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Petitioner: ABDUL MAJID QURESHI VS Respondent: NATIONAL BANK OF PAKISTAN
1997 P L C (C
1997 P L C (C.S) 671
[Karachi High Court]
Before Rasheed Ahmed Razvi, J
ABDUL MAJID QURESHI
versus
NATIONAL BANK OF PAKISTAN through President
Suit No. 572 of 1991, decided on 4th December, 1996.
(a) National Bank of Pakistan (Staff) Service Rules, 1973‑‑‑
‑‑‑‑R. 39‑‑‑National Bank of Pakistan (Staff) Service Rules, 1980, R. 39‑‑ Bank employee‑‑‑Dismissal from service‑‑‑Applicability of Rules‑‑‑Suit for declaration and damages‑‑‑Plaintiff's plea in his suit that terms and conditions of plaintiff's service were governed by National‑ Bank of Pakistan (Staff) Service Rules, 1973 was not denied by defendant (Bank) in its written statement‑‑‑Defendant claimed that new Service Rules viz. National Bank of Pakistan (Staff) Service Rules, 1980 had, come into force with effect from 1st January, 1980‑‑‑Plaintiff had rightly contended that rights and privileges enjoyed by plaintiff under earlier Rules of 1973, could not be taken away by defendant through subsequent amendment in Rules‑‑‑National Bank of Pakistan (Staff) Service Rules, 1973 were, thus, applicable to plaintiff's case, which did oblige defendant to supply copies of first inquiry report.
National Bank of Pakistan v. Sindh Labour Appellate Tribunal and 2 others and Jan Muhammad v. The General Manager, Karachi Telecommunication Region, Karachi and another 1993 SCMR 1440 ref.
The Vice‑President (Admn.), National Bank of Pakistan and others v. Basharat Ali and others 1996 SCMR 201; A. Ghani Sayeed v. National Bank of Pakistan 1989 PLC (C.S.) 249; Sarfraz v. General Manager (Leaf), Pakistan Tobacco Company Limited and others 1988 SCMR 1352 and Dawood Cotton Mills Limited v. Guftar Shah and another PLD 1981 SC 225 rel.
(b) National Bank of Pakistan (Staff) Service Rules, 1973‑‑‑
‑‑‑‑R. 39‑‑‑Qanun‑e‑Shahadat (10 of 1984j, Art. 2(4)‑‑‑Proof of fact in issue‑‑‑Plaintiff's evidence Being more consistent than defendant's evidence, plaintiff's contention regarding fact in issue, stood proved.
(c) National Bank of Pakistan (Staff) Service Rules, 1973‑‑
‑‑‑‑R. 39‑‑‑Bank employee‑‑‑Enquiry proceedings‑‑‑Deposition sheets pertaining to Bank Officers clearly indicated that their statements were recorded on some previous occasion while plaintiff was allowed to cross- examine them subsequently during trial‑‑‑Copies of statements of witnesses were never supplied to employee‑‑‑Note of Enquiry Officer to the effect that prior to cross‑examination of prosecution witnesses they had endorsed their previous statements was available on record‑‑‑Procedure adopted by Enquiry Officer in holding site inspection and examination of witnesses in absence of employee was in violation of principles of natural justice and had resulted in serious prejudice to plaintiff‑‑‑Procedure adopted by Enquiry Officer was, thus, not in consonance with law.
(d) National Bank of Pakistan (Staff) Service Rules, 1973‑‑‑
‑‑‑‑R. 39‑‑‑Specific Relief Act (I of 1877), S. 42‑‑‑Dismissal of employee‑‑ Validity‑‑‑Defendant failed to observe principles of natural justice as well provision of R. 39, National Bank of Pakistan (Staff) Service Rules, 1973 while dismissing employee from service‑‑‑Dismissal of employee from service of defendant was, thus, bad in law, mala fide, illegal and void ab initio‑‑‑Plaintiff was, therefore, entitled to all benefits, salaries/bonuses/increments of which he was deprived‑‑‑Employee was also awarded specified amount as compensation/damages for tortious act of defendant.
Secretary to Government and 4 others v. Kazi Abdul Kafil PLD 1978 SC 242 and Sheo Dutt and others v. Pushi Ram and others AIR 1947 All. 229 rel.
Sohrab Khan Kalwar v. Secretary to‑the Government of Sindh, Department of Food and others PLD 1980 SC 279; Rana Usman Ali and another v. National Bank of Pakistan and another 1982 CLC 1234; Malik and Haq v. Chaudhry Muhammad Shamsul Islam PLD 1961 SC 531 and District Board, Lahore v. Agha Muhammad Khan PLD 1957 Lah. 780 ref.
(e) Administration of justice‑‑
‑‑‑‑ Duty of Court‑‑‑Courts are required to pass effective decree and not merely paper decree‑‑‑Courts are empowered to mould relief according to changed and altered circumstances of case, even if such relief has not been expressly claimed, in order to do complete and substantive justice provided grant of such relief is within jurisdiction of Court.
Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan and another PLD 1989 Kar. 404; Samar Gul v. Central Government and others PLD 1986 SC 35; Alvia Tableeghi Trust and 8 others v. Mujibur Rehman Alvi and 7 others 1984 CLC 796 and Amina Begum and others v. Mehar Ghulam Dastagir PLD 1978 SC 220 rel.
M. Jamil for Plaintiff. Bilal A. Khawaja and Raja Shams‑uz‑Zaman for Defendants.
Dates of hearing: 29th May and 11th November, 1996.
JUDGMENT
This is a suit for declaration and damages, filed by an officer of the defendant‑bank, who on 3rd December, 1979 was suspended from bank service and was finally dismissed on 15th September, 1980. In this suit it is claimed that the acts of the defendant‑bank were ultra vires, illegal, mala fide and without jurisdiction, which resulted in unlawful dismissal of plaintiff.
2. Initially, the plaintiff was appointed on 1st July, 1951 as Senior Auditor/Assistant Vice‑President in the Inspection Division of the defendant bank. It is the case of the plaintiff that the defendant‑bank is a statutory body, constituted under Ordinance XXIX of 1949; that the terms and conditions of its employees are governed by the National Bank of Pakistan (Staff) Service Rules, 1973; that due to one anonymous complaint against the plaintiff an inquiry was conducted by the defendant-bank at the back of the Plaintiff; that on 3rd December, 1979 the plaintiff was charge‑sheeted and was put under suspension; that the person issuing order of suspension and charge‑sheet was neither authorised nor competent in view of Circular No.ADM.EER/74/64, dated 16th July, 1974; that the plaintiff denied all the allegations and submitted his explanation in detail, which was not forwarded to the competent Authority; that on 5th January, 1980 the plaintiff applied for supply of copies of statements, complaint, cash memos and other record pending before the Inquiry Officer but no such documents were provided; that on 30th May, 1980 one Saeed Akhtar, Executive Vice‑President was deputed to investigate the case against the plaintiff, as provided under Rule 39 of the Staff Service Rules, 1973; that the inquiry was already in progress when the plaintiff was asked to join the same; that the inquiry was not conducted according to the Rules and Regulations of the Bank; that the Inquiry Officer violated principles of natural justice and concluded the inquiry proceedings in haste; that the plaintiff was not allowed to produce his evidence; that the conduct of the Inquiry Officer throughout the proceedings was bias; that on 15th September, 1980 plaintiff was dismissed from service of the defendant‑bank with the further order for recovery of amount of Rs.22,636 paid during the period of suspension; that the second show‑cause notice was issued to the plaintiff without giving him an opportunity to explain the adverse findings contained in the first inquiry report; that the plaintiff filed his appeal against the order of dismissal before the competent Authority, which was dismissed on 5th April, 1983; that against the said appellate order the plaintiff filed a Constitutional Petition No. D‑237 of 1991, which came up for hearing before a learned Division Bench of this Court and the case was remanded to the appellate authority of the defendant bank with the direction to dispose of plaintiff's appeal within three months after hearing the plaintiff; that on 7th October, 1990 the plaintiff was given a formal hearing; that the plaintiff also submitted his written arguments before the appellate authority; that on 6th January, 1991 the plaintiff was informed that his appeal had been dismissed by the appellate authority; that the defendant‑bank and appellate authority acted in violation of the Bank's rules and regulations and against the principles of natural justice and did not comply the order of Division Bank of this Court. In view of these alleged backgrounds of the case, the plaintiff has prayed for the following reliefs:‑‑
(a) Declaration that the order of the defendant‑bank, dated the 3rd December,‑ 1979 and 15th September, 1980, suspending and dismissing the plaintiff from service as well as the order of the Appellate Authority, dated, the 6th January, 1991 rejecting his statutory appeal, are ultra vires, coram non judice, illegal, mala fide, without jurisdiction and of no legal effect; and further that the plaintiff continued in the service of the defendant‑bank till age of his superannuation entitled to benefits of service being enjoyed by him at the time of issue of the original impugned orders.
(b) Decree directing the defendant‑bank to grant all the benefits of service including salary and allowances, gratuity, pension and other rights which the plaintiff would have ordinarily derived, had the aforesaid impugned orders not been passed against him.
(c) Grant such further reliefs including compensation for mental torture and character assassination.
(d) Costs of the suit.
3. The defendant‑bank denied all the allegations contained in the plaint pertaining to the illegal, mala fide and unauthorised acts of the defendant‑bank and the appellate authority. The case of the defendant‑bank is that upon receipt of complaint against the plaintiff a proper and thorough investigation was conducted, which suggested involvement of the plaintiff in the commission of forging bills of hotel; that the order of suspension and issuing charge‑sheet were according to the rules and regulations of the bank; that the explanation submitted by the plaintiff was found to be unsatisfactory; thus the competent Authority appointed an Inquiry Officer; that the National Bank of Pakistan (Staff) Service Rules, 1973 were revised on 1st January, 1980, which are applicable on the plaintiff; that the entire inquiry was conducted strictly in accordance with service rules; that no illegality or irregularity was committed by the Inquiry Officer during the inquiry; that no prejudice was caused to the plaintiff during the holding of inquiry; that according to the inquiry report a case of misconduct was proved against the plaintiff, who was accordingly dismissed; that the appellate authority dismissed the plaintiff's appeal with cogent reasons; that the plaintiff was granted personal hearing in view of the order passed in Constitutional Petition No. D‑237 of 1991 and thereafter, his appeal was rejected vide order, dated 6th January, 1991; that the order passed by the Board of Directors in rejecting plaintiff's appeal is legal, justified and with cogent reasons; that the said suit is liable to be dismissed with costs.
4. In view of the above pleadings of the parties, on 3rd May, 1992, following consent issues were adopted by this Court which were brought on record as Exh. 1:‑‑
(1) Whether the impugned disciplinary action by the defendant‑Bank was taken in derogation/violation of the statutory Rules governing the service conditions of the plaintiff?
(2) Whether the National Bank of Pakistan (Staff) Rules of 1973 held the field at the time of issue of charge‑sheet i.e. 15‑12‑1979 or those of 1980?
(3) Whether the plaintiff was serving the defendant‑Bank in the Grade of Assistant Vice‑President or in the Grade of Officer Grade‑I? .
(4) Whether the principles of natural justice were violated by the defendant‑Bank by, inter alia:
(i) By refusing to give copies of documents to enable the plaintiff to demolish the case set up against him.
(ii) By examining 6 witnesses out of 10 at the back of the plaintiff and using their statements against him which were without cross.
(iii) By refusing to give the Enquiry Officer's report which was needed by the plaintiff for his statutory appeal to the competent Authority and thus caused great prejudice to him.
(5) Whether the explanation dated 30‑12‑1979 together with the charges against him were submitted to the authority competent to award punishment which in the case of the plaintiff was the Executive Board of the defendant‑Bank?
(6) Whether Senior Vice‑President and Executive lice‑President were competent Authorities to issue suspension order and charge‑sheet respectively to the plaintiff?
(7) Whether the plaintiff was afforded fair and reasonable opportunity to defend himself?
(8) Whether the plaintiff is entitled to recover Rs. 5 lakh from the defendant‑Bank for the tortious acts of its employees?
(9) Whether the impugned order has been passed perfunctorily and mechanically without the least application of mind?
(10) Whether the appellate authority of the defendant‑Bank has contemptuously brushed aside the order of this Hon'ble Court by not deciding all legal pleas raised by the plaintiff in his statutory appeal?
In support of his case, plaintiff has examined himself and has produced several documents as Exhs. P.1 to P.11 One Shahzad Ahmad Khan, from the Disciplinary Department of the defendant‑bank was examined, who has also produced several documents. Plaintiff and defendant have filed their respective written arguments, which were perused by me. I have also heard arguments of Mr. Muhammad Jamil, for the plaintiff and Mr. Raja Shamsuzzaman, for the defendant. My findings on the above issues are as follows:‑‑
ISSUE NO. 3
5. I have taken up this issue as its effect will determine as to which service rules are applicable in the plaintiff's case. The defendant‑bank has not seriously contested this issue. In paragraph 1 of the plaint it is claimed by the plaintiff that at the time of his appointment he was Assistant Vice President which fact was not denied by the defendant‑bank in its written statement. In cross‑examination D.W. Shahzad Ahmad Khan, witness of the defendant‑bank, admitted that the plaintiff was an employee of Category I and was serving as Assistant Vice‑President since 1st May, 1977. In view of this admission, I accordingly answer Issue No. 3 in affirmative.
ISSUE NO. 2
6. It is an admitted fact that the charge‑sheet as well as suspension order was issued on 15th July, 1979 when the National Bank of Pakistan (Staff) Service Rules, 1973 were applicable. Facts mentioned in paragraph 2 of the plaint that the terms and conditions of the plaintiff's service are governed by Rules 1973 was not denied by the defendant in their written statement. In paragraph 6 of the written statement it is claimed by the defendant‑bank that from 1st January, 1980 new service rules became applicable. It was contended by the plaintiff that the rights and privileges enjoyed by the plaintiff under Rules, 1973 cannot be taken away by the 'defendant through subsequent amendment in Rules. In support of his contention he has produced a judgment of Division Bench of this Court in the case of National Bank of Pakistan v. Sindh Labour Appellate Tribunal and 2 others as Exh. P.1 in his evidence and contended that on the facts of the case the Rules of 1973 are attracted. He has referred to the following observation of the learned Division Bench of this Court comprising of Ajmal Mian and Abdul Rahim Kazi, J. (as their lordships then were):‑‑
"The upshot of the above discussion is that we hold that the petitioner Bank is carried on by or under the authority of the Federal Government and that the Statutory Rules of 1973 do exist and are applicable. The provisions of the Ordinance of 1968 are, therefore, not applicable to the present case but the services of the employees of the petitioner are governed by the National Bank of Pakistan (Staff) Rules, 1973 .
...It is an admitted position that the action has not been taken under the National Bank of Pakistan (Staff) Services Rules, 1973 but the same has been initiated by the petitioner Bank under the provisions of the National Bank of Pakistan (Staff) Service Rules of 1980 which we have already held above are not the Statutory Rules but can at the most be construed as departmental instructions. Thus, the action initiated against the respondents by the petitioner, from the very inception, that is, the issuance of charge‑sheet and all subsequent proceedings are without lawful authority."
7. As a result of the above discussion, it is held that the Rules 1973 are applicable to the plaintiff's case.
ISSUE NO. 1
8. This issue pertains to the main controversy in the suit. The plaintiff has produced Chapter IV (Discipline and General Conduct) of the National Bank of Pakistan (Staff) Service Rules, 1973 as Exh. P. 4. The authenticity of these rules was not challenged by the defendant‑bank during cross -examination of the plaintiff and it can be safely presumed that the provisions cited in this Chapter IV were admitted by the defendant‑bank. The first violation of this Rule as contended by the plaintiff is the issuance of order of suspension and the charge‑sheet‑, which were not issued by the competent Authority i.e. President of the defendant‑bank. From perusal of Annexures 'A' and 'B', filed with the plaint, it is evident that the plaintiff was suspended vide order, dated 3rd December, 1979 passed by the Senior Vice- President. The letter dated 3rd December, 1979 (Annexure 'A' to the plaint), which has not been denied by the defendant‑bank shows that it was an order of the Senior Vice‑President. Nowhere it is mentioned that the said letter of suspension was issued under the orders of competent Authority. Likewise, notice of imposition of penalty (charge‑sheet), dated 15th December, 1979 (Annexure 'B' to the plaint) which was again not denied by the defendant‑bank reveals that the same was issued by the Executive Vice -President. It is not disclosed in this charge‑sheet whether the same was issued by the competent Authority, although the defendant‑bank has stated in its written statement that all the action(s) against the plaintiff were confirmed by the President of the defendant‑bank. It was denied by the defendant's witness that the President is competent to suspend and issue charge‑sheet to an Assistant Vice‑President. However, he expressed his inability to show through any document that the order of suspension and the charge‑sheet were duly approved and authorised by the President of the defendant‑bank. This witness had further admitted that the Executive Board of the defendant‑bank was the competent Authority to consider the explanation of the plaintiff, dated 30th December, 1979 but further stated that since the Rules, 1973 were amended as such it was not required. Again he admitted that according to Rule 39 of the Rules, 1973 it was the Executive Board competent to award punishment to the plaintiff but again asserted that the said Rules were replaced by the Rules, 1980. He expressed his ignorance about the fact whether Enquiry Officer Saeed Akhtar was appointed by the Executive Board. It was argued on behalf of the defendant‑bank that the plaintiff has failed to produce any documentary evidence to the effect that President of the defendant‑bank was competent authority in the plaintiff's case and, therefore, this issue is to be answered against the plaintiff. This argument is not tenable as the Board of Directors in their detailed reply vide Exh. P.11 have admitted that "record of the bank shows that these orders were duly approved and authorised by the President of the Bank, who was duly authorised under the Rules to that effect", but no such documentary evidence was produced to substantiate this allegation. In my view this argument equally goes against the defendant‑bank. In every Government Department and statutory bodies there are approved lists of authorised/competent officers in respect of different grades of employees. Such lists must have also been prepared in the defendant‑bank but neither such list nor the entire rules were produced before this Court in order to reach to a just conclusion. It is an admitted fact that the plaintiff is out of bank service since 15th December, 1979 and, therefore, he has no access to the bank record. In such circumstances a reasonable explanation is available with the plaintiff for non‑production of such important documents but there is no reason why the defendant‑bank has not produced these documents, which invites this Court to draw an adverse inference, that in case, if such documents may have been produced it would have gone against the defendant‑bank. On this issue I am of the view that the) plaintiff's evidence is more consistent, tangible, reliable and convincing than the defendant's evidence. I am, therefore, of the opinion that in the plaintiff's case it was the President of the defendant‑bank, who was the competent Authority and, therefore, hold that order of suspension, dated 3rd December, 1979 and the charge‑sheet, dated 15th December, 1979 were not issued by the competent Authority.
9. The second violation pointed out by the plaintiff is that the proceedings and recording of evidence before the Enquiry Officer did not meet the minimum standard prescribed by the law and the relevant rules which had resulted in miscarriage of justice. It is pertinent to note that the plaintiff was demanding a copy of the inquiry report since long but it was for the first time that the said inquiry report was produced alongwith the affidavit‑in‑evidence of D.W. Shahzad Ahmed Khan. Perusal of this inquiry report indicates that the Enquiry Officer made "surprise visit" to Hyderabad on 29th April, 1980, in order to ensure that the relevant records are not manipulated or the person(s) concerned may not be influenced, therefore, he did not issue any intimation to any one. This report further indicates that he checked the record of Hotel Palace, Gari Khata, Hyderabad, and even examined one witness namely Mehdi Muhammad, who at the relevant time was performing his duties as Hotel Manager. He also examined other bank officers present in the said Hotel premises. From the deposition sheets pertaining to the bank officers namely Muhammad Ismail, Maftoon Ali Khan and Baqar Hussain Zaidi, it is clearly evident that their statements were recorded on some prior occasion anti the plaintiff was allowed to cross- examine them subsequently during enquiry. Neither the inquiry report, dated 30th June, 1980 nor these deposition sheets indicate that copies of the statements of these witnesses were ever supplied to the plaintiff. There is a note of Enquiry Officer prior to the cross‑examination of prosecution witnesses that the witness had endorsed his previous statement and has affixed the date under his signature which is the date of the appearance of witness before the Enquiry Officer.
10. Another important factor of the departmental inquiry is that the allegations against the plaintiff were that he had claimed the room charges o the hotel on higher side showing that it was air‑conditioned hotel. The charge sheet indicates the period 15th July, 1978 to 15th November, 1978 when the plaintiff visited Hyderabad for audit purpose. The inquiry report is mainly based‑ on one of the grounds that Enquiry Officer himself visited on 29th April, 1980, after a lapse of nearly two years and did not find any air -conditioner in that hotel. All the evidence produced by the defendant‑bank is to the period pertaining to April, 1980 when no air‑conditioner or any good furniture was found in the room allegedly occupied by the plaintiff during his stay in the year 1978. The witnesses produced by the defendant‑bank are all its employees and never stayed with the plaintiff. During cross‑examination of prosecution witnesses, the plaintiff has suggested several names, who are all senior officers of Audit Department, who at the relevant time stayed with the plaintiff in the said hotel but none was produced by the defendant‑bank. During‑ cross‑examination the defendant‑bank's witnesses namely Muhammad Ismail, Maftoon Ali Khan and Baqar Hussain Zaidi were found not sure as to how many times‑they visited Hotel Palace during the period July/December, 1978. None of the witnesses are consistent on the point of floor, where the plaintiff was occupying his room. They have all admitted that the word "centrally air‑conditioned" was found written on the main door of the hotel. The manner in which the question and answer were recorded without either recording examination‑in‑chief and without placing earlier statement of witnesses on record, the procedure adopted by the Enquiry Officer was neither proper nor justified. In absence of examination‑in‑chief, it is difficult to assess whether there was any consistency or inconsistency. I am unable to understand as to how the Enquiry Officer Pr for that matter the appellate authority came to the conclusion that the plaintiff was guilty. I would like to make reference to a decision of the…
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