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Petitioner: MUHAMMAD ASHRAF VS Respondent: THE PRESIDENT, NATIONAL BANK OF PAKISTAN, KARACHI
1990 P L C (C
1990 P L C (C.S.) 253
[Lahore High Court]
Before Ijaz Nisar, J
MUHAMMAD ASHRAF
versus
THE PRESIDENT, NATIONAL BANK OF PAKISTAN,
KARACHI and another
Writ Petition No. 1822 of 1988, decided on 10th February, 1990.
(a) National Bank of Pakistan (Staff) Service Rules, 1980- ---
----R. 15(1)---Bank employee---Dismissal from service on charge of irregularities- Departmental authorities, accepting appeal of Bank employee ordered his reinstatement in service---Bank employee, however, was not allowed to resume his duty but was subsequently issued a fresh communication to the effect that his appeal stood dismissed---Legality of rescission of order---Power of receding till a decisive step is taken is available to the Government or the relevant authorities but subject to the exception that where the order had taken legal effect, and in pursuance thereof, certain rights had been created in favour of any person, such order cannot be withdrawn or rescinded to the detriment of his rights.--- [Locus poenitentiae---(Vested right).
Pakistan v. Himayat Ullah Farooqi P L D 1969 S C 407; Lt.-Col. Butta Charia v. The State and 2 others P L D 1964 S C 503 and Sh. Muhammad Nawaz v. The Secretary, Irrigation and Power, Government of Baluchistan Quetta and another P L D 1973 Quetta 14 ref.
(b) Civil service--
--- Natural justice, principles of---Withdrawal of order of reinstatement in service of an employee without hearing him is violative of the principles of natural justice because in all proceedings by whomsoever held, whether judicial or administrative, principles of natural justice have to be observed if the proceedings were to result in the consequences affecting person or property or other right of the person concerned.
(c) National Bank of Pakistan (Staff) Service Rules, 1980--
---R. 15(1)---Rescission of order of reinstatement in service---Authority's contention that as the order of reinstatement had not been acted upon, competent authority could recall the same, seemed devoid of force because a right had already accrued to petitioner to claim the advantage given to him under the said order particularly when the same was communicated to the relevant authorities---Question as to whether said order had been acted upon would be determined by the fact that the authority exercising such power had done that which was necessary for it to make the order effective---When such a step had been taken, the order would be deemed to have been acted upon conferring a right upon the person concerned.
(d) National Bank of Pakistan (Staff) Service Rules, 1980--
---R. 15(1)---Constitution of Pakistan (1973), Art. 199---Rescission of order of reinstatement in service---Legality---Entitlement to relief in Constitutional jurisdiction---Authority's contention that employee could not derive any benefit on the basis of a stolen document containing order of reinstatement because it was never conveyed to him, repelled---He d; although conduct of petitioner in relation to the relief sought was always relevant and if a person comes with unclean hands he may be refused relief, yet if he was entitled to relief, he could not be denied the same, simply because he had produced a document or letter not addressed to him---Relief is to be granted on the merit of the petition-- Order of reinstatement was duly communicated to the relevant office with copies to concerned offices, petitioner employee was likely to come to know of it and secure a copy of the same for its compliance---Employee, thus, could not be deemed to have stolen the said letter nor could he be denied relief on that ground---Order of rescission of reinstatement was declared to be without lawful authority and of no legal effect---Earlier order of reinstatement of employee still held the field and was required to be implemented by the Authority.
Syed Manzoor Hussain Bokhari for Petitioner.
Naseem Ahmad Khan for Respondent.
ORDER
Muhammad Ashraf Grade-II, Officer of National Bank of Pakistan was dismissed from service on the charge of some irregularities on 6-12-1983. He preferred a departmental appeal to President, National Bank of Pakistan, Karachi. The appeal came up before the Executive Board of the Bank presided over by the then President of the Bank. After hearing the petitioner, the executive board, accepted his appeal and ordered his reinstatement in service. The decision of the Board was duly conveyed to the Regional Head, National Bank of Pakistan, Principal Office, Lahore, vide letter No. Admn. DC.A1: 369/3946, dated 18-11-1984. It was to the following effect:
"With reference to your letter No. Admn. Adv. 120, dated 22-5-1984 we have to advise that on re-examination of the case of the above-named ex -Officer the executive board has decided that the punishment of dismissal earlier awarded to Mr. Muhammad Ashraf, Ex-IG-TI be rescinded and he be reinstated in the Bank's service w.e.f. the date of his dismissal i.e. 6-12-1983 treating the intervening period from the date of his dismissal to the date of joining duty as extra-ordinary leave without pay counting towards service only."
According to the petitioner the respondent No. 2 on account of malice did not allow the petitioner to resume his duty in pursuance of the above order. till the issuance of a fresh communication from the Administrative Department of National Bank of Pakistan under reference No. Admn. Dcc.l/86, dated 26-6-1986 to the effect that the appeal of the petitioner stood dismissed. The petitioner made a, representation to the President, National Bank of Pakistan, but he was informed on 21-10-1987 that there was no new ground to merit reconsideration of his case.
2. The petitioner's contention is that after the acceptance of his appeal and due communication of the order of his reinstatement to the concerned authorities, respondent No. 1 was not competent to rescind the orders and reject his appeal. The respondents had no authority to pass a contrary order in supersession of the order passed earlier.
Hence this Constitutional petition.
3. The respondents' have contested the petition. According to them, the decision contained in Head Office letter dated 18-11-1984 about his re instatement was never conveyed to the petitioner and the petitioner had stolen its copy. The correspondence between the Head Office and the Principal Office is a matter within the Bank. The competent authority of the Bank had withdrawn the decision of reinstatement before the same was conveyed to the petitioner. There was no de novo proceedings and the petitioner had never been reinstated in service and as such his appeal had been rightly rejected by the competent authority. Lastly, that the petitioner was given personal hearing before the rejection of his second appeal.
4. It is an admitted position that the appeal preferred by the petitioner against his dismissal from service was accepted by the Executive Board and he was ordered to be reinstated in the Bank service with effect from the date of his dismissal i.e., 6-12-1983. The order passed in this behalf was conveyed to the Regional Head, Principal Office, Lahore for necessary action with copies to the other
concerned authorities.
5. The question as to the effect of such order was considered by the Supreme Court in two cases, namely, Pakistan v. Himayat Ullah Farooqi P L D 1909 S C 407; Lt.-Col. Butta Charia v. The State and 2 others P L D 1964 S C 503. In the latter case it was held that "the remission of sentence becomes effective when duly communicated to the Superintendent Jail, who is duty bound to give effect to it in accordance with the Prisons Act while in the former case it was held that the order of the President having been duly communicated to Ministry of Communication and the respondent and its implementation thus ensured became a part of terms and conditions of the service of the latter. This point was also subject matter of consideration in Sh. Muhammad Nawaz v. The Secretary, Irrigation and Power, Government of Baluchistan Quetta and another P L D 1973 Quetta 14. The Division Bench seized of the matter based their judgment on the aforementioned cases and held that "the dictum laid down by their Lordships of the Supreme Court appears to be that as soon as the order of the competent authority is communicated to an agency or officer who is required to carry it out, the order is deemed to have become effective."
5-A. There is no dispute with the rule that the power of receding till a decisive step is taken is available to the Government or the relevant authorities but this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any person, such an order cannot be withdrawn or rescinded to the detriment of his rights.
6. The petitioner was admittedly not served with any show-cause notice or heard before the withdrawal of the order of his reinstatement into service. This is violative of the principles of natural justice because it is a settled proposition of law that in all proceedings by whomsoever held whether judicial or H administrative, the principles of natural justice have to be observed if the proceedings might result in the consequences affecting "a person or property or other right of the person concerned". .
7. The arguments of the learned counsel for the respondents that since the order of reinstatement had not been acted upon, the competent authority could recall the same seems to be devoid of force because a right had already accrued to the petitioner to claim the advantage given to him under the said order particularly when it was communicated to the relevant authorities. The question as to whether the said order had been acted upon is to be determined by the fact that the authority exercising such power had done that which was necessary for it to make the order effective and when such a step had been taken the order shall be deemed to have been acted upon conferring a right upon the person concerned. The order of reinstatement was duly communicated to the Regional Head NBP, Principal Office, Lahore for necessary action.
8. No substance appears in the contention of the learned counsel for the respondent that the petitioner cannot derive any benefit on the basis of stolen document containing order of reinstatement because it was never conveyed to him. Of course, conduct of the writ petitioner in relation to the relief sought is always relevant and if a person comes with unclean hands he may be refused relief but if he is entitled to the relief, he cannot be declined the same simply because he had produced a document or letter not addressed to him. The basic principle is that relief is to be granted on the merit of the petition. The order of reinstatement was duly communicated to the Principal Office, Lahore with copies to the Senior Vice-President, Personnel Wing, Head Office, Karachi and the Executive Vice-President, Finance Division, N.B.P., Head Office, Karachi by the Administrative Division (disciplinary cases section). As it concerned the petitioner, he was likely to come to know of it and secure a copy of the same for its compliance. In this view of the matter, he cannot be said to have stolen the said letter nor can he be denied relief on the said ground.
9. For the reasons stated above, the order dated 26-6-1986 passed by the Head Office National Bank of Pakistan is declared to be without lawful authority and of no legal effect and that the order dated 18-11-1984 still holds the field and is required to be implemented by the respondents.
The petition is accepted with costs.
A.A./M-1946/L
Petition accepted.