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Petitioner: GHULAM MUSTAFA KHAIRATI VS Respondent: FEDERATION OF PAKISTANHonorable Justice NAZAR MUHAMMAD SHAIKH (MEMBER)Abdul Ghaffor Mangi,Shahid Anwer Bajwa
2005 P L C (C
2005 P L C (C.S.) 417
[Federal Service Tribunal]
Before Justice (R.) Amanullah Abbasi, Chairman and Nazar Muhammad Shaikh, Member
GHULAM MUSTAFA KHAIRATI
Versus
FEDERATION OF PAKISTAN through Secretary, Ministry of Finance, Islamabad and another
Appeal No. 1472(K) of 1998, decided on 16th February, 2004.
(a) Habib Bank (Staff) Service Rules, 1981‑‑‑
‑‑‑‑R.15‑‑‑Service Tribunals Act (LXX of 1973), Ss.2‑A, 4 & 6‑‑ Termination of services‑‑‑Appeal‑‑‑Services of appellant, who was serving in respondent‑Bank as Senior Executive Vice‑President, were terminated on ground that he was involved in criminal charges and. F.I.R., was registered against him and that he was under arrest‑‑‑Services of appellants were terminated without providing him opportunity of personal hearing and without intimating charges/allegations against him‑‑‑Principle of "Master and Servant" was applied to the appellant while terminating his services without any charge‑sheet, show‑cause notice or personal hearing‑‑‑Appellant's termination was because of his arrest in pursuance of F.I.R. which had been quashed by High Court‑‑ Termination of appellant was effected in undue haste and without ascertaining the correct facts which culminated in arrest of appellant‑‑ Respondent‑Bank should have exercised prudence and investigates circumstances which led to arrest of accused and that was all the more necessary as it was admitted on part of respondent‑Bank that Bank had not initiated any, criminal proceedings against appellant nor there was anything adverse against the appellant‑‑‑Under such situation it was incumbent upon respondent‑Bank to go slow on terminating services of appellant‑‑‑Stand taken by respondent‑Bank that services of appellant were not terminated by way of punishment, but had been terminated on basis ‑Master and Servant" relationship, was a shift in its position of and such fluctuation in respondent's stance did not impart credibility to its action against appellant‑‑‑Delay in filing appeal before Service Tribunal was condoned in circumstances of case‑‑‑Circumstances in which appellant was involved in false criminal charges and was subjected to degradation of arrest in F.I.R. which was quashed had proved that appellant was made a victim of a conspiracy and vengeance of a private complainant which made appellant to undergo mental agony and torture‑‑‑Accepting appeal, order terminating services of appellant, was set aside and he was directed to be reinstated in service with all full monetary and other consequential benefits.
PLD 1987 SC 303; Anisa Rehman's case 1994 SCMR 2232; PLD 2000 SC 1828; Salim Mustafa Shaikh v. S.S.G.C. OLD 2001 SC 176; PLC 2002 (C.S.) 526; PLD 2000 Kar. 128; PLD 1974 Kar. 373 2001 IPLC (C.S.) 316; AIR 1957 SC 38; 1999 PLC 508; Muhammad Ramzan v. National Motors 1980 PLC 780; Fazal Dad v. Attock Electric Company 1997 PLC (C.S.) 364; Zeba Mumtaz's case 1999 PLD SC 1106; PLD 1976 SC 195; PLD 2002 SC 101; 2001 SCMR 1227; 2001 SCMR 1561; PLD 2001 SC 514; Adrian Afzal v. Sher Afzal PLD 1969 SC 187; PLD 1984 SC 194; 1981 SCMR 224; Raziuddin's case PLD 1992 SC 531; 2001 PLC (C.S.) 346; 2002 PLC (C.S.) 1050; PLD 2001 SC 176; PLD 19.93 SC 563; Sui Gas Employee's case 2003 PLC (C.S) 796; Abdul Hafeez Abbai's case 2002 SCMR 1034; 2004 SCMR 146; Muhammad Yaqub v. Pakistan Petroleum Limited and another 2000 SCMR 830; Messrs Pakistan State Oil Company Limited v. Muhammad Tahir Khan and others PLD .2001 SC 980; Teekam Das M. Haseja, Executive Engineer, WAPDA 2002 SCMR 142; WAPDA v. Muhammad Khalid 1991 SCMR 1765; Syed Ali Hasan Rizvi. v. Islamic Republic of Pakistan 1986 SCMR 1086; Muhammad Azhar Khan v. Service Tribunal, Islamabad 1976: SCMR 262; Water and Power Development Authority v. Abdur Rashid Dar. 1990 SCMR 1513; Sher Bahadur v. Government N.‑W.F.P. 1990 SCMR'1519 and 2903 PLC (C.S.) 488 ref.
(b) Master and Servant‑‑‑
‑‑‑‑ Principle of "Master and Servant" relationship was absolutely below the human dignity and could not be sustainable‑‑‑Pleadings on basis of "Master and Servant." relationship should be discarded by litigants as said principle insulted the decency of human being.
Muhammad Ashraf v. D.G. Multan Development Authority 2000 PLC (C.S) 796; Muhammad Akram v. Mst. Farman Bi PLD 1990 SC 28 and PLD 1994 SC 72 and Sui Gas Employees' case 2003 PLC (C.S.) 796 ref.
Abdul Ghaffor Mangi for Appellant.
Shahid Anwer Bajwa for Respondents.
Date of hearing: 31st January, 2004.
JUDGMENT
NAZAR MUHAMMAD SHAIKH (MEMBER).‑‑‑The history of the case is that the Appellant was an employee of the Respondent No.2 since 7‑7‑1997 and was serving as Senior Executive Vice‑President besides being the Member of the Executive Committee of the Respondent‑Bank. Appellant's services were terminated in terms of clause 15 of the Habib Bank (Staff) Service. Rules 1981 by Respondent No.2 vide order dated 26‑3‑1995 which reads as under:‑‑
"HABIB BANK. LIMITED HEAD OFFICE HABIB BANK PLAZA KARACHI PAKISTAN
Muhammad Younus Dalia President HYD/536 MARCH 26,1995.
2,250‑A Block‑6, P.E.C.H.S. KARACHI.
Mr. Ghulam M. Khairati, Senior Executive Vice‑President, (Under Suspension) Camp Jail 03.17‑B‑1, Gulberg‑III, Jail Road, LAHORE LAHORE
Dear Sir,
You are employed as Senior Executive 'Vice‑President in the Bank. You have been involved in criminal charges and F.I.R. has already been instituted and you are under arrest. We also understand that your bail application has also been rejected. Management cannot be expected to keep your post' vacant till such time as you are released. Even otherwise the Bank have lost faith and confidence on as you have been occupying a very high senior and confidential position in the Bank but unfortunately you have been involved in criminal offences.
Thus on the ground of lack of confidence the Competent Authority has terminated your service with immediate effect in terms of clause 15 of the Habib Bank Limited (Staff) Service Rules, 1981 on three months notice salary in lieu of notice. You may collect your dues from the Bank if any.
Your faithfully, (Sd)"
Appellant filed representation to the President of the Respondent‑Bank asserting that his termination orders were void, untenable and in violation of the principles of natural justice. This representation was rejected by the Respondent No.2 vide letter dated 4‑5‑1995. Appellant once again served legal notices dated 3‑6‑1995 and 4‑6‑1995 through his Advocate assailing his termination without personal hearing and without intimating charge/allegations. Respondent No.2 'vide his letter dated 23‑8‑1995 intimated that the Appellant's service were terminated not by way of punishment but on the principle of master and servant relationship. Appellant sent yet another representation to the Respondent No.2 dated 3‑11‑1996 which was also rejected by the Respondent No.2 vide letter dated 3‑12‑1996 reiterating their earlier stand of termination simpliciter obliging the Appellant to file a Constitutional Petition on 22-4‑1997 before the Hon'ble High Court of Sindh to challenge the impugned order dated 23‑3‑1995. This petition was, however, dismissed by Hon'ble High Court for want of jurisdiction in view of insertion of section 2‑A in the Service Tribunals Act of 1973 Hon'ble High Court while passing the said order observed as under:‑-
"The petitioner, apart from the available pleas, would be free to apply for condonation of delay under, section 5 of the Limitation Act for the reason that the Petitioner has been pursuing his Petition diligently and in good faith."
Appellant impugned this order of the Hon'ble High Court before the Hon'ble Supreme Court through Civil Petition for leave of Appeal No. 152 of 1998 which was dismissed by the apex Court vide its order dated 4‑6‑1998 and the order of the Hon'ble High Court was upheld on point of jurisdiction and direct that the Appellant should approach the Federal Service Tribunal. Consequently, Appellant has filed this appeal before this Tribunal on 14‑9‑1998 under section 6 of the Service Tribunals Act of 1973.
2. It would be relevant to recapitulate the events leading to the Appellant's termination from the service of Respondent‑Bank. Appellant was posted as the Provincial Chief of the Respondent‑Bank, Punjab, Sometimes in December, 1994, one Mr. Shahid Nazir, an influential MNA belonging to the ruling party approached the Appellant through the Prime Minister's Secretariat for extending Working Capital Loan Facility in respect of his Mills and the sale of two units of the said Mills which were mortgaged with the Bank. On scrutiny of the documents, Appellant did not accede to the loan request of Mr. Shahid Nazir as he was a major defaulter of the Bank to the tune of Rs.600 million and advised him to approach the Bank's Head Office in this regard. Similar demands by the friends of Mr. Shahid Nazir was also regretted by the Appellant Mr. Shahid Nazir succeeded in getting the loan proposals approved from the Head Office of the Respondent‑Bank and also got the funds released even before the proposal was formally sanctioned. In vengeance, Mr. Shahid Nazir lodged an F.I.R. No.98 of 1994 dated 26‑12‑1994 against the Appellant containing allegations of demanding illegal gratification. Appellant was arrested by F.I.A. on the same day i.e. 26‑12‑1994 and a criminal case against the Appellant was registered under sections 161 and 162 of the Pakistan Penal Code read with section 5(2) of the Prevention of Corruption Act. Appellant was placed under suspension by the Respondent‑Bank vide order dated 27‑12‑1994 ‑because of Appellant's involvement "in a case which pertains to some criminal charges." Appellant's bail application was rejected by the Sessions Judge and by the Hon'ble Lahore High Court but was released on bail by the Hon'ble Supreme Court vide order dated 3‑7‑1995. The criminal case against the Appellant was inordinately delayed .as no charges against the Appellant were framed for years together. Finally, Appellant filed Writ Petition No. 1481 of 2003 before the Hon'ble Lahore High Court at Rawalpindi whereby the F.I.R. No.98 of 1994 was quashed vide judgment dated 20‑12‑2003. The operative part of the said judgment reads as under:‑-
"7. This writ petition accordingly is allowed and the said case F.I.R. No.98 of 1994 dated 26‑12‑1994 registered in the office of the Assistant Director, F.I.A., Lahore, under sections 161/162 P.P.C. read with section 5 of the Prevention of Corruption Act, 1947, is quashed. No orders as to costs."
3. With this backdrop, the learned counsel for the Appellant strenuously arguing, the appeal stated that the Appellant was made a victim of vengeance of Mr. Shahid Nazir, MNA who had approached the Appellant for sanction of loan which was beyond his competence. He then traced the events leading to the arrest of the Appellant and stated that for nine years no challan was submitted for Appellant's trial in alleged crimes. He argued that the Bank promptly suspended the Appellant on 27‑12‑1994 and then terminated his services on 26‑3‑1995 without any show-cause notice or any inquiry which was in negation of the principles of natural justice. He also alleged that the Appellant was also not afforded personal hearing before passing the impugned order dated 23‑3‑1995 in utter disregard of the maxim "audi alteram partem". In support he relied on the rulings of the Hon'ble Supreme Court reported in PLD 1987 SC 303 and 1994 SCMR 2232 (Anisa Rehman's case). He also contended that the Respondent No.2 had misconstrued the import of Service Rules of the Bank which do not confer absolute power on the Respondent to terminate the services of any employee without due process in disregard of the principles of natural justice.
4. Appellant's learned counsel assailed the respondent's comments that the principle of "Master and Servant" was applied to the Appellant while terminating Appellant's services without any Charge‑Sheet, Show- Cause Notice of personal hearing. He argued that termination of Appellant's service on the basis of "Master and Servant" relationship is not valid or legal any more and placed reliance on the ruling of the Hon'ble Supreme Court reported in PLD 2000 SC 1828 and in the case of Salim Mustafa Shaikh v. S.S.G.C. reported in PLD 2001 SC 176.
5. Regarding limitation, learned counsel for the Appellant further argued that the Appellant has filed an application for condonation of delay which had taken place due to Appellant's efforts through several, representations to the Respondent‑Bank for reinstatement as his services had been illegally terminated and was also invoking the superior Courts for redressal of his grievance. He further argued that, the limitation of thirty days would not be applicable as he was diligently perusing his request for reinstatement in service bonafidely and in good faith. He further contended that since the termination of .the Appellant was ab initio void no limitation runs against a void order and in support of his contention he placed reliance on the rulings reported in PLC 2002 (C.S.) 526, PLD 2000 Karachi 128, PLD 1974 Karachi 373 and also on 2001 PLC (C.S.) 316.
6. Summing up his arguments the learned counsel for the appellant contended that the anti‑corruption proceedings against the appellant were in disregard of the Government instructions contained in ESTACODE 1996 Edition, page 582. He further argued that the impugned order was illegal, unjust, void and based on mala fides of the respondents and the impugned action taken against the Appellant was violative of: Articles 2, 3, 4, 8, 14, 18, 27 and 37 of the 1973 Constitution.
7. The learned counsel for the Respondents very eloquently articulating has arguments opposed the appeal. He started his submissions by acknowledging his deep respects for the Appellant and stated that the Bank had no role in the criminal proceedings against the Appellant which were instituted at the behest of a private complainant through the F.I.R. lodged with the F.I.R. He contended that the Appellant's services were terminated due to his continued absence because of his arrest. He argued at great‑length that the Respondent‑Bank being a commercial organization could not keep the Appellant's post vacant for an indefinite period and, therefore, rule 15 of the Bank's Staff Service Rules was invoked which empowered the President to dispense with the services of any employee and accordingly services of the Appellant were terminated with three month's notice pay which was paid. In support of his contention Respondent's Counsel relied extensively on the ruling of the Hon'ble Supreme Court of India reported in AIR 1957 SC 38 referred to the following portion of the said rulings:
"(2) Ashimananda Banerjee was arrested by the Government under the West Bengal Security Act and detained in jail from 25 January, 1949 to 5 April, 1951, The company terminated his services on 22 April, 1949. The Tribunal made an order that he should be re‑employed and that is not now in question. But he further claims that he is entitled to be reinstated. The Appellate Tribunal has accepted that claim on the ground that he had been discharged without the company framing a charge or, holding an enquiry and that the rules of natural justice had been violated. We are unable to agree with this decision. The ground of discharge is the continued absence of the employee and his inability, to do work and it is difficult to see what purpose would be served by a formal charge being delivered to him and what conceivable answer he could give thereto. The order of the Appellate Tribunal is manifestly erroneous and must be set aside."
On this point, the learned counsel also cited the ruling of the Sindh High Court reported in 1999 PLC 508 wherein termination simpliciter upheld as the Appellant's post could not be left vacant indefinitely. He also cited Labour Appellate Tribunal Sindh's decision reported in 1980 PLC 780 herein termination of Appellant was upheld who could not attend to his duties and not because of any misconduct on his part. He also referred to the ruling reported in 1997 PLC (C.S.) 364, which deals with the same issue.
8. The learned counsel for the Respondents further argued that Appellant's termination simpliciter was unassailable in absence of Statutory Rules and referred to para. 4 (ii) of the ruling of the Hon'ble Supreme Court in Zeba Mumtaz's case reported in 1999 PLD SC 1106 which rejected the petitioner's request for reinstatement. The learned counsel for the Respondents further pointed out that the Respondent- Bank had to file suit for recovery of its dues and consequently a decree was obtained where Appellant's three months' notice pay was set off against the recoverable dues.
9. Respondent's learned counsel giving the chronology of the events‑maintained that the Appellant's appeal was badly hit by limitation as the appeal file was late by ten months and eighteen days after the Hon'ble High Court's order dated 26‑11‑1997. He contended that the Appellant filed appeal before this Tribunal on 14‑9‑1998 i.e. seventy- eight days after Hon'ble Supreme Court's dismissal of the Appellant's CPLA on 4‑6‑1994. He stated that after insertion of section 2‑A in the Service Tribunals Act of 1973 the abatement of the matters pending in other Courts was automatic and, therefore, the Appellant should have immediately sought relief from the Federal Service Tribunal without waiting from any Court's order. On point of limitation, he cited rulings reported in PLD 1976 SC 195, PLD 2002 SC 101, 2001 SCMR 1227, 2001 SCMR 1561 and PLD 2001 SC 514.
10. The learned counsel for the Respondents then raised the question of "Master and Servant" and pointed out that since the Respondents did not have Statutory Rules the relationship between the Respondents and Appellant was governed by the principles of "Master and Servant" and, therefore, there was no necessity of issuing any show‑cause notice or affording personal hearing. He also stated that the case of Aneesa Rehman reported in 1994 SCMR 2232 it was established that the person dismissed or removed did not have any right to claim reinstatement but could claim damages as compensation. He stated that this principle was also laid down in the case of Adnan Afzal v. Sher Afzal reported in PLD 1969 Supreme Court 187. He further stated that the Appellant also cannot claim reinstatement as his continued absence obliged the Respondents terminate his services and in support of this contention he also cited rulings reported in PLD 1984 SC 194, 1981 SCMR 224, PLD 1992 SC 531 (Raziuddin's case).
11. The learned counsel for the Respondents further stated that the Appellant has filed this appeal not under section 4 read with section 2‑A of the Service Tribunals Act of 1973 but under section 6.of the Service Tribunals Act of 1973 and according to this the Tribunal' would only consider the issue which was pending at the time of abatement of the proceedings in the Hon'ble High Court with the insertion of section 2‑A in Service Tribunals Act of 1973. He stated that at the time when the Appellant's litigation was pending before the Hon'ble High Court the only issue in question was the limitation and, therefore the Appellant was barred from claiming reinstatement through the instant appeal. In support of his arguments, Learned Counsel for the Respondents relied on the rulings reported in 2001 PLC (C.S.) 346 and 2002 PLC (C.S.) 1050.
12. In rebuttal, the learned counsel for, the Appellant stated that the Respondents have acted very harshly and in undue haste and in all probability under the' instance from the ruling party. He argued that in event of the Appellant's arrest the appropriate course was that the Appellant should have been charge‑sheeted or show‑cause notice should have been issued. He further stated that principle of "Master and Servant" raised by the Respondent's counsel was, not relevant to the facts of the present case and in support cited rulings reported in PLD 2001 SC 176, PLD 1993 SC 563 and also relied on the latest ruling of Hon'ble Supreme Court in the case of Sui Gas employees reported in 2003 PLC (C.S) 796. He further pointed out that the Respondents' objection in respect of appeal under section 6 was also not relevant in the light of the judgment of the, Hon'ble Supreme Court reported in 2002 SCMR 1034 (Abdul Hafeez Abbasi's case). He further pointed out that the Respondents' malice was very evident from the fact that the Appellant's own dues were adjusted against the loan of his wife.
13. Adverting to the issue of limitation raised by the Respondent's counsel, the learned counsel for the Appellant referred to the ruling of the Hon'ble Supreme Court reported in 2004 SCMR 146 where two years4 delay condoned by the Federal Service Tribunal was upheld by the apex Court.
14. We have carefully considered the arguments from both sides and also perused the citations and have carefully read the record of the case.
15. Appellant has filed this appeal against his termination order issued by the Respondent‑Bank on 26‑3‑1995. After pursuing his case before the Hon'ble High Court and Supreme Court, Appellant was obliged to file this appeal before this Tribunal on 14‑9‑1998 under section 6 of the Service Tribunals Act of 1973. Appellant, as mentioned earlier, was arrested on 26‑12‑1994 and was released by the Hon'ble Supreme Court. He then approached the Hon'ble High Court through his Constitutional Petition No.D‑1879 of 1997. The Hon'ble Court had dismissed the petition on the grounds that after insertion of section 2‑A in the Service Tribunals Act of 1973 High Court's jurisdiction was excluded and now the remedy available to the Appellant was through the Service Tribunal. The order of the High Court is reproduced as under:
"26‑11‑1997. Mr. Abdul Qadir Siddiqui for the Petitioner.
The learned counsel 'has contended that an inconsistent stand as to the petitioner's termination has been taken by respondent Habib Bank Ltd., he first indicating that the termination had come about on account of the Petitioner's arrest on a criminal charge and the second because the employee at a later stage claimed to have applied the rule of master and servant. In either case, we are of the view that the employment of the petitioner stands upstaged to that of a civil servant and that has come about on account of certain amendments in law. We have already said elsewhere that such amendments operate from the date pf the parent statute. On all these premises the Petitioner's exclusive remedy lies in the Service Tribunal. Accordingly, while we dispose of the matters listed above in terms the petitioner, apart from other available pleas, would be free to apply for condonation 'under section 5 of the Limitation Act for the reasons that the Petitioners as from 22‑4‑1997 to date has been pursuing this Petitioner diligently and in good faith.
Order accordingly.
(Sd) Wajihuddin Ahmed Chief Justice (Sd) Raja Qureshi Judge."
Appellant then filed the C.P.L.A. No.152 of 1998 against the High Court's order dated 26‑11‑1997 passed in C.P. No.D‑1879 of 1997 which was dismissed by the apex Court vide its judgment dated 4‑6‑1998. The Hon'ble Supreme Court while dismissing the C.P.L.A. referred to above, observed as under:‑‑
"......The High Court was, therefore, right in disposing the appeal with the observation that the Petitioner may approach the Tribunal."
After the Appellant's C. P.L.A. was dismissed by the apex Court, he, has approached this Tribunal.
16. The circumstances leading to the arrest of the appellant and his termination by the Respondent‑Bank and subsequent litigation has been detailed in the preceding paras. We will, therefore, address the contentious issues which are very briefly highlighted hereunder. The learned counsel for the appellant stated that the appellant's termination was because of his arrest in pursuance of F.I.R. No.98 of 1994 dated 26‑12‑1994 which, as stated earlier, has been quashed by the Hon'ble High Court vide judgment dated 20‑12‑2003. As stated above, the services of the Appellant were terminated on 26‑3‑1995 after arrest of appellant by the F.I.A. on 26‑12‑1994 on the basis of aforementioned F.I.R. The termination, as is evident, was done with undue haste and without ascertaining the correct facts which culminated in Appellant's arrest. The Respondent‑Bank should have exercised prudence and investigated the circumstances which led to the arrest of the Appellant and this was all the more necessary as the learned counsel for they Respondents himself admitted while submitting his arguments that the', Bank had not initiated any criminal proceedings against the‑ Appellant and nor did it have anything adverse against the Appellant. Under such: situation, it was, incumbent upon the Bank to go slow on the Appellant's termination as the Appellant had been promptly placed under suspension on 27‑12‑1994 i.e. on the very next day of…
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