was made under the impression that you were a second divisionary and when it was discovered that you were only a 3rd‑divisioner, the Bank had no alternative but to terminate your appointment in terms of the Wage Commission Award."

6. In the termination letter it was nowhere mentioned that his services were being terminated, because he was a 3rd‑divisioner Matriculate as mentioned in Exh. D.2, but instead it was mentioned that his services were terminated as no longer required, without giving any reason.

7. The Wage Commission Award, in which it was mentioned that the minimum qualification for the appointment to the post of Cashier‑cum- Clerk was Matric 2nd‑Division, was already in the knowledge of the appellants when the respondent was appointed on 17‑12‑1975. Therefore, in spite of the Wage Commission Award, the appellants had employed the respondent which meant that the appellants had condoned the lack of qualification and now the appellants cannot go back on it merely on the excuse that his appointment was contrary to the Award. If the services of the respondent were terminated on account of lack of qualification, then the said fact should have been mentioned in the termination letter Exh. P.7. The lack of qualification of the respondent was for the first time introduced in Exh. D.2 in reply to the grievance notice served by the respondent.

8. Ordinarily, if the services of an employee are terminated as no longer required, it means that the post has been abolished. In this case, the post of the respondent was not abolished. In view of the above, the order of termination was a mala fide order.

9. In the case, Abdur Rauf and others v. Abdul Hamid Khan and others 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. 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."

10. The learned counsel for the appellants further contended that in view of paragraph 234 of the Wage Commission Award, his services could have been validly terminated. The said paragraph reads as under: ---‑

"The appointing authority may terminate the services of any employee by calling upon him to resign or otherwise after the expiry of the period of his probation on giving him one month's notice or pay in lieu thereof,"

11. In the instant case the period of probation expired long before the order of termination of the respondent's services and, therefore, the said paragraph is not applicable.

12. I, accordingly find no merit in this appeal which is hereby dismissed.

A. E.

Appeal dismissed.

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