' 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 Responent-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 A 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 simp.Liciter 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 years' 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 employer 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 of 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) Wajihnddin 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 the 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 inyestigated the circumstances which led to the arrest of the Appellant and this was all the more necessary as the learned counsel for the 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 his arrest. It is also difficult to comprehend how could the Respondent-Bank assume on the very next day of the Appellant's arrest that his post could not be -kept vacant for such a long time. The Bank should have waited for some reasonable time to know the outcome of the fake criminal charges against the Appellant before finally terminating his services. Appellant occupied a very senior post in the hierarchy of the Respondent-Bank and he should have been proved assistace particularly when the Respondent-Bank had not initiated the criminal proceedings against him. We feel that the. Bank has acted with unwarranted haste which, in all probability, was- because of the pressure from the ruling party.
17. It would now also be relevant to recall the letter of the Respondent-Bank dated 26-3-1995, reproduced earlier, whereby his services were terminated. Para-2 of the said letter indicates that it was on ."the grounds of lack of confidence" that the Appellant's services were terminated. The thrust of the said letter is on Bank's lack of confidence on the Appellant rather than on his arrest because of criminal allegations. Respondent's changed their position on the Appellant's termination and in their letter dated 23-8-1995 through their Industrial Relations Advisers M/s. Shahid Anwar Bajwa and Company intimated that the services of the Appellant were terminated on the basis of "Master and .Servant" relationship. The said letter-reads as under:-- "M/s. Badar Iqbal & Co.
' Attorneys at Law, Alnoor Building, 43, Bank Square, Lahore ' Dear Sir, ' Under instructions from our clients, Messrs Habib Bank Limited, Habib Bank Plaza, I.1. Chundrigar Road, Karachi, we address you asunder:
1. Our clients acknowled gereceipt of your letter No. SIC/143/95 dated July 4,1995.
2. Mr. G.M. Khairati's services were terminated not by way of punishment but by the exercise of common law right of master to terminate the contract of services at any time. Such a right is also available to the management of the Bank under the Habib Bank Limited (Staff) Service Rules, 1981.
There was no element of punishment involved in termination.
3. When the services of your client were terminated, he was informed that he is entitled to receive three months salary in lieu of notice period of three months as prescribed under the rules and in accordance with the terms of employinent.
4. Therefore your clients request for reinstatement cannot be accepted and the same is hereby rejected.
' Very true yours ' For: SHAHID ANWAR BAJWA & CO. Advocates."
' The perusal of the contents of the above letter clearly indicates that the Appellant's services were terminated on the basis of "Master and Servant" relationship and by way of punishment. There has been shift in the Respondent-Bank's position vis-a-vis Appellant's termination, such fluctuation in the Respondents' stance does not impart credibility to their action against the Appellant.
18. The learned counsel for the Respondents articulating his arguments raised the issues of limitation, the principle of "Master and Servant" and that the Appellant has filed appeal under section 6 of the. Service Tribunals Act of 1973.
19. We will first address the issue of limitation. The learned counsel for the Respondents contended that as soon as the Service Tribunals Act of 1973 was amended and section 2-A was inserted therein all the proceedings relating to service matters pending in any Court abated automatically and that the Appellant should have immediately approached the Federal Service Tribunal without waiting for any abatement order by the High Court where his Constitutional Petition was pending.
He further argued that the Hon'ble Supreme Court's order dismissing Appellant's C.P.L.A. No.152 of 1998 was released on 4-6-1998 and Appellant approached this Tribunal on 14-9-1998 i.e. After more than thirty days' limitation period. The rulings cited by the learned counsel for the Respondents on the issue of limitation have already been referred to in preceding paras. In rebuttal the learned counsel for the Appellant also cited rulings and stated that there was no limitation against a void order and also referred to the judgment of the Hon'ble Supreme Court in the case of Sui Gas Employees reported in 2003 PLC (C.S.) 796 and 2004 SCMR 146. The circumstances of the case very clearly indicate that an honest and upright banker who had impeccable record and was holding a very senior post in the hierarchy of the respondent-Bank was unethically and criminally victimized by Mr. Shahid Nazir, an MNA on the basis of false F.I.R. Which was subsequently quashed by the Hon'ble High Court. The trauma of arrest on such an officer must have, we are sure left very deep and indelible scars on the mental canvas of the Appellant. We are strprised that he has still not lost his balance of mind through he must have been emotionally shattered due to great injustice perpetuated on him. Furthermore, Appellant while pursuing his case was not indolent but was diligently trying at different levels to get relief. Had he slept over and not moved Hon'ble High Court and the apex Court one could presume that the Appellant had been lethargic in pursuing his case.
Under such circumstances and in exercise of vested discretion we condone the delay in filing this appeal and while doing so we are strengthened by the observations of their Lordships in the case of Sui Gas Employees reported in 2003 PLC (C.S.) 796 while upholding the discretionary powers of the Federal Service Tribunal' regarding condonation of delay have ruled as under:-- "Besides above references, decision of the cases on merits have always been encouraged instead of non-suiting the litigants for technical reasons including on limitation. In this behalf good number of precedents can be cited where question of limitation was considered sympathetically after taking into consideration the relevant facts. Reliance is placed on the cases of 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 v. Chairman, WAPDA (2002 SCMR 142). There are .Cases where even delay has been condoned by the Tribunal without receiving application from the appellant but no interference was made by this Court on the premises that Service Tribunal had passed order in exercise of its discretionary powers. In this behalf reference may be made to the case of WAPDA v.
Muhammad Khalid (1991 SCMR 1765). Relevant para. Therefore reads as under thus:-- ' 'As regards the question that no application for condonation of delay had been filed by the respondent, the matter being one of the discretion, the finding of the Tribunal cannot be set aside, on a technicality alone In the same ruling their Lordships 'while dealing with the issue of limitation have also observed that technicalities should not be used to non-suit the parties. In the latest ruling of the Hon'ble Supreme Court (2004 SCMR 146) cited by the learned counsel for the Appellant where the two years' delay condoned by the Federal Service Tribunal has been upheld by the Apex Court. Their' Lordships in this judgment ruled as under:-- ' It hardly needs any elucidation that sufficiency of cause for condonation of delay being question of fact is within the exclusive jurisdiction of learned Federal Service Tribunal and once the discretion concerning condonation of delay was exercised judiciously by the Service Tribunal it cannot be disturbed by this Court without any jurisdiction which is lacking in this case. In this regard we are fortified by the dictum laid down in 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) and Sher Bahadur v. Government N.- W.F.P. (1990 SCMR 1519).
' The conclusion arrived at by the learned Federal Service Tribunal being strictly in consonance of law and being well-based does not warrant any interference. The petition being meritless is dismissed and leave refused."
' We are also fortified by the ruling of the Hon'ble Supreme Court reported in 1991 SCMR 1765 wherein their Lordships ruled as under:- " As regards the question that no application for condonation of delay had been filed by the respondent, the matter being of one of discretion, the finding of the Tribunal cannot be set aside on a technicality alone We also rely on Hon'ble Supreme Court's ruling reported in 2003 PLC (C.S.) 488 on this point. As such the respondent's objection on the ground of limitation is overruled.
20. The issue of "Master and Servant" was eloquently argued by the learned counsel for the Respondents but we do not subscribe to this stance. The Apex Court in its various rulings have ruled against the efficacy of this principle of "Master and Servant". The Hon'ble Supreme Court in the case of Muhammad Ashraf v. D.G. Multan Development Authority reported in 2000 PLC (C.S) 796 ruled as under:- "We also find that concept of law of Master and 'Servant does not emanate from any Constitutional provision or statute or Holy Quran and Sunnah by the Holy Prophet (P.B.U.H.)."
' In the case of Muhammad Akram v. Mst. Farman Bi (PLD 1990 SC 28) their Lordships on the point of "Master and Servant" observed as under:-- "The resort to a rule of common law of English in preference to the one of Pakistan Law or a rule of Islamic law or . ' jurisprudence; or for that matter, the Islamic Common Law, is not now possible under the Pakistan Constitution and legal setup.
' Similar ruling was also given by the Apex Court in its decision reported in PLD 1994 SC 72 as under:- - "(b) Islamic Jurisprudence--- ----Master and servant---Contract following unilateral and arbitrary reduction of salary without any fault having been proved against the employee is itself repugnant to Injunctions of Islam--- Unbridled power in the hands of the employer to convert the salary into a 'subsistence grant' amounts to exploitation which is termed as Gharar'.
' In the latest ruling of the Hon'ble Supreme in the Sui Gas Employees' case reported in 2003 PLC (C.S.) 796, this principle of "Master and Servant" has also been repelled. After the observations by the Hon'ble Supreme Court in this ruling we do not consider the concept of "Master and Servant" relationship any more valid as there is no tenable ground on the basis of which it can be sustained in this Country. This practice originates from the English. Law and after very express Constitutional provisions, Civil Servants Act of 1973, principle of natural justice so emphatically enunciated by the Apex Court in numerous judgments and Injunctions of Islam we consider the principle of "Master and Servant" relationship absolutely below the human dignity and we, therefore, do not find it sustainable. It is high time that' the pleadings on the basis of "Master and Servant" relationship are discarded by the litigants as this principle insults .The decency of human being.
21. The other issue of the learned counsel for the Respondents very forcefully contended that the Appellant has filed this appeal under section 6 of the Service Tribunals Act of 1973 which stipulates that any party prefer appeal before the Tribunal in respect of any issue pending in the Court. To appreciate its true impart the said section of the Act is reproduced as under:-- "6. Abatement of suit and other proceedings,---All suits, appeals or applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the commencement of this Act shall abate forthwith: ' Provided that any party of such a suit, appeal or application may, within ninety days of the [establishment of the appropriate Tribunal, prefer an appeal to it]* in respect of any such matter which is in issue in such suit, appeal or application."
' He argued that in the Constitutional Petition before the Hon'ble High Court the pending issue was that of the limitation only and, therefore, the Tribunal was restricted to confine itself to the issue which was pending before the Hon'ble High Court, therefore the Tribunal should confine its order to limitation and not to the reinstatement of the Appellant. We are unable to agree with this line of arguments of the learned counsel for the Respondent which is absolutely untenable. The perusal of the Constitutional Petition No.1879 of 1997 filed by the Appellant before the Hon'ble High Court very clearly indicates that the issue pending before the Hon'ble High Court was that of his termination and not of limitation only. It would be relevant to reproduce the prayer of the Appellant made in the said Constitutional Petition which, interalia, reads as under:-- "PRAYER.
' In view of the facts and circumstances mentioned above, it is respectfully prayed that this Honourable Court may be pleased to.
(i) declare that the order of termination of the services of the Petitioner has been passed without lawful authority and is of no legal effect;
(ii) declare that the impugned order being violative of the principles of natural justice is nullity in the eye of law;
(iii) set aside the impugned order as being arbitrary, illegal and ultra vires and direct the Respondents to reinstate the Petitioner in service;
(iv) grant any other relief which this Honourable Court deems fit and proper under the facts and circumstances of the case."
' Furthermore, the judgment of the Hon'ble Supreme Court (reproduced earlier) while dismissing the C.P.L.A. No.152 of 1998 filed by the Appellant very clearly mentions about the issue of termination challenged by the Appellant through his Constitutional Petition. We reproduce the relevant portion of para-3 of the said judgment:-- "3. The petitioner challenged the order of his termination through a Constitution Petition in the High Court of Sindh at Karachi, inter alia, on the ground that although it was purported to have been passed in exercise of power derived from Master and Servant rule, would yet be deemed to be passed without lawful authority and of no legal effect, inasmuch as, it was passed without issuing show-cause notice to the petitioner and without giving him an opportunity of hearing.........................
' In view of the above facts, it is clearly evident that this line of arguments adopted by the learned counsel for the Respondents is misconceived and not sustainable. The basic issue pending before the Hon'ble High Court was the Appellant's termination when section 2-A was inserted in the Service Tribunals Act of 1973 when the proceedings in the Hon'ble High Court abated.
22. The learned counsel for the Respondents also vehemently contended that the Appellant cannot claim reinstatement but only damages. In support, he cited the ruling of the Apex Court in the case of Anisa Rehman (1994 SCMR 2232). In this case the issue was not of termination but of reversion and their Lordships, however, observed in their ruling that "remedy for wrongful dismissal is to claim damages." Appellant's termination cannot be equated with dismissal which has totally a different connotation and effect.
23. The main plank of the Appellant's unceremonious termination, as stated above, being the respondent's inability to keep the post of the Appellant vacant for indefinite time though the Appellant's termination letter mentions "lack of the Bank's confidence" as the basis of the impugned order. In this regard, the learned counsel for the Respondents relied on three judgments.
First one being that of the Hon'ble Supreme Court of India in Civil Appeal No.325 of 1994 and 174 of 1994 in the case of Burn and Company and their employees. The perusal of the said judgment indicates that a section of employees of the petitioner in Howra Iron Works were involved in litigation and the Government of West Bengal issued a notification dated 16-12-1952 referring it to the First Industrial Tribunal for adjudication which comprised thirteen (13) items in the reference.
The four of these were considered by the Hon'ble Supreme Court and one of the item being reinstatement of four employees namely S.N. Chatterjee, Ashimananda Banerjee, Ramchanan Rana and Joydeb Banerjee and/or payment of compensation to.Them. In this case one of the four employees i.e. Ashimananda Banerjee was arrested by the Police under West Bengal Act and detained in jail from 25-1-1949 to 5-4-1952. The company terminated his services on 22-4-1949 i.e. After a period of 2 months and 27 days whereas in the present case Appellant's was suspended on the next day of his arrest and, as such, the haste in which the Appellant' services were terminated is totally distinguishable from the judgment of the Hon'ble Supreme Court of India reported in AIR 1957 SC 38. With the Appellant's suspension his post became vacant and the Respondent's could appoint any replacement. The other judgment on this point which was very vehemently argued by the learned counsel for the Respondents was the ruling of the Sindh Labour Appellate Tribunal in the case of Muhammad Ramzan v. National Motors reported in 1980 PLC 780. This case is also distinguishable from the present case as in this particular case Appellant Muhammad Ramzan was convicted for one year by the Summary Military Court and was thereby imprisoned. In this case it was established fact that the Appellant being convicted and imprisoned could not resume duty for at least for a period of one year whereas in the case of Appellant in the appeal in hand, he had neither been convicted nor the trial had started and, as such, this case is also distinct from the Appellant's appeal. The third judgment cited by the learned counsel for the Respondents was that of N.I.R.C. In the case of Fazal Dad v. Attock Electric Company reported in 1997 PLC 364 where the Appellant was lodged in jail during investigation by the Police and he had applied from jail for six months' leave from duty. He was, however, directed by the Respondent namely, Attock Electric Company, to resume duties within ten (10) days failing which he was warned that his services would be terminated. The facts of this case are also distinguishable from the Appellant's case in hand where, to .Repeat once again, Appellant was suspended on the next day of his arrest and later terminated without giving him any opportunity to report for duty or issuance of Show-cause notice or even personal hearing.
24. It would be relevant to recall that the learned counsel for the Respondents had very categorically stated that the Appellant had received his three months' notice pay as visualized in the Banks Service Regulation. This is also distortion of facts, as the Appellant was not paid this amount and in fact his three months pay was adjusted against his wife's loan of a paltry sum of Rs.40,000 which was also recovered through the Bank decree. His wife had obtained this loan in her individual capacity as a separate entity and recovery of her loan could not be adjusted against the dues payable to the Appellant..
25. The upshot of the entire discussion clearly brings out that the Appellant was involved in false criminal charges and subjected to degradation of arrest. The. Criminal charges were quashed vide Hon'ble High Court's judgment referred to above. The circumstances which have been detailed in the preceding paras make it abundantly clear that the Appellant was made a victim of a conspiracy and vengeance of a private complainant which made the Appellant to undergo mental agony and torture besides making him lose his job in an unceremonious and void termination which was issued with indecent haste by the Respondent-Bank. It wbuld be a great travesty of justice of the Appellant's rights are not restored and, as such the appeal of the Appellant is accepted and the impugned order dated 26-3-1995 is set aside and the Respondents are directed to reinstate the Appellant in service with full monetary and other consequently benefits.