2023 P L C (C.S.) Note 47
[Balochistan High Court]
Before Muhammad Kamran Khan Mulakhail and Nazeer Ahmed Langove, JJ
ZAHOOR AHMED MENGAL
Versus
NATIONAL BANK OF PAKISTAN through President and another
C.P. No.869 of 2016, decided on 30th December, 2019,
Constitution of Pakistan ---
----Arts. 4, 10- A & 199 ---Constitutional petition ---Termination from service ---Right of
individuals to be dealt in accordance with law ---Right to fair trial--- Reinstatement with back
benefits ---Non -issuance of show cause notice--- Failure to provide opportunity of hearing---
Scope ---Petitioner being an employee of respondent/Bank was performing his duties when he
was transferred to another branch ---Petitioner showed his inability to attend the office due to
tribal enmity and eminent threat to his life, as such, filed several applications for grant of
leave---Manager of the transferee branch through an 'Absence Notice' informed the petitioner that the competent authority had disregarded his leave applications and directed him to attend the office within three days ---Petitioner belatedly joined his duty, filed an application for
grant of leave, joining report was accepted, his application for grant of leave was forwarded to the head office with the recommendation that the leave period be treated as leave without pay, however, vide impugned memorandum, the services of the petitioner were terminated on account of unauthorized absence and the period of his absence was treated as leave without pay---Held; period of absence was already condoned and his joining report was accepted by
issuing a stern warning to the petitioner, therefore, no ground was available with the Bank to terminate the petitioner ---Neither any show -cause notice was issued to the petitioner nor any
opportunity of hearing was afforded to him before passing the impugned office memorandum ---Entire record was silent in respect of any inquiry conducted against the
petitioner ---Termination order and the order whereby departmental appeal was dismissed
were set aside, in circumstances ---Bank was directed to reinstate the petitioner into his
service with all back benefits from the date of his dismissal---Constitutional petition was disposed of accordingly.
Director -General, Intelligence Bureau, Islamabad v. Muhammad Naveed 2012 SCMR
165; Pakistan Defence Officers Housing Authority v. Mrs. Itrat Sajjad Khan and others 2017 SCMR 2010 and Chairman State Life Insurance Corporation of Pakistan, Karachi and others v. Siddiq Akbar 2013 SCMR 752 rel.
Mazhar Ilyas Nagi for Petitioner.
Talal Rind for Respondents.
Date of hearing: 20th November, 2019.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J. ----Through this constitutional
petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the
petitioner Zahoor Ahmed Mengal has sought the following relief':
"In view of the submissions made here -in-before, it is humbly prayed that this
honourable Court may be pleased: -
(1) declare that he impugned original Order dated 07.04.2016 whereby Petitioner's services hove been terminated and appellate Order doted 11.08 2016 whereby Ns statutory departmental appeal was rejected, are illegal, without lawful authority, mala fide, non -speaking, void, capricious. arbitrary, in excess of jurisdiction or colourable
exercise of jurisdiction.
(2) set aside the aforesaid both impugned Order i.e. Original Order dated 07.04.2016 and appellate Order dated 11.08.2016;
(3) reinstate the Petitioner in service with all back and consequential benefits;
(4) grant any other relief to which the Petitioner is found entitled or this Horrible Court may deem just and proper in the facts and circumstances of the case;
(5) award the costs under section 35- A, CP.C., 1908, as amended by the Civil Law
Reforms Act, 1994 (PLD 1995 Central Statutes 1) in view of respondents' mala fide
acts of entangling the Petitioner unnecessary litigation, subjecting him to harassment and causing material loss in terms of money, time and energy..'
2. Facts relevant for the disposal of instant petition are that the petitioner was appointed
as Assistant in the respondent Bank vide order No.OD&TIDW -TOS/APPTI/Q2050 dated
21.10.2003 and was confirmed vide Order No.OTTARRivINV/PF:2115 dated 13.04.2004, while he was promoted as 'Cash Officer (00 -III) vide Order FIRM&AG/PROM/
C012005/2630 dated 08.03.2005. In recognition of his hard work, appreciation letter was granted by the VP/Regional Compliance Chief lie was further promoted to the rank of 00- 11
vide Or der No.RO/QTA/HRNI&AW/PROMOTION/2009/981 dated 03.03.2081(sic). There
was nothing adverse against him during his 15 years unblemished service career except the instant "disciplinary action" with regard to the allegation of his absence from duty caused for the reasons beyond human control. i.e. serious security threats due to tribal conflict exposing his life to danger and compelling him to remain immobilized; that the petitioner was posted as 0G -11 in Shahra -e-lqbal Branch of the respondent when he was tran sferred and posted in
Satellite Town Branch vide Order No.RO/QTA/HRM&AW/0093/2014 dated 20,01.2014; that statedly due to serious animosity between the petitioner's tribe with another tribe, there was eminent threat to his life, he could not continue performance of his duties. He thither added that he had never been indolent about his official duties anti had been vigilantly informing the Bank authorities about his inability to attend his office under the peculiar
compelling circumstances beyond human control. In this regard, several applications were
sent by post on 06.11.2014, 01.12,2014, 10.01.2015, 10.02.2015, 01.03.2015, 30.03.2015, 20.04.2015 and 11.05.2015 with request to grant leave, but none of the applications was responded either by grant of leave or otherwise. On 02.07.2015 the Manager Satellite Town, Branch served an "absence notice" upon the petitioner, whereby afore referred applications
were said to have "disregarded" by the Head Office and the petitioner was advised to report
duty within three (03) days, failing which disciplinary action would be taken as per
Rules/EDP, while said notice was followed by another notice dated 27.07.2015; petitioner responded to the above notices by submission of an application dated 05.08.2015 again on strength of stated compelling circumstances, he therefore, was constrained to take risk and submitted his duty -joining report on 01.02.2016 followed by another application dated
02.02.2016. The duty- joining report dated 01.02.2016 and application dated 02.02.2016 were
forwarded by the Manager to the Regional Manager EIR NBP Regional Office vide letter No.N13P/ STQ/JOINING/2016/133 and STQ/NBP/STAFF/2016 /134 dated 04.022016.
Vide letter No.RQ/QTA/HRMJAW/PF/ZA/OG- 11 dated 10.02.2016, SVP/Regional
Head I -1164 and AW, NBP, Quetta forwarded the aforesaid duty- joining report dated
01.02.2016 and application dated 02.02.2016 to the Vice President, Wing Head Personal
Administration Wing, IRE and HR Manager Group, NBP Head Office, Karachi. It is evident
on the face of aforesaid letter dated 10.02.2016 that SVP/Regional Head, with reference to his previous letter dated 07,12.2015 observed as under: -
"We have to advise that we have already recommended his leave, treating the leave period as without pay vide our letter No.RO/QTA/HRWAW/PF/ZA/OG -11/10933
dated 07.12.2015, in the light of circumstances stated by Mr. Zahoor Ahmed in his applications submitted to you"
That neither the petitioner was heard by the Bank authorities Ator was any
disciplinary proceeding initiated against the petitioner in accordance With the Rules, but surprisingly a Memorandum No.RO/QRA/HRM/AW/Z1o/0GI1/3332/termination letter dated 7.4.2016 was communicated to him, which reads as under:
"The competent authority at Head Office vide letter No.PAW/I -
MISC/RO/(QTA)/UA/75/2015/4288 dated 29.03.2016 has advised that the services of Mr. Zahoor Ahmed DG -II hove been terminated from the Bank on account of un-
authorized absence with effect from the date of absence i.e. 31.10.2014, the intervening period from the date of absence from duty till the date of termination will be treated as Extra Ordinal)? Leave without pay not counting towards Service. Promotion. Increase/increment and Pensioner Benefits etc.
Therefore he is advised accordingly with the instruction to adjust all direct/indirect loans/liability outstanding against him immediately otherwise legal proceedings will be initiated for recovery against him and his Guarantor".
3. Feeling aggrieved of his termination from service by operation of aforesaid impugned
Order dated 07.04.2016, the petitioner preferred a departmental appeal dated 11.05.2016 before the President NBP, The petitioner submitted an application dated 17.05.2016 requested the Manager Satellite Town Branch to forward the said appeal to the authorities
concerned. The Manager forwarded the said appeal to the Regional Head NBP, Regional
Office, Quetta letter No.NBP/STQ/Zahoor -Ahmed/OG -11/Appeal dated 17- 5-2016 with
strong recommendations to consider on merit the strong grounds/pleas, taken in the memo of appeal; that the aforesaid departmental appeal was rejected as intimated through ac letter No.R0QTA/ FIRM/ AWP/ PP /ZA/EX -0G-11/2005 dated 1 I.08.2016 without affording the
petitioner an opportunity of personal hearing. Hence, the instant petition.
4. Mr. Mazhar Ilyas Nagi, Advocate learned counsel for the petitioner at the very outset
pointed out that the petitioner was serving in the respondent bank as officer Grade -II, when
due to tribal enmity he was not in position to attend his duties, therefore, remained absented w.e.f 06.11.2014 till 11.05.2015, for which applications were also submitted, though none of the said application was responded, however, absence notice dated 02.07.2015 was issued by the Manager Satellite Town, Branch Quetta, when he was informed that his request for leave has been declined and he therefore, was advised to report for the duty within three days. The notice was accordingly replied, but again another notice dated 27.05.2015 was issued and the petitioner in compelling circumstances joined the duty on 01.02.2016, along with another application for grant of leave and after various correspondence, his jointing report was accepted, while the leave was recommended to be treated as leave without pay. The said
memorandum was duly signed by the Senior Vice Manager, Regional Head and Regional
Manager (HR); that the petitioner was on his duty and waiting for order on his leave application filed along with joining report dated 02.02.2016, when he was served with the impugned memorandum dated 07.04.2016, which was also signed by the same officers, through which the petitioner was informed, that the head office vide letter dated 09.03.2016 has advised that the service of the petitioner have been terminated from the bank on account of unauthorized absence. In support of his contention the learned counsel for the petitioner at
the very outset assailed the impugned order of termination and stated that the impugned order was passed under the National Bank of Pakistan (Staff) Service Rules 1980, which was without jurisdiction, as the referred Rules have been declared by the Hon'ble Supreme Court only instructive in nature, rather the National Bank of Pakistan Staff Service Rules 1973 were declared as statutory Rules, under which the order of termination or removal from service of an officer of Grade- II could have been passed. The learned counsel placed reliance
on: 2013 SCMR 1314.
He further contended that it is evident from the record that once the petitioner's
joining report was accepted, and his absence from the duty was recommended to be treated as extra ordinary leave without pay, thereafter, no occasion was available to the respondent Bank for terminating the service of the petitioner on similar ground, which was already condoned.
It was further vehemently urged that fundamental rights of the petitioner were
violated, when he was ousted from service on basis of impugned memorandum, without any explanation, show cause notice, notice of inquiry or at least the notice of inquiry proceedings and for that purpose an opportunity of personal hearing. In support of his contention he placed reliance on PLD 1980 SC 22, 2005 SCMR 678, PLD 1987 SC 304 and PLD 1989 FSC 35.
5. Conversely, Mr. Talal Rind, Advocate, appearing for the respondent bank,
vehemently opposed the contention and at the very outset raised the objection on
maintainability of the petition. He further stated that the petitioner has concealed material facts from the court when it was evident from its reply, that despite receiving absence notice, he instead of joining the duty was persistently sending applications for leave, It was also
admitted by the petitioner that his no such application for leave was ever accepted, but still
the notice of absence was given to him to fulfill the requirement of law and due to his willful
absence the inquiry was also required. Therefore, the respondent's human resource department instead of terminating him without inquiry, allowed him to join the duty and this mechanism was adopted only as requirement of rules. He also stated that at present the Rules 1980 are in practice, which empowers the Regional Head to pass any order in respect of conduct/terms and condition of service of the bank employee. He finally urged for dismissal of the petition.
5. The respondents have raised objection with regard to maintainability of the petition
on the point of jurisdiction. We have taken into consideration the arguments advanced by the learned counsel for the respondent. Admittedly the National Bank of Pakistan is a government controlled corporation and its rules viz National Bank of Pakistan (Staff) Service
Rules 1973, having been framed with the previous approval of the Federal Government. The
status of employees of National Bank of Pakistan have already been decided by the Hon'ble Supreme Court in its judgment 'Muhammad Mubeen- ud-Salam and others v. Federal of
Pakistan through Secretary, Ministry of Defence and others "PLD 2006 Supreme Court 602". The relevant passage is reproduced hereunder:
80. Now turning towards the second limb of the argument i.e. as to whether the persons working in the Government controlled Corporations, etc. in terms of section
2-4 of the 57,4, 1973 are performing their functions in connection with the affairs of
the Federation, being one of the most important condition for attaining the status of being in the service of Pakistan. In this behalf a criteria has been laid down in the case of Saeed Rabbani (ibid). Similarly, in the case of Salahuddin (ihid), 0 was held as under: --
"Now what is meant by the phrase "performing functions in connection with the affairs of the Federation or a Province." It is clear that the reference is to governmental or State filmdom. involving in one form or another, an element of exercise- of public power. The functions may be the traditional police functions of the
State, involving the maintenance o of law and order and other regulatory activities or they may comprise functions pertaining to economic development, social welfare, education, public utility services and other State enterprises of an industrial or commercial nature. Ordinarily, these frictions would be performed by persons or the Federal Government or it Provincial Government. However, in recent years, there has been manifest a growing tendency on the part of Governments to create statutory Corporations for undertaking many such functions, particularly in the industrial and commercial spheres. in belief that free from the inhibiting effect of red -tapism, these
semi -autonomous bodies may prove more effective, flexible and also profitable
Inevitably. Government retains effective
control over their functioning by appointing the heads and other senior officers of these
Corporations. by regulating their composition and procedures hr appropriate statutes, o and
by finding funds Jai: financing their activities.
Examples of such statutory Corporations are the National Bank of Pakistan, the West
Pakistan Healer and Power Development Authority. the National Shipping Corporation, the Agricultural Development Bank of Pakistan and the large number of Universities functioning under their respective statutes. On account of their common attributes. as mentioned in the preceding paragraph, they have all been regarded as persons per /arming functions in connection with the affairs of the Federation or a Province.
In view of afore -referred judgment of Hon'ble Supreme Court of Pakistan, the respondent
bank is a statutory corporation and having statutory rules; thus, the petitioner has rightly invoked the Constitutional jurisdiction of this court and the objection raised by the learned counsel for the respondent is overruled.
6. The petitioner being employee of the respondent bank and office Grade -II, was
performing his ditties in Shahra -e-lqbal Branch, but was transferred and posted to Satellite
Town Branch, Quetta vide order dated 20th January 2014. He showed his inability to attend
the office due to his tribal enmity with another tribe and eminent threat to his life, as such,
filed several applications for grant of leave. On 08th June 2015, the Manager Satellite Town Branch, Quetta issued 'Absence Notice' to the petitioner, informing him that the competent authority has disregarded his leave applications and directed him to attend the office within three days. Consequently, a second 'Absence Notice' dated 27th July 2015, was issued, which
was replied by the petitioner. On 014 February 2016, he joined his duty and filed an application for grant of leave. His joining report was accepted, while his leave application was forwarded to the head office, with the recommendation that the leave period be treated as leave without pay, however, vide memorandum dated 07th April 2016, the services of the petitioner were terminated on account of unauthorized absence w.e.1 31" October 2014, and the period of his absence was treated as leave without pay. The period of absence was already condoned and his joining report was accepted, issuing a stern warning to the petitioner, therefore, no ground was available to the respondent bank for termination of the petitioner. Reliance is placed on 'Director -General, Intelligence Bureau, Islamabad v.
Muhammad Naveed' (2012 SCMR 165), wherein it was observed that:
"We have carefully considered the submissions made before us by the parties' counsel and also perused the material placed on record, which reveals that the period of absence of the respondent was treated by the competent authority as extraordinary leave, therefore, the ground of his illegal absence was no more available for awarding any punishment to him. Moreover. admittedly the offence arising out of No. 74 of 2006. Police Station Gharibabad, Carus. Hyderabad was lawfully compromised and disposed of whereby the respondent was acquitted. This being the position a rightly urged by Mr. Abdul Ltif Ansari, learned Advocate Supreme Court Jbr the respondent, such acquittal of respondent cannot be taken as his disqualification, coming in the way of his reinstatement in service."
7. The bare reading of the record appended with the petition and also the reply filed by
the respondent coupled with the termination order dated 7th April 2016 reveals that neither
any show -cause notice was issued to the petitioner nor any opportunity of personal hearing
was afforded to him before passing the impugned alike memorandum, rather it was observed therein that the 'competent authority at Head Office vide letter No. PAW/1-
MISC/RO(QTA)LIA/75/20154288 dated 29.03.2016, has advised that the services of Mr.
Zahoor Ahmed (petitioner) have been terminated from the bank on account of un- authorized
absence.' The impugned order was passed without hearing the petitioner and to allow him to
bring his stance on record or giving him a fair opportunity to defend himself. The entire record is silent in respect of any inquiry conducted against the petitioner. Consequently, the order dated 07th April, 2016 infringed the fundamental rights of the Respondents guaranteed under Article 4 or the Constitution as to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen.
8. From the above, it is very much dear that since there was serious allegation against
the petitioner of his unauthorized absence from the duty, which resulted in his termination from the service, therefore, he should have been afforded an opportunity of fair trial and personal hearing. But no personal hearing was given to the petitioner before passing the
impugned order dated 07th April 2016. Therefore, the action of the respondent bank against
the petitioner itself was contradictory and against the principle of natural justice and the petitioner cannot be deprived of his fundamental right of fair trial and due process guaranteed under Article 10- A of the Constitution of the Islamic Republic of Pakistan, 1973
(the "Constitution"). The Hon'ble Supreme Court of Pakistan in case titled 'Pakistan Defence Officers Housing Authority v. Mrs. Itrat Sajjad Khan and others' (2017 SCMR 2010) has held as under:
"However, the question which escaped the attention of the High Court and needs our consideration is as to whether Rule 8(b)(1) of the Service Rules framed by the appellant in 2008 for their employees which authorizes the Administrator to dispense with the services of an employee by giving him one month's notice or a month's pay o in lieu thereof without assigning any reason or providing an opportunity of 'sing is violative of the principle of natural justice, which always has been treated as violation of law. The said rule further appears to be against the principles of public policy which requires the public functionaries to maintain transparency and to exercise their powers in good faith in the public interest and not on the basis of personal likes or dislikes or on the basis of whims and fancies and therefore, it needs to be examined as to whether such rule could he allowed to be retained in the service rules (though non-statutory) of the appellant a statutory body."
9. We have considered the contention of the learned counsel for the petitioner that the
impugned order was passed under the National Bank of Pakistan (Staff) Service Rules, 1980, which are not statuary, rather the statutory rules are 'National Bank of Pakistan (Staff) Service Rules, 1973'. Suffice to add here that the respondent -Bank was created under the
provisions of the National Bank of Pakistan Ordinance, 1949 and also that the National Bank of Pakistan Staff Rules were framed in 1953 with due approval of Government, which were then superseded by the Rules of 1973, also with approval of Government. Meanwhile the Banks (Nationalisation) Act, 1974 was promulgated, whereby the present I3ank was also
nationalised and the Board of Governors was appointed by the Government to manage the
Banks and the said Board in the year 1980 framed fresh Staff Rules, superseding the earlier Rules of 1973. It is an admitted position that the Rules of 1980 were not framed with the approval of the Government. Under the provisions of section 11 of the Banks (Nationalisation) Act, 1974, the Board of Directors was authorised to exercise the power as
exercised by the Board under the Ordinance of 1949, which means that their powers were
also subject to the same limitations and checks as provided in the said Ordinance. Therefore,
the Board could not have framed the Rules of 1980 without the approval of the Federal Government. The status of the Rules of 1980 is nothing but only, instructive in nature and that the Rules of 1973, being framed with the prior approval of the Government, hold the field. This issue was also dealt with by the Hon'ble Apex Court in case of 'Muhammad Tariq Badr and another v. National Bank of o Pakistan and others' (2013 SCMR 314).
10. The termination order dated 07'h April 2016, issued against the petitioner by the
respondent bank under the National Bank of Pakistan (Staff) Service Rules, 1980, was illegal, rather the proceedings were to be initiated, conducted and completed under the National Bank of Pakistan (Staff) Service Rules, 1973, therefore, we hold that the order being passed in exercise of powers under non- statutory rules, thus, being without jurisdiction
was not sustainable.
It is imperative to observe here that the petitioner is also entitled for the back benefits
from the date of termination order, keeping in view the dictum laid down by the Hon'ble Supreme Court Chairman, 'State Life Insurance Corporation of Pakistan, Karachi and others v. Siddiq Akbar' (2013 SCMR 752). The relevant passage is reproduced hereunder:
Once an employee is reinstated in service after his exoneration of the charges levelled against him, the period during which he remained either suspended or dismissed cannot be attributed as a fault on his part. His absence during this period was not voluntary on his part but it was due to order of the appellant that he was restrained not to attend his job/ duty because on the basis of charge sheets, he was suspended and later on dismissed. At the moment, his exoneration from the charges would mean that he shall stand restored in service as if he was never out of service of the appellant. If the absence of the respondent or non- attending the work was not volunteer act on the
part of the respondent and was due to steps taken by the appellant, in no manner the service record of the respondent can be adversely affected nor he can be denied any benefit to which he was entitled, if he had not been suspended nor dismissed.
11. Therefore, for the afore -discussed reason and dictum laid down by the Hon'ble Apex
court, this Court reached to the conclusion that the impugned orders dated 07th April 2016 of respondent bank is illegal, void ab initio; result of colorful exercise of authority and passed in blatant violation of the principle of natural justice, therefore, while allowing this writ petition the same is struck down, consequently the termination order dated 07th April 2016 and order dated 17th May 2016, whereby the department appeal of the petitioner was dismissed, are hereby set aside, and the respondents are directed to reinstate the petitioner into his service with all back benefits from the date of his dismissal i.e. 07th April 2016.
The petition stands accepted in above terms, with no order as to costs.
SA/121/Bal. Petition accepted.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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