' SAIYED SAEED ASHHAD, J.--- This petition for leave to appeal has been filed by petitioner-Bank assailing the judgment dated 12-3-2004 of the Federal Service Tribunal (hereinafter referred to as the "Tribunal") in Appeal No,1472(K) of 1998 whereby the Tribunal has set aside the order of termination of the respondent and reinstated him in service with full monetary and other consequential benefits.
2. Facts requisite for disposal of this petition are that respondent was employed as Senior Executive Vice-President in Habib Bank Limited. He was involved in some criminal charges for which an F.I.R.
Was registered and he was arrested therein. As a result of his arrest which prolonged on account of dismissal of his bail application, he could not perform his duties on the post held by him. The petitioner-Bank after observing that the post could not be kept vacant for an indefinite period as it was not known when he would be enlarged on bail or released from the charges levelled against him and further that on account of his involvement in criminal acts they had lost faith and confidence in him, thus constraints on the part of the management from allowing to occupy a very senior and confidential position terminated his services with immediate effect in pursuance of Clause 15 of the Habib Bank Limited (Staff) Service Rules, 1981 on three months pay in lieu of notice.
3. The respondent submitted his representations, legal notices etc. But the petitioner-Bank did not redress the grievance of the respondent on the ground that his termination was simpliciter and further that his service with the bank was governed by the principle of master and servant which gave ample power to the petitioner-Bank to remove/terminate an employee after serving of notice or pay in lieu thereof and there was no requirement of providing opportunity of personal hearing.
4. As the petitioner-Bank failed to redress his grievance the respondent approached High Court of Sindh by filling Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan. This petition was dismissed after incorporation of section 2-A in the Service Tribunals Act, 1973 (hereinafter referred as the "Act"). It will be advantageous to reproduce the observations of the High Court regarding condonation of delay in filing appeal before the Tribunal 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."
5. The order of the High Court was challenged by respondent before this Court by way of C.P.L.A.
No,52 of 1998. The C.P.L.A. Was dismissed vide order dated 4-6-1998 upholding the order of the High Court to the effect that the Tribunal would have the sole jurisdiction to proceed with the case of the respondent after incorporation of section 2-A in the Act. Consequently respondent filed appeal under section 6 of the Act on 4-4-1998.
6. The petitioner objected to the maintainability of appeal before the Tribunal on the ground of limitation. The Tribunal after minute and thorough examination of the provisions of section 5 of the Limitation Act and taking into consideration the facts and circumstances of the case condoned the delay by placing reliance on the pronouncements of this Court laying down the principle for condonation of delay.
7. Feeling aggrieved and dissatisfied with the impugned judgment the petitioner-Bank filed this petition for leave to appeal.
8. We have heard the arguments of Mr. Shahid Anwar Bajwa learned Advocate Supreme Court on behalf of petitioner and Mr. Suleman Habibullah learned Advocate-on-Record for Respondent.
9. Mr. Shahid Anwar Bajwa in support of the petition raised the following three contentions:---
(i) That on 12-3-2004 when the judgment was announced, the Tribunal had ceased to have jurisdiction to proceed with the case of the respondent inasmuch as by that date the petitioner- Bank after completion of privatization process had been handed over to Agha Khan Foundation as they had acquired 51% interest in the petitioner-Bank whereafter it could not be said that the Bank was being run controlled and managed by the Federal Government thus depriving the respondent of the status of civil servants as per section 2-A of the Act.
(ii) That the petitioner on account of his involvement in criminal acts and offences of serious nature for which F.I.R. No,98 of 1994 dated 26-12-1994 was registered by F.I.A. Under sections 161/162 P.P.C.
Read with section 5(2) of Prevention of Corruption Act (II of 1947) was found to be dishonest unreliable unscrupulous and tricky person becoming unfit for employment in an institution like a Bank where utmost trust respect, credibility and honesty is required leaving no option with the Bank but to terminate his services. And
(iii) That the Tribunal had erred in condoning the delay in filing the appeal by the respondent as no cogent, plausible and satisfactory ground had been advanced by the respondent for the delay in filing the appeal and the Tribunal had acted in an arbitrary and fanciful manner in condoning the delay.
10. Mr. Suleman Habibullah, learned Advocate-on-Record appearing on behalf of respondent on the other hand supported the judgment of the Tribunal and submitted that the Tribunal had considered each and every aspect of the case in condoning the delay and minutely examined all the contentions of the counsel for the parties as well as relevant provisions of the law applicable to the facts and circumstances of the case relating to the rights, liabilities and obligations of the parties.
11. Relative to the first contention raised by Mr. Shahid Anwar Bajwa it is to be observed that this contention was not available to the petitioner at the time when the appeal was argued before the Tribunal, therefore, the Tribunal could not have considered and dilated upon the contention which has been raised for the first time today. The petitioner did not even raise this ground in their petition for leave to appeal filed by them in this Court. Even otherwise raising of this plea or ground before us would be of no help to the petitioner in view of the judgment of a larger Bench of this Court in Civil Petitions Nos.204 to 240, 247, 248-K of 2004 and 199-K of 2005 (Manzoor Ali and others v.
United Bank Ltd. And another) holding that mere fact of privatization of Nationalized Institution by way of transfer/sale of its controlling share by the Federal Government to a private party would not be sufficient to oust the jurisdiction of the Service Tribunal to proceed with the case of an employee of such institution as at the time of filing of the appeal before the Tribunal he was a civil servant as provided by section 2-A of the Act and a subsequent development would not deprive or strip such civil servant of his status as civil servant would have no adverse effect on the pending appeal. This contention is therefore decided against the petitioner.
12. Taking into consideration the second contention advanced by Mr. Shahid Bajwa it may be observed that it is a settled principle of law that mere allegation of commission of an offence against a person and registration of F.I.R. In respect of a certain offence or more than one offence against such person would not ipso facto make him guilty of commission of such offence and he would continue to enjoy the presumption of innocence until convicted by a Court of competent jurisdiction after a proper trial with opportunity to defend himself on the allegations levelled against him in the present case the petitioner had acted with utmost hurry and hot haste for which no plausible explanationt was provided by them either before the Tribunal or by Mr. Shahid Bajwa while arguing this petition in this Court. What was stated in support of removal/termination was that the post occupied by the respondent was of Senior Executive Vice-President which could not be kept vacant for a long period and that on account of the criminal act/offence committed by him he had lost faith, confidence and trust of the competent authority for holding such a senior appointment. Both the rounds advanced by Mr. Shahid Bajwa do not appear to carry weight. As regards the contention that the post could not be kept vacant for long period, it may be observed that it could have been filled in by posting another officer or additional charge of the post could have been given to another officer till such time C the respondent's case has been decided by a competent Court. However, in case of conviction he would have lost his job. The petitioner could have instituted departmental proceedings against the respondent for his alleged criminal acts under their service rules known as Habib Bank Limited (Staff) Service Rules, 1981 (hereafter referred to the "Rules"). Removal of the respondent under clause 15 of the Rules on the ground that respondent had lost faith, confidence and trust of the competent authority was an illegal order which, in the garb of termination simpliciter was in effect by way of punishment for the alleged criminal acts of respondent which were sub-judice before a competent Court and which subsequently were found to be baseless and false. Before the quashment of the F.I.R. And pendency of the criminal case the petitioner could have initiated departmental proceedings as the criminal case and the departmental proceedings are entirely different not being co-extensive nor inter-connected. Even after acquittal of respondent in criminal trial, departmental proceedings could have been instituted as the departmental proceedings are concerned with the service discipline, good conduct, integrity and efficiency of the employees. For the above reliance is placed on the case of Syed Muhammad Iqbal Jafri v. Registrar, Lahore High Court, 2004 PLC (C.S.) 809.
13. Admittedly at the time when action of termination was taken against the respondent the petitioner-Bank was being managed, run and controlled by the Federal Government and though at that time the exact status of the employees of the Nationalized Banks could not be determined but the fact is that the law of Master and Servant had ceased to be applicable as the petitioner-Bank was no longer a privately managed bank and further that the employees of the petitioner-Bank had been given certain guarantees and sanction under The Banks (Nationalization) Act, 1974. It is also an admitted fact that Service Rules for the petitioner employees had been framed and were in existence. The competent authority of the respondent-Bank thus had no power to terminate the services of the respondent without issuing show-cause notice to the respondent, calling upon his explanation and holding an inquiry, if so required into the allegations. The competent authority thus acted not only in contravention of the provisions of law relating to the removal, dismissal and termination of the employees of a nationalized bank but also violated the provisions of natural justice according to which no one can be condemned without providing him an opportunity of defending himself. Such order could not be said to be a legal, valid and proper order. The fact that the Service Rules in existence in the Petitioner's Bank did not have statutory backing would not give unlimited, unfettered and absolute power to the Petitioner to ignore the same and to deprive the respondent of his right. It of access to natural justice. If any authority is required in support of the above proposition the same are available from the judgments in the cases of (i) Arshad Jamal v.
N.-W.F.P. Forest Development Corporation and others 2004 PLC (C.S.) 802, (ii) The Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh and others PLD 2001 SC 176 (iii)
Managing Director, Sui Southern Gas Company Limited, Karachi v. Ghulam Abbas and others 2003 PLC (C.S.) 796; (iv) Nazakat Ali v. WAPDA through Manager and others 2004 SCMR 145 and (v) Anisa Rehman v. P.I.A.C. 1994 SCMR 2232.
14. With regard to the contention that the Tribunal had erred in condoning the delay on the ground that no plausible satisfactory and sufficient ground was advanced by respondent for condonation of delay in tiling the appeal, it may be stated that delay was condoned by the Tribunal after a minute and detailed examination of the facts and circumstances of the case the grounds advanced by the respondent for the delay and the pronouncements made by this Court in a large number of cases laying down the principle for condonation or otherwise of the delay in filing appeals and application etc. The Tribunal while condoning the delay did not commit any illegality or material irregularity or acted arbitrarily or against the settled principles governing condonation of delay which would compel this Court to interfere with the exercise of discretion. In a large number of the cases this Court has pronounced that when discretion of condoning the delay in filing an appeal has been legally judiciously and properly exercised then same is not required to be interfered with. Reference may be made to the case of Managing Director, Sui Southern Gas Company Limited, Karachi v. Ghulam Abbas and others 2003 PLC (C.S.) 796 wherein this Court while discussing the ambit of the discretionary power of the Tribunal relative to condonation of delay observed as under:-- ' Besides above reference, 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 Yagoob 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 2000 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 there from 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 case of Nazakat Ali v. WAPDA through Manager and others 2004 SCMR 145 this Court made the following observations:--- "... 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 justification 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 Bahadar v. Government of 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 ."
' Perusal of the relevant portion of the judgment of the Tribunal dealing with this issue leaves no doubt that it had decided this issue after a thorough and very minute examination of the facts, circumstances and the relevant case. Thus the exercise of discretion does not require to be interfered with.
16. For the foregoing facts, discussion and reasons this petition for leave to appeal is found to be without any substance. Accordingly it is dismissed and leave to appeal is refused.