2016 P L C 237
[Balochistan High Court]
Before Mrs. Syeda Tahira Safdar and Muhammad Ejaz Swati, JJ
HABIB BANK LIMITED through President and 2 others
Versus
AZIZ ULLAH LAGHARI and 2 others
C.P.No.493 of 2012, decided on 19th January, 2016.
(a) Employer and employee ---
----Bank employee ---Reinstatement after acquittal from criminal charge ---Employee was
reinstated in service on acquittal from criminal charge ---Validity ---Punishment awarded to the
employee was in consequence of the inquiries conducted by the departmental authorities
independent of criminal case ---Acquittal in a criminal case would not give certificate to the
employee to absolve him from the departmental proceedings ---Both criminal and departmental
proceedings could go side by side being different in nature ---Courts below had erred to absolve
the employee of the charge and proceedings held departmentally on the basis of a decision given
in a criminal case ---Impugned orders passed by the courts below were set aside and case was
remanded to the Labour Court to decide the validity of inquiry and record findings with regard to
punishment awarded to the employee ---Labour Court was directed to complete proceedings with
a decision on merit within a period of two months ---Constitutional petition was disposed of in
circumstances.
2008 SCMR 857; Habib Bank Ltd. v. The State 2013 SCMR 840; National Bank of
Pakistan v. Anwar Shah 2015 SCMR 434; Aziz Ahmed Shah v. UBL 2011 PLC 136;
Muhammad Musadaq Khan v. Muhammad Akram Khan 2003 SCMR 1; Yousaf Ali Shah v.
Quetta Serena Hotel 1997 SCMR 1630; PLD 1997 SC 53; Mahmood Hussain Larik v. Muslim
Commercial Bank, Ltd. 2009 SCMR 857; PLD 2011 SC 1462; PLD 2011 SC 1387; Tariq Aziz -
ud-Din and others's case 2011 PLC (CS) 1130; PLD 2011 Kar. 848; Muha mmad Islam v.
Government of NWFP PLD 1998 SC 1993; Attaullah Sheikh v. WAPDA 2001 SCMR 269 and
2011 CLC 1340 ref.
Iqbal Ahmed v. Muslim Commercial Bank, Ltd. 2009 SCMR 903 and Government of
Pakistan v. Asif Ali 2007 PLC (C.S.) 271 rel.
(b) Employer an d employee ---
----Acquittal in a criminal case had no bar on departmental authorities to take action against the
employee in accordance with law applicable to his service.
Muhammad Riaz Ahmed for Petitioners.
W.N. Kohli for Respondent No.1.
Date of hearing: 27th October, 2015.
JUDGMENT
MRS. SYEDA TAHIRA SAFDAR, J. --- This petition was filed with the facts that
respondent No.1 Azizullah Laghari, an employ of Habib Bank Limited since 1990, while he was
working as Assistant Manager in 2005, was suspended through an order of suspension dated 30th
May 2007. A show cause notice was served on him on 15th August 2007 for initiating of
departmental action on charges of fraud, misappropriation, embezzlement, causing financial loss
to the Bank, and also loss to the reputation of the institution. The inquiry notice dated 1st
December 2007 was issued and served. The inquiry report dated 18th September 2007 was
submitted on completion of the inquiry, whereby respondent No.1 was held to be guilty of
allegations leveled against him. Second show cause notice dated 30th October, 2007 was issued,
and served on respondent No.1, who submitted his reply with denial of the allegations on 17th
October, 2007. Meanwhile, a suit for declaration and permanent injuncti on against the inquiry
proceedings was filed by respondent No.1, and vide order dated 08th May, 2008 the Senior Civil
Judge -I, Quetta rejected it in exercise of powers under Order VII, Rule 11, Civil Procedure Code
(C.P.C.). Subsequent to the rejection of the suit, a grievance notice was issued in the name of the
Bank on 2nd August, 2008. The grievance application filed before the Labour Court was allowed
to be withdrawn vide order dated 10th May, 2011.
2. The petition further contained the facts that for the act of alleged misappropriation and
embezzlement a Reference was filed before the Accountability Court by the National
Accountability Bureau against four persons, respondent No.1 was one of them. During course
one of the accused namely Saeed -ur-Rehman entered into plea bargain, which was accepted on
02nd March, 2011. While an order was passed on 13th December, 2010 in same Reference in
respect of respondent No.1 Azizullah Laghari and co -accused Khalid Aman Kasi, though they
were acquitted, but declared as approver. Apart from the proceedings before the Accountability
Court, two departmental inquiries were held by the Bank, consequent thereto respondent No. 1
was found guilty for the alleged acts, thus compulsory retired from the service of the Bank as
punishment. The punishment letter was issued on 14th May, 2011. In response a Grievance
Notice dated 14th June, 2011 was sent to the Bank, while the grievance petition was filed before
the Labour Court on 04th July, 2011. This petition was contested by the Bank. Issues were
framed, and on the conclusion, the Presiding Officer, Labour Court -I, Balochistan, Quetta vide
order dated 19th March, 2012 allowed the petition, and reinstated the respondent No.1 in the
service from 14th May, 2011 without any back benef its. This order was assailed before the
Labour Appellate Tribunal Balochistan, Quetta. The findings of the Labour Court were
concurred vide judgment dated 2nd June, 2012.
3. The petitioner Bank still aggrieved thus before this court to question the legal ity of the
orders of the lower forums. It was contended that two cases decided with the same facts,
pertained to the co -accused Khalid Aman Kasi and Saeed -ur-Rehman, but a contrary decision
was taken in case of respondent No.1 by the courts, trial and appe llate, in complete negation of
the rule of consistency. Further, the respondent No.1 was declared as approver by the
Accountability Court -I, Quetta, and the concession allowed by the law was extended in his
favour. As he (respondent No.1) accepted his guil t, thus required to be dealt with for his liability
on civil side too. This admission further disentitled him (respondent No.1) for his reinstatement
in service. In addition the evidence on the record was either misread or not read by the courts,
trial and appellate, thus the findings were contrary to the material on the record. It was prayed
that the impugned orders be set aside and respondent No.1 be restrained to join his duty.
4. Learned counsel for the parties were heard at length. Learned counsel fo r the petitioner
was of the view that the Labour Court lack jurisdiction in the matter, as status of the respondent
No.1 was not of workman, rather he was an officer, thus to be governed by the Rules applicable
to his services. Further, the Rules determine d the status of the parties as of master and servant,
thus no remedy lies before a Labour Court. He referred to:
No judgment found on the referred page 2008 SCMR 857
Habib Bank Ltd. v. The State 2013 SCMR 840
National Bank of Pakistan v. Anwar Sha h 2015 SCMR 434
It was further contended that the respondent No.1 was with an admission of guilt before
the Accountability Court, and declared to be an approver along with co -accused Khalid Aman
Kasi, while treating them as such the Accountability Court recorded acquittal in their favour.
This would have bearing on the case at civil side also. Further, there could be no order for his re -
instatement in service, as an approver is always an unreliable person, an established principle. It
was further stated that the acquittal in criminal cases shall have no effect on the proceedings held
departmentally, but the courts, trial and appellate, failed to consider this aspect of the case. An
undue benefit extended to the petitioner on basis of his acquittal. The re liance was placed on:
Aziz Ahmed Shah v. UBL 2011 PLC Page 136
Muhammad Musadaq Khan v Muhammad Akram Khan 2003 SCMR 1
Yousaf Ali Shah v. Quetta Serena Hotel 1997 SCMR 1630
Consequences of declaring as an approver were pressed on placing reliance on:
No judgment found on the referred page PLD 1997 SC 53
Mahmood Hussain Larik v. Muslim Commercial Bank, Ltd. 2009 SCMR 857
No judgment found on the referred page PLD 2011 SC 1462
No judgment found on the referred page PLD 2011 Supre me Court 1387
Tariq Aziz -ud-Din and others 2011 PLC (CS) 1130
No judgment found on the referred page PLD 2011 Karachi 848
5. In reply the learned counsel for the respondent No.1 only stated that the case of
respondent No.1 was distinguished to that of co -accused Saeed -ur-Rehman and Khalid Aman
Kasi. In addition the Accountability Court acquitted the respondent No.1 from the charge, and it
was held by the Hon'ble Supreme Court that all acquittals are honorable, thus there was no bar
on his re -instate ment in service. He referred to the Judgments reported in:
Muhammad Islam v. Government of NWFP PLD 1998 SC 1993
Attaullah Sheikh v. WAPDA 2001 SCMR 269
It was further stated that as respondent No.1 was acquitted by the Accountability Court
for th e same charges, therefore, he could not be penalized by the Bank for the same act.
6. In reply the learned counsel for the petitioner only stated that the inquiry report, though
exhibited without any objection, but placed out of consideration by the Labour Court and the
Labour Appellate Tribunal, thus erred. He referred to the judgment reported in 2011 CLC 1340
7. As far the jurisdiction of the Labour Court is concerned, the trial court framed issue No.1
to the effect, and determined the status of r espondent No.1 as workman, and thereby assumed the
jurisdiction. This decision was upheld by the Labour Appellate Tribunal. Though learned counsel
for the petitioners during course of arguments objected maintainability of the main grievance
petition while stating that respondent No.1 was working as an officer in the Bank, thus not
covered by the term workman, thus the Labour Court lacks jurisdiction in the matter. The
petition filed before this court though questioned the orders of the courts, trial and app ellate, for
a number of reasons, but the jurisdiction of the Labour Court was not questioned, nor status of
respondent No.1 as an officer of Bank was asserted. From absence of a specific plea to the effect,
it could easily be assessed that the findings to the effect were not questioned, thus need not to be
disturbed.
8. While going through the impugned judgments it was observed that both the courts arrived
to the conclusion that the respondent No.1 was with the status of an approver, and have already
been acquitted by the Accountability Court, Balochistan, Quetta from the case pertaining to the
act, subject matter of the departmental proceedings, thus could not be punished by the Bank after
acquittal from the criminal charge. It was for the reasons that al l acquittal have already been
declared as honourable by the Honourable Supreme Court. As a result thereof respondent No.1
was ordered to be reinstated in service from the date of compulsory retirement. The courts
below, trial and appellate, not only misapp reciated the law, but also the proposition that all
acquittal are honorable. The courts, trial and appellate, lost sight of the fact that the punishment
awarded to respondent No.1 of compulsory retirement vide order dated 14th May, 2011 was in
consequence of the inquiries conducted by the Departmental Authorities independent of the
criminal case before the court. Respondent No.1 was not penalized for the act by the Bank on
basis of the decision in the criminal case, while dealing him as an approver.
9. It is a settled principle that acquittal in a criminal case, though pertain to the same act,
placed no bar on departmental authorities to take action against an employee in accordance with
the law applicable to his service. Such acquittal in a criminal case in no way give clean
certificate to the employee to absolve him from the departmental proceedings. Both the
proceedings, criminal and departmental, could go side by side, as different in nature. The
Hon'ble Supreme Court in case of Iqbal Ahmed v. Muslim Co mmercial Bank Ltd. (2009 SCMR
903), while dealing with the like situation held:
"... As observed above the charges against the appellant in the departmental case are of
gross negligence amounting to misconduct as result of which the respondent suffered a
loss to the tune of Rs.2 million. Suffice to say that each case is to be decided on its own
facts and in the present matter although the appellant may have been acquitted on the
criminal charges filed against him vis -a-vis the defalcation of the amount in question,
however, in our opinion he could still be proceeded in departmental proceedings on
account of misconduct/ negligence on his part which resulted in said defalcation and
which precisely are the charges against him."
It was further held by the Ho n'ble Supreme Court while dealing with the departmental
and criminal proceedings held side by side, and distinguished the two in case the
Government of Pakistan v. Asif Ali (2007 PLC (C.S.) 271):
"6. The prosecution before a regular Court for the charge of criminal misconduct, and
the departmental proceedings for the charge of misconduct being governed by different
laws and the rules of procedure, are entirely different. In the present case, in addition to
the departmental proceedings under Government Ser vants (E&D) Rules, 1973, the
criminal law was also set at motion against the respondent for the charge of criminal
misconduct and in view of the settled law that acquittal from criminal charge may not
defeat the departmental punishment, the acquittal of re spondent by the criminal Court
either on technical ground or on merits would not ipso facto extinguish the charge of
misconduct against him in the departmental proceedings. The standard of evidence and
the method of proving the charge of misconduct and a c riminal charge for a regular Court
is not the same therefore, the acquittal of a person from the charge of criminal
misconduct by a criminal Court may be relevant factor to ascertain the nature of
misconduct in the departmental proceedings but may not be a s such a reason to exonerate
him from the charge of misconduct under Government Servants (E&D) Rules, 1973.
7. The misconduct under Government Servants (E&D) Rules, 1973, means conduct
prejudicial to the good order of service discipline or of unbecoming of an officer and a
gentlemen and contrary to the Government Servants (Conduct) Rules, 1964 whereas the
charge of criminal misconduct is based on the element of mens rea and criminal intent.
The criminal Courts in the light of strict observance of law of e vidence, have to judge the
admissibility of the evidence to hold a person guilt of the criminal charge, but in case of
the charge of misconduct, the departmental authorities are not required to follow the
technicalities of law. In the present case, the Inq uiry Officer as well as authorized officer
having considered the evidence brought on record, have held the respondent guilty of
charge and consequently, his acquittal from the criminal charge for want of insufficient
evidence would not be a valid ground to hold that he was also not guilty of the charge of
misconduct under Government Servants (Efficiency and Discipline) Rules, 1973. This is
settled proposition of law that departmental proceedings for the misconduct and criminal
prosecution in the same transa ction can proceed simultaneously but the acquittal in the
criminal case may not necessarily effect the result in the departmental proceedings and
perusal of the record would show that the Tribunal without creating distinction between
the criminal misconduc t and misconduct and the nature of proceedings before the
different forums, decided the appeal before it merely on the basis of judgment of the
criminal Court. It may be pointed out that unless the essential elements and component of
a criminal offence are proved through the evidence, direct or circumstantial, the
conviction is not possible whereas, in case of misconduct, the departmental authorities
may not follow the complicated procedure of criminal Courts and the rule of appraisal of
evidence rather suc h authorities in the light of general principle of law may determine the
question of guilt or innocence of a person by giving him a fair and adequate opportunity
of hearing in accordance with law."
10. In view thereof, it is an established principle of l aw that prosecution of a criminal charge,
and a departmental proceedings are entirely independent from each other, thus acquittal from
criminal charge might have no bearing on validity of the disciplinary proceedings.
11. In view of the settled principle the courts, trial and appellate, were on error to absolve the
respondent No.1 of the charge, and the proceedings held departmentally on basis of a decision
given in a criminal case. Rather the courts, trial and appellate, were bound not only to consider
the validity of the punishment awarded to the respondent No.1 by the departmental authority, but
also the validity of the proceedings held on basis whereof the punishment was awarded. It was
not done in the case in hand. The inquiry reports were placed befo re the trial court, and marked
as exhibits, therefore required to be considered along with the result drawn thereby, but ignored.
12. Thus without going into merit of the case the impugned orders dated 19th March, 2012 of
the Presiding Officer, 1st Labou r Court, Balochistan and Judgment dated 22nd June, 2012 of the
Labour Appellate Tribunal Balochistan, Quetta are set aside, and the case is remanded to the trial
court i.e. Presiding Officer 1st Labour Court, Quetta with the direction to address issue No.3
pertaining to validity of the inquiry held, and further record findings about validity of the
punishment awarded to respondent No.1. As the matter pertains to year 2006, thus needs a
decision without any loss of time. The Labour Court is directed to compl ete the proceedings with
a decision on merit, preferably within a period of two months from the date of this order.
The petition stands disposed of in the above terms.
ZC/17/Bal. Petition disposed of.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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