' MOAZZAM HAYAT (MEMBER).--- Appellant Zafar Iqbal was a Senior Assistant in the National Bank of Pakistan, Main Branch, Gojra. He was compulsorily retired from service vide order dated 9-5-1977.
His departmental appeal dated 18-6-1997 was rejected vide letter dated 10-10-1997. It appears that the appellant filed another representation/ appeal on 6-2-1998 which too was rejected on 17-2- 1998. He filed the present appeal on 18-5-1998 wherein he prayed for setting aside the order of his compulsory retirement and his reinstatement in service with back benefits. This Tribunal held in its order dated 5-6-2000 that the appellant was a workman and the terms and conditions of his service were governed by the Wage Commission Award and other laws, therefore, he could not be declared a Civil Servant. The appeal was dismissed for want of jurisdiction. The Bench comprised of Mr. Imtiaz Ali. Khan and Mr. Nabi Bakhsh Bhatti, Members. Against this order of the Tribunal the appellant filed Civil Appeal No,1822 of 2001 in the apex Court. With the consent of the learned counsel for the parties and in view of the principle of law laid down in Zaheerullah and 13 others v.
Chairman, WAPDA, Lahore and others 2000 SCM R 826 the appeal was allowed by the apex Court vide its judgment dated 26-3-2003. The case was remanded to the Tribunal for fresh decision on merits in accordance with law.
2. It is submitted by the learned counsel for the appellant that no proper inquiry was held against the appellant, that the appellant was not served with any show-cause notice, that a copy of the inquiry report was not supplied to the appellant, that the appellant was not granted any opportunity of personal hearing and that the impugned order was not passed by the Competent Authority. It is further submitted by the learned counsel that no reasons were mentioned by the Competent Authority and by the Departmental Appellate Authority, therefore, these orders being mechanical in nature could not be sustained.
3. The appeal is resisted by the respondents. It is stated that the appeal is hopelessly time-barred.
On merits it is stated that the appellant had confessed his guilt by submitting an affidavit. It is also stated that in the inquiry certain charges were proved against the appellant.
4. We have heard the learned counsel for the parties and have also perused the record. Today nobody has appeared on behalf of respondents. We have, however, perused the objections filed by the respondents together with their written arguments.
5. The impugned order was passed on 9-5-1997. The appellant filed a departmental appeal on 18- 6-1997. It was rejected on 10-10-1997. The National Bank Employees Service Rules 1980 are not statutory in nature, therefore, the appellant was not under any legal obligation to file a departmental appeal. Notwithstanding that he filed a departmental appeal which was rejected on 10-10-1997. After the rejection of appeal on 10-10-1997 he should have filed the present appeal within 30-days. Instead of filing an appeal in this Tribunal he filed yet another appeal/ representation on 6-2-1998 which was rejected on 17-2-1998. There is no provision in the Service Tribunals Act, 1973 for a second departmental appeal/representation. As stated above the service rules of National Bank employees are not statutory and under these rules also there is no provision for a second appeal. Thus the second appeal/representation was not warranted by law. The time spent by the appellant on his second appeal/representation cannot be condoned.
6. Be that as it may, the second departmental appeal/representation of the appellant was declined on 17-2-1998 but even then the appellant did not file the present appeal within 30-days.
He filed it on 18-5-1998. It was, therefore, time-barred. The appellant has filed an application for condonation of delay. It is mentioned in the application that the appellant had fell seriously ill and was unable to move from his bed due to severe backache. It is also mentioned in the application that the appellant and remained under treatment of his specialist surgeon in Civil Hospital, Gojra from 15-2-1998 to 15-15-1998. We have seen the medical certificates issued by Dr. Prevaiz Iqbal Nasir. These certificates were issued on 15-2-1998 and 1-4-1998. In the first certificate it was stated that the appellant was suffering from "Lumbago" and was advised rest from 15-2-1998 to 31-3-1998.
In the second certificate dated 1-4-1998 it was mentioned by the doctor that the appellant was suffering from severe backache. He was advised rest from 1-4-1998 to 15-5-1998. We are afraid on these medical certificates we are not prepared to hold that the appellant was suffering from any disabling disease. If he could travel from his village Kathor Kalan to Gojra he could also send his appeal by post going to a Post Office. He the appellant could send an appeal on a plain paper to this Tribunal in time. It would have been considered on merits notwithstanding any procedural irregularities. We are of the view that a ground has been manufactured by the appellant for getting the delay condoned.
7. The period of limitation had started running against the appellant from the date the impugned order was passed as there was no provision for a departmental appeal. In any case it again started running against him when his first departmental appeal was rejected on 10-10-1997. No explanation has been given as to why the appeal was not filed within 30 days starting from 10-10- 1997. The second departmental appeal was filed on 6-2-1998. It is not explained as to what the appellant had been doing for the period from 10-10-1997 to 6-2-1998. In time-barred cases delay of every day has to be accounted for. The appellant has not explained the delay for the period from 10-10-1997 to 6-2-1998 and it is fatal to his appeal.
8. We find no merit in the application for condonation of delay. The application is rejected and the appeal is held to be time-barred.
9. The respondents had held an inquiry against the appellant after serving with a charge sheet notwithstanding the fact that the 1980 Rules were not statutory in nature. He was explained all the charges. His reply in detail was taken by the Inquiry Officer. As many as 12 charges were levelled against him. Charges Nos.2, 3, 4, 5, 6, 8, 9, 11, and 12 were not proved against him. This clearly indicated that the inquiry was conducted by the Inquiry Officer in a very fair manner. Charges Nos.1, 7 and 10 were proved against him. These charges related to deviation from the Banking procedure while dealing with the accounts of different consumers. The appellant had also confessed his guilt by submitting an affidavit. The learned counsel for the appellant has vehemently argued that this affidavit of the appellant did not relate to the present case. The argument of the learned counsel is not correct. The stamp paper on which this affidavit was recorded was purchased on 30-1-1996.
The Inquiry Officer had mentioned about this affidavit in his inquiry report. It clearly proves that this affidavit related to the present case. In his this affidavit the appellant had admitted that he had committed mistake and was responsible for that. He had also admitted that he had refunded Rs,34,500 to the Bank and would be responsible for any other amount claimed by other account, holders. In the presence of his affidavit it can not be held that the appellant had not committed any misconduct.
10. The learned counsel for the appellant has also argued that no loss had been caused to the Bank and this fact has been admitted by the Inquiry Officer in his inquiry report, therefore, penalty of compulsory retirement imposed upon the appellant is very harsh. We do not agree with the learned counsel. In his reply mentioned above the appellant had taken entire responsibility on himself and had exonerated the other officials of the Bank. The Banking procedure was not followed by the appellant and in this manner he had committed misconduct. This is correct that no pecuniary loss had been caused to the respondent-Bank as per report of the Inquiry Officer but this appears to be the sole reason for lesser punishment of compulsory retirement awarded to him.
Had there been any financial loss to the Bank the respondents would not have awarded this lesser penalty to the appellant entitling him to all types of pensioner benefits. On the contrary they would have dismissed him from service and they might have also reported the matter to the police. There were extenuating circumstances in favour of the appellant for which compassion was shown to him by the respondents. The penalty imposed upon him is not harsh or severe.
11. This complaint of the appellant that he was not supplied with inquiry report does not appear to be correct. In his departmental appeal this ground was not taken by him. Even otherwise in the absence of statutory disciplinary rules he could not claim copy of the inquiry report. In cases relating to misconduct in financial institutions departmental punishments and penalties cannot be set aside on technicalities which do not cause any prejudice to the Bank employee. In this case also on a mere technicality the penalty awarded to the appellant cannot be sustained particularly when we find that no prejudice had been caused to him.
12. The next argument of the learned counsel for the appellant is that reasons were not given in the impugned order and in the order of Departmental Appellate Authority. This is correct that reasons were not given in these orders but we are of the view that this technical omission did not cause any prejudice to the appellant. We would have certainly considered this argument of the learned counsel for the appellant had we not come to this conclusion that the appellant was guilty of deviating from the Banking Rules. People repose confidence in Banks. This confidence of the people is the main asset of a financial institution. When the trust is betrayed the reputation of the Bank is seriously tarnished. The Bank employees cannot be allowed to escape from disciplinary action for this sole ground that the order passed against them departmentally did not contain reasons. When the employee knows the reasons for action against him and these reasons are held to be quite valid by Court then this argument is not available that mechanical order had been passed. In view of this position we hold that the appeal cannot succeed on this ground that reasons were not mentioned by the Competent Authority and by' the Departmental Appellate Authority in their respective orders. Each and every case has to be decided on its own merits. In the instant case the appellant had the knowledge that he had committed irregularities and he had confessed his guilt.
In view of his confession it did not lie in his mouth to say that mechanical order had been passed against him.
13. The last argument of the learned counsel for the appellant is that the impugned order was not passed by the Competent Authority. We have seen the impugned order. It is clearly mentioned therein that the impugned order had been passed by the Competent Authority. All official acts are presumed to have been performed in accordance with the rules till the contrary is proved. It was for the appellant to prove that the impugned order had not been passed by a Competent Authority. He has failed to discharge his that onus. The mention of words 'Competent Authority' in the impugned order are sufficient to show that such order had been passed by that Authority and not by any other Authority. The argument is repelled.
14. For the above reasons the appeal is dismissed as time-barred as well as on merits.
15. There shall be no order as to costs. Parties be informed.