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Official Citation: 2024 LHC 1165
Court / Jurisdiction: Lahore High Court
Year of Decision: 2024
Decision Date: 2024-03-27
Parties: Muhammad Tariq Khan vs The National Bank of Pakistan through President/CEO, etc
Ruling Summary: This decision was rendered by the Lahore High Court on 2024-03-27, officially reported as 2024 LHC 1165. In this matter between Muhammad Tariq Khan and The National Bank of Pakistan through President/CEO, etc, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2024LHC1165
Court Name: Lahore High Court Judge(s): Mirza Viqas Rauf Title:Muhammad Tariq Khan vs The National Bank of Pakistan through
President/CEO, etc Case No.: W.P. NO. 2832 OF 2021 Date of Judgment:2024-03-27 Reported As: 2024 LHC 1165, PLJ 2024 Lahore 376, 2024 CLD 1350, 2024 PLC (C.S.) 1507 Result: Petition Allowed Judgment MIRZA VIQAS RAUF, J. This single judgment shall govern the instant writ petition as well as W.P.No.3243 of 2021, raising not only similar questions of fact and law but arising out of common orders as well. Brief Facts 2. The petitioner herein namely Muhammad Tariq Khan was initially inducted in the National Bank of Pakistan (hereinafter referred to as "N.B.P.") as officer Grade III on 17.03.1996 and later on was promoted as officer Grade II vide order dated 03.03.2003. On the other hand, Tahir Zaman, who is the petitioner in connected petition was appointed as cashier on 20.05.1995 and ultimately was promoted as officer Grade III w.e.f 01.12.2002. Both the petitioners were when posted at Rawat Branch Islamabad as joint custodian/ Manager (Operations) and Cashier respectively, an incident of robbery took place which also resulted into the assassination of security guard of the Bank. This resulted into registration of F.I.R No.28 dated 13.02.2005 under sections 302, 396, 409, 412 & 109 of the Pakistan Penal Code, 1860 (hereinafter referred to as "PPC") at Police Station, Sihala Islamabad against unknown culprits. The petitioners were initially suspended from service and subsequently they were also arrayed as accused in the criminal case. In addition to criminal proceedings, the petitioners were also proceeded departmentally. Shahid Pervaiz Dar, Vice President/Manager Cantt. Branch, Rawalpindi was appointed as Inquiry Officer, who issued the statement of allegations on 28.04.2005. As per averments contained in the petitions, the Inquiry Officer though exonerated the petitioners from the allegations but they were informed that competent authority being not in agreement with the Inquiry Officer directed the holding of fresh inquiry. For the said purpose, an inquiry committee was constituted, which issued second statement of allegations to
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the petitioners. On culmination of inquiry, the petitioners were confronted with major penalty of dismissal from service vide order dated 22.03.2007. The petitioners were since confined in jail, so they routed their departmental appeals from prison. In the meanwhile, the petitioners were tried and convicted in the criminal case. Being the condemned prisoners, the petitioners challenged their conviction in appeal before this Court. The appeals were accepted and the petitioners were acquitted from the charges vide judgment dated 08.06.2010. The petitioners, after their release, moved fresh representations/appeals but on failure to decide, the petitioners approached the Federal Service Tribunal, Islamabad. The appeals were, however, dismissed, being not maintainable. The petitioners though challenged the judgment of Federal Service Tribunal before the Supreme Court of Pakistan but remained unsuccessful as the civil petitions were dismissed with the observation that the petitioners could avail appropriate remedies before the proper forum. The petitioners then filed their respective constitutional petitions before this Court, which were allowed with consent by way of a consolidated order dated 09.05.2018 with the observation that the Bank shall hold a fresh inquiry. In pursuance to the above order, Ghulam Mustafa, Vice President/Regional Executive (Credit), Faisalabad was appointed as inquiry officer. On completion of inquiry, the petitioners were found guilty and again they were confronted with major penalty of dismissal from service vide order dated 21.01.2019. The petitioners submitted their representations/appeals before the departmental authority, which remained unattended and ultimately the petitioners voiced their grievance through constitutional petitions before this Court, which were disposed of vide order dated 16.02.2021. The representations/ appeals of the petitioners were ultimately dismissed by way of order dated 29.06.2021, hence these petitions under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as "Constitution"). 3. As both these petitions were admitted for regular hearing, so the respondents submitted their reply wherein it is canvassed that the petitions are not maintainable inter alia; the Court lacks territorial jurisdiction; the petitioners have remedy under the Industrial Relations Act, 2012; "N.B.P" Rules are non-statutory and petitions are rested on factual controversy. 4. Ch. Imran Hassan Ali, Advocate while opening submissions on behalf of petitioners contended that departmental proceedings were since conducted by the Regional Headquarter Rawalpindi so this Court is vested with the territorial jurisdiction and the objection is misconceived. He added that the petitioners are not workmen so they don't have any remedy under the Industrial Relations Act, 2012. It is argued with vehemence that rules governing the employment of "N.B.P" employees are statutory and this Court can invoke the constitutional jurisdiction. Learned counsel submitted that glaring irregularities were committed during the departmental inquiry. It is contended that the findings of inquiry officer are self-contradictory. Learned counsel further contended that main charges against the petitioners were though never proved but they have been held guilty in an illegal and unlawful manner. In order to supplement his contentions, learned counsel placed reliance on The FEDERAL GOVERNMENT through Secretary Interior, Government of Pakistan v. Ms. AYYAN ALI and others (2017 SCMR 1179), NATIONAL BANK OF PAKISTAN and another v. ANWAR SHAH and others (2015 SCMR 434), MUHAMMAD NAEEM v. FEDERATION OF PAKISTAN and others (2023 SCMR 301), FEDERATION OF PAKISTAN through Chairman Federal Board of Revenue FBR House, Islamabad and others v. ZAHID MALIK (2023 SCMR 603) and LPG ASSOCIATION OF PAKISTAN through Chairman v. FEDERATION OF PAKISTAN through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and 8 others (2009 CLD 1498). 5. Adding to the contentions of his counterpart Mr. Muhammad Arshad Tabraiz, Advocate submitted that the petitioners have been found guilty by the inquiry officer on the basis of surmises and conjectures. It is contended that major penalty has been imposed upon the petitioners in a mechanical manner without adhering the principles of natural justice.
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6. Conversely, Malik Muhammad Siddique Awan, Advocate for the respondents, while reiterating the preliminary objections raised in the reply submitted that criminal case was since registered at police station within the territorial limits of Islamabad, so this Court lacks territorial jurisdiction. He also laid much emphasis on the ground that matter in issue entails factual inquiry and this Court cannot substitute the findings of inquiry officer or the appellate authority in writ jurisdiction. 7. Heard. Record perused. 8. Before embarking upon the rigmarole of the factual aspects of the matter, it would be apposite to first attend the objections with regard to maintainability of these petitions. First comes the question of territorial jurisdiction of this Court. As observed earlier that the petitioners are the employees of "N.B.P". In their respective capacities, as officers Grade II and III, they were posted at "N.B.P" Branch Rawat, Islamabad. During their posting, unfortunately an incident of robbery took place in the bank which resulted into registration of a criminal case against unknown accused but later on the petitioners were arrayed as perpetrators of offence. The petitioners were tried by the learned Additional Sessions Judge, Islamabad and ultimately, they were convicted vide judgment dated 15.06.2007. Feeling dissatisfied, the petitioners challenged their conviction through criminal appeals No.180 and 178/2007 before this Court which were allowed by way of judgment dated 08.06.2010 and the petitioners were resultantly acquitted. Simultaneously, the petitioners were also proceeded departmentally. In the first departmental inquiry, the petitioners were absolved from the charges by the inquiry officer. The petitioners were, however, informed through letter dated 27.08.2005 that competent authority while disagreeing with the inquiry officer decided to hold a denovo inquiry. In furtherance whereof, an inquiry committee comprising of Mr. Pervaiz Taj Bhatti, Vice President and Mr. Shahzado Khan Pathan, Vice President was constituted which issued fresh statement of allegations on 03.12.2005. It is evident that second show cause notice was issued to the petitioners by the committee through Regional Office, Bank Road, Saddar, Rawalpindi. It is an undeniable fact that all the proceedings pursuant thereto were conducted at Regional Office, Rawalpindi. Even in the previous round, the petitioners filed W.P.No.2443/2011 and W.P.No.2539/2011, which were allowed vide order dated 09.05.2018 in the following manner: - "6. In view of above, this petition, as well as W.P.No.2443/2011, is allowed, the inquiry and the order dated 22.03.2007, passed by respondent-bank is set aside and the respondent-bank, as submitted by learned counsel of the respondent-bank, shall hold a fresh inquiry to provide a fair right of hearing to the petitioner. This exercise, as suggested by learned counsel for the respondent-bank, shall be completed within three months. The petitioner shall appear in the Regional Office of respondent-bank on 01.06.2018 and no notice to procure his attendance will be issued by the respondent-bank." It would not be out of context to mention here that after the culmination of denovo inquiry, the matter again came up before this Court through W.P.No.1712/2019, which was disposed of vide order dated 16.02.2021. In the wake of above discussion, it can thus safely be held that this Court is vested with the territorial jurisdiction to entertain these petitions. While forming my view I am fortified with the principles laid down in The FEDERAL GOVERNMENT through Secretary Interior, Government of Pakistan v. Ms. AYYAN ALI and others (2017 SCMR 1179). The relevant extract is reproduced below:- 4. As regards the question of territorial jurisdiction, it hardly need any emphasis that the impugned Notification/Memorandum has been issued by the Federal Government, which functions all over the country, and since the respondent No.1 resides in Karachi, and has a right and choice to proceed abroad through Jinnah International Airport, Karachi, and in fact atleast twice earlier she had proceeded to go abroad through Jinnah International Airport, Karachi, though she was stopped owing to the earlier Notifications/Memorandums, and therefore the embargo placed on her leaving the country has in fact taken place at Karachi, which prevention in all likelihood, was to
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be repeated at Karachi in pursuance of the third Notification/Memorandum, and thus giving rise to a cause of action against the third Notification/Memorandum at Karachi because of its taking effect there. It is now well settled that the Federal Government, though may have exclusive residence or location at Islamabad, would still be deemed to function all over the country. In this regard the case of LPG Association of Pakistan through its Chairman v. Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resources Islamabad and 8 others (2009 CLD 1498), may be referred to, whereby the Lahore High Court, after meticulously analyzing the judgments rendered by this Court, as well as of the High Courts on the question of territorial jurisdiction, with regard to the acts, deeds and the legislative instruments of/by the Federal Government, has deduced the jurisprudential principles as follows:- "(A) The Federal Government or any body politic or a corporation or a statutory authority having exclusive residence or location at Islamabad with no office at any other place in any of the Province, shall still be deemed to function all over the country. (B) If such Government, body or authority passes any order or initiates an action at Islamabad, but it affects the "aggrieved party" at the place other than the Federal capital, such party shall have a cause of action to agitate about his grievance within the territorial jurisdiction of the High Court in which said order/action has affected him. (C) This shall be moreso in the cases where a party is aggrieved by a legislative instrument (including any rules, etc.) on the ground of it being ultra vires, because the cause to sue against that law shall accrue to a person at the place where his rights have been affected. For example, if a law is challenged on the ground that it is confiscatory in nature, violative of the fundamental rights to property; profession; association etc. and any curb has been placed upon such a right by a law enforced at Islamabad, besides there, it can also be challenged within the jurisdiction of the High Court, where the right is likely to be affected. In this context, illustrations can be given, that if some duty/tax has been imposed upon the withdrawal of the amounts by the account holders from their bank account and the aggrieved party is, maintaining the account at Lahore though the Act/law has been passed at Islamabad, yet his right being affected where he maintained the account (Lahore), he also can competently initiate a writ petition in Lahore besides Islamabad; this shall also be true for the violation of any right to profession, if being conducted by a person at Lahore, obviously in the situation, he shall have a right to seek the enforcement of his right in any of the two High Courts." And thus whether or not the subject Notification/Memorandum was issued on the recommendation of the Punjab Government has no relevance to the question of the Court's jurisdiction in the matter. Furthermore it is also factually incorrect to claim that the Notification/ Memorandum has been issued in pursuance of an order passed by the learned Lahore High Court as the learned High Court's order dated 17.5.2016, being referred to in this regard, contain only a direction to the petitioner to decide a certain application submitted by the petitioner before it, in accordance with law. Absolutely no direction or order was passed by the learned Lahore High Court for issuance of any Notification/Memorandum. Even otherwise such order of the learned High Court cannot be successfully used to plead lack of jurisdiction of the learned High Court of Sindh in the matter, because brought under challenge before the High Court of Sindh was the Notification/ Memorandum issued by the petitioner and not any act or deed of the Government of Punjab. Furthermore as noted hereinbefore, the earlier two Notifications/Memorandums have been successfully challenged before the learned High Court of Sindh as the said Court in view of the above principle, has entertained those petitions." 9. In the case of LPG ASSOCIATION OF PAKISTAN through Chairman v. FEDERATION OF PAKISTAN through Secretary, Ministry of Petroleum and Natural Resources, Islamabad and 8 others (2009 CLD 1498), a learned Single Bench of this Court held as under: -
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6. From the judgments cited at the Bar on both the sides, the portions whereof have been extensively reproduced, the following ratio is deducible:-- (A) The Federal Government or any body politic or a corporation or a statutory authority having exclusive residence or location at Islamabad with no office at any other place in, any of the Provinces, shall still be deemed to function all over the country. (B) If such Government, body or authority passes any order or initiates an action at Islamabad, but it affects the "aggrieved party" at the place other than the Federal capital, such party shall have a cause of action to agitate about his grievance within the territorial jurisdiction of the High Court in which said order/action has affected him. (C) This shall be moreso in the cases where a party is aggrieved or a legislative instrument (including any rules, etc.) on the ground of it being ultra vires, because the cause to sue against that law shall accrue to a person at the place where his rights have been affected. For example, if a law is challenged on the ground that it is confiscatory in nature, violative of the fundamental rights to property; profession, association etc. and any curb has been placed upon such a right by a law enforced at Islamabad, besides there, it can also be challenged within the jurisdiction of the High Court, where the right is likely to be affected. In this context, illustrations can be given, that if some duty/tax has been imposed upon the withdrawal of the amounts by the account holders from their bank account and the aggrieved party is maintaining the account at Lahore, though the Act/law has been passed at Islamabad, yet his right' being affected where he maintains the account (Lahore), he also can competently initiate a writ petition in Lahore besides Islamabad; this shall also be true for the violation of any right to profession, if being conducted by a person at Lahore, obviously in the situation, he shall have a right to seek the enforcement of his right in any of the two 'High Courts. (D) On account of the above, both the Islamabad and Lahore High Courts shall have the concurrent jurisdiction in certain matters and it shall not be legally sound or valid to hold that as the Federal Government etc. resides in Islamabad, and operates from there; the assailed order/action has also emanated from Islamabad, therefore, it is only the Capital High Court which shall possess the jurisdiction. The dominant purpose in such a situation shall be irrelevant, rather on account of the rule of choice, the plaintiff/petitioner shall have the right to choose the forum of his convenience. 10. So far status of rules of "N.B.P" governing its employees is concerned, it is observed that "N.B.P" was established and incorporated under the National Bank of Pakistan (Ordinance No.XIX of 1949) as a body corporate having perpetual succession and a common seal, and shall by the said name sue and be sued. In order to regulate the services of the "N.B.P" employees, the National Bank of Pakistan Staff Service Rules, 1973 (hereinafter referred to as "Rules, 1973") were made. The above rules followed the National Bank of Pakistan (Staff) Service, Rules, 1980 (hereinafter referred to as "Rules, 1980"), which were given effect from 1st January, 1980. It would be imperative to mention here that "Rules, 1973" were not repealed by the later rules and as such same remained alive for all intent and purposes. 11. In the case of MUHAMMAD TARIQ BADR and another v. NATIONAL BANK OF PAKISTAN and others (2013 SCMR 314), the question with regard to the nature of the "Rules, 1980" and their effect on the "Rules, 1973" came under discussion before the Supreme Court of Pakistan and it was held as under: - 9. Be that as it may, dilating upon the first proposition set out above, suffice it to say that according to the provisions of section 20 of the Act, 1974 the rule making power is conferred upon the Federal Government in the terms as under:-- "Power to make Rules. The Federal Government may, by notification in the official Gazette, make Rules to provide for all matters for which provision is necessary or expedient for the purpose of
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giving effect to the provisions of this Act." It is an admitted position that 1980 Rules have not been framed as per the mandate of law ibid, inasmuch as these rules are neither made by the Federal Government nor published in the, official gazette. There is also no cavil/quibble that the said rules have not been composed/enforced with the prior approval of the Government or any subsequent benediction was conferred to those by the Government. Rather (admittedly) the rules have been formulated by the Board of the respondent-bank constituted under section 11 of the Act, 1974 which stipulate the general power of the Board pertaining to policy making and the administration and management of the nationalized banks. Subsection (4) thereof specifically provides "The general direction and superintendence of the affairs and business of a bank, and overall policy making in respect of its operations, shall vest in its Board". Furthermore, as per subsection (5) of the Act, 1974 the Board shall determine "personal policies of the bank, including appointment and removal of officers and employees" and in accordance with subsection (10) "All selections, promotion and transfer of employees of banks except the President and decisions as to their remuneration and benefits shall be made by the President in accordance with the evaluation criteria and personnel polices determined by the Board". From the above it is unequivocally clear that the 1980 Rules have been framed by the Board of the bank pursuant to its authority in the nature of management/ superintendence of the affairs of the bank and/or the policy making power; however for all intents and purposes, it is so done in the exercise of an executive authority under the statute, but having even no remote or possible or permissible connection and nexus to any statutory jurisdiction, these rules thus can at best be termed, understood, comprehended and construed merely as the guidelines or the domestic instructions of the N.B.P., for the purposes of highlighting, elucidating or beneficially revamping the service structure of bank's employees for their advantage, provided the same do not in any manner contravene the 1973 Rules, but nothing more than that can be imputed to those; and in any case the rules do not enjoy the status of a statutory instrument. And this is not disputed by the parties, therefore, the legal question which eminently calls for the resolution, is that whether non- statutory rules (though we have herein construed these as mere instruction etc.) have, and/or can repeal, rescind or displace the statutory rules of 1973? To plead so, it has been inter alia submitted on the bank's behalf that on account of section 13(2) of the Act, 1974 particularly the expression "Notwithstanding" which shall operate as a non obstante provision/ clause, even though 1980 Rules are non-statutory, yet as per the force of the law afore-stated, these (1980 Rules) have the overriding effect qua the 1973 Rules. In order to appreciate the above contention, it shall be germane to reproduce the whole section 13 which reads as follows: -- "13. Provisions regarding staff. (1) Save as otherwise provided in this Act, all officers and other employees of a bank shall continue in their respective offices and employment on the same terms and conditions, remuneration and rights as to pension and gratuity, as were applicable to them immediately before the commencing day. (2) Notwithstanding any law or any provision contained in a contract agreement, letter of appointment, rules or regulations of a bank, every officer and employee of a bank shall be liable to transfer to any of its branches in or outside Pakistan or to any other bank. Provided that his status and emoluments shall not be adversely affected." A plain reading of section 13(1) ibid unambiguously postulates that the service of the officers and other employees of the nationalized banks have in fact and in true sense and spirit been secured and protected (emphasis supplied) as per force thereof "on the same terms and conditions" etc. which were applicable to them immediately before the commencement of the Act, 1974. It is an admitted and undisputed factual reality that before the commencing day of 1974 Act, 1973 Rules were validly in force and for all intents and purposes were serving as the conclusive terms and
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conditions of service of the employment for the N.B.P. officers etc. Thus, by virtue of the section 13(1), such rules were specifically saved, guarded and shielded instead of having been displaced/repealed/rescinded overridden. The language of the section 13(1) without any shadow of doubt, spells out the clear intendment of the legislature to preserve the earlier terms and conditions of the nationalized bank, which in the present case undoubtedly were 1973 Rules, rather than being obliterated. The argument of the learned counsel for the respondent that the expression "notwithstanding" appearing in section 13(2) should be construed as a non obstante provision/clause to annul and cancel 1973 Rules 'as a whole' and thus be replaced by 1980 Rules is doubtlessly misconceived and unfounded. The protection and security provided under section 13(1) which in fact is absolute and unambiguous in nature cannot be negated and vitiated by section 13(2) on account of the expression…
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