' SAGHEER AHMAD QADRI, J.--- Petitioner Nadeem Haroon Jameel son of Nisar Ahmed Jameel, Ex- Assistant (U/S), NBP, Choa Saiden Shah Branch, Chakwal has preferred this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 giving the facts that he was appointed as Assistant in National Bank of Pakistan vide appointment order dated 5-5-1996 and he performed his duties diligently; that on the complaint by respondent No,4, the Manager, NBP, Choa Saiden Shah Branch F.I.R. No,3 dated 20-3-2002 under sections 420, 468, 471, 109 and 409, P.P.C.
Read with section 5 of the Prevention of Corruption Act (II of 1947) was registered at Police Station FIA, CBC Wing Islamabad; that during the pendency of the criminal proceedings respondent No,1/The Regional Chief Executive, National Bank of Pakistan, Regional Headquarters, Islamabad charge sheeted the petitioner on 31-7-2002 under the allegations that he in connivance and collusion with Mr. Noor Hussain Minhas OG-II (U/S) helped him in defrauding the bank and for deliberately making bogus entries in the record; that as petitioner was involved in criminal proceedings, therefore, due to lack of knowledge he could not participate in the departmental proceedings and was completely focused to face the criminal charge, therefore, his services were terminated vide ex parte order dated 25-7-2003 passed by respondent No,4; that criminal charge against the petitioner culminated into acquittal vide order dated 15-7-2009 by the learned Special Court (Offences in Bank, Punjab; that the main ground for termination of the services of me petitioner vide ex parte order dated 25-7-2003 and as criminal proceedings concluded ih acquittal, therefore, he was liable to be reinstated in the service; that petitioner approached the respondent authorities for redressal of his grievance who not only ignored the verdict of the court of law but also refused to reinstate him without taking into consideration the fact that the main accused was acquitted by the court and was reinstated with all back benefits by the Hon'ble Supreme Court of Pakistan. Prayed that as his role was lesser than the principal accused, therefore, he be treated equally and reinstated in service from the date of dismissal with all back benefits.
2. Parawise comments were called from the respondents which were submitted while raising 5 preliminary objections about the maintainability of the writ petition on the grounds that as NBP (Staff) Service Rules, 1980 are non-statutory, hence, petitioner cannot invoke the constitutional jurisdiction in respect of terms and conditions of his service with the bank; that petitioner had a legal and statutory remedy available against the order of his dismissal by way of appeal before the Federal Service Tribunal within the period of limitation prescribed under section 4 of the Service Tribunal Act, 1973. As petitioner was dismissed from service on 15-7-2003 but he did not avail the remedy before the proper forum within the statutory period hence he cannot invoke the, constitutional jurisdiction under Article 199, of the Constitution of Islamic Republic of Pakistan, 1973; that the instant writ petition is filed with a delay of 8 years, hence, on the principle of lathes it is liable to be dismissed; that Noor Hussain Minhas another employee of the bank who was charge sheeted and dismissed from the service, challenged his dismissal within the limitation before the Service Tribunal and ultimately he approached the Hon'ble Supreme Court of Pakistan and was reinstated but the petitioner as earlier mentioned did not challenge his dismissal within limitation, therefore, he cannot claim the same treatment and his petition in these circumstances is not maintainable; that criminal and disciplinary proceedings are distinct and separate, hence, if criminal proceedings are concluded in favour of the petitioner it has no bearing on the disciplinary proceedings whereby petitioner was dismissed from service. On merits all the assertions made by the petitioner. Were refuted and prayed that this writ petition be dismissed.
3. Learned counsel for the petitioner reiterated the stand as mentioned above, he while referring the charge sheet dated 31-7-2002 under the NBP (Staff) Service Rules, 1980 argued that firstly petitioner was not served and secondly if this charge sheet is seen, it is framed subsequent to the promulgation of the Removal from Service (Special Powers) Ordinance, 2000 whereby the NBP (Staff) Service Rules, 1980 were repealed, hence, the proceedings were void ab-initio; that firstly the petitioner was not afforded an opportunity of hearing nor any notice was ,served on him and secondly he was charge sheeted and his termination order was passed on 27-11-2002 in clear violation of the Removal from Service (Special Powers) Ordinance, 2000; that Hon'ble Supreme Court of Pakistan dismissed the appeal (Civil Appeal No,1409 of 2004) filed by the respondent as Federal Service Tribunal vide order dated 4-5-2004 reinstated him on the grounds that disciplinary proceedings against him were void ab-initio as those were carried on under the Rules which subsequently have been repealed by the Removal from Service (Special Powers) Ordinance, 2000.
Learned counsel argued that when firstly petitioner was not in the knowledge of any disciplinary action initiated against him whereby his services were terminated and he had been pursuing his case under criminal charges before the court of competent jurisdiction and ultimately when he was acquitted on 15-7-2009 he filed appeal against his termination from service before the Federal Service Tribunal, which appeal later on was disposed of in the light of repeal of section 2-A of the Service Tribunal Act and later on petitioner had to move this writ petition. Learned counsel contends that petitioner as well as his colleague officer Noor Hussain Minhas were terminated under the same allegations rather case of petitioner was on better footing than the said officer; that on the same grounds his appeal before the Federal Service Tribunal was allowed and he was directed to be reinstated. Later on appeal filed by the respondents was dismissed by the Hon'ble Supreme Court of Pakistan; that petitioner is also entitled to the same treatment as under Article 4 read with Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 equality of the citizens/persons is guaranteed, therefore, he is also entitled to be reinstated; that petitioner's dismissal from service as right from the beginning was void ab initio and petitioner's appeal filed before the Service Tribunal was disposed of on technical grounds, therefore, no other efficacious remedy is available to the petitioner, hence, this writ petition is maintainable and he is entitled for reinstatement in the service on the same grounds as that of his, colleague officer. Reliance in this respect is placed on "Liaquat Hussain v. Government of Punjab through its Secretary, C&W Department, Lahore" (PLD 2009 Lahore 101), "Mst. Samina Abid v. Chairman, Pakistan International Airlines, Quaid-e-Azam International Airport, Karachi and 2 others" (2009 CLR 1573), "Civil Aviation Authority through Director General v. Javed Ahmad and another" (2009 SCMR 956), "Abdul Tauheed Khan v. Director-General, C.A.A. Karachi and others" (2009 PLC (C.S.) 497), and "Managing Director, Pakistan Television Ltd., Islamabad and 3 others v. Sadique Ahnzed, Associates Engineer and 2 others" (2007 PLC (C.S.) 1244).
4. Conversely, learned counsel for the respondents vehemently opposed the arguments advanced by learned counsel for the petitioner on the grounds that petitioner was suspended under the allegations that he in collaboration with his colleague officer Noor Hussain Minhas (OG-III) made bogus and fictitious entries in the manual as well as in' the computerized record and thus associated his colleague officer for embezzlement to the tune pf Rs,4,86,000; that petitioner was charge sheeted on 31-7-2002 and as he in spite of issuance of the Show Cause Notice did *an appear before the Inquiry Officer, therefore, ex-parte evidence was recorded and inquiry was concluded against him on 27-11-2002 and his services were terminated vide order dated 25-7- 2003; that he did not file any appeal against his termination within the limitation before the Service Tribunal and later on only when he was acquitted by the Special Court (Offences in Banks), Punjab Lahore he moved appeal before the Service Tribunal which was disposed of having become infructuous as Service Tribunal in the light of "Mubeen-ulIslam's Case" had no jurisdiction; that the present writ petition in these circumstances is not maintainable and is hit by principle of lathes. It was further argued that acquittal under section 249-A. Cr.P.C. By a learned trial court cannot be treated as acquittal on merits, hence, petitioner cannot claim and avail its benefit for reinstatement in service as his services have been terminated in due process. While relying on "Arif Ghafoor v. Managing Director, H.M.C., Te.Cila and others" (PLD 2002 Supreme Court 13) and "Mir Nawaz Khan v. Federal Government through Secretary, Ministry of Finance, Islamabad and 2 others"
(1996 SCMR 315) prayed that this petition be dismissed.
5. I have heard the learned counsel for .The parties and have gone through the record.
6. Admittedly, petitioner was charge sheeted on 31-7-2002 under NBP (Staff) Service Rules, 1980.
The relevant portion of the charge sheet is hereby reproduced:--- CHARGE SHEET AND SHOW-CAUSE NOTICE UNDER NBP (STAFF) SERVICE RULES.
' In exercise of powers conferred upon the undersigned Mr. Nadeem Haroon Jamil, Assistant (U/S)
Choa Saiden Shah Branch is hereby charge sheeted for the following acts of omission/commission committed by him and show cause as to why penalty/penalties vide Rule 37 of NBP Staff (Service)
Rules, 1980 should not be imposed upon him.
(1) He, in collaboration with Mr. Noor Hussain Minhas, OG-III (U/S) helped him to defraud the Bank and deliberately made following bogus/fictitious entries in DTRs/Computer posting sent to Computer Centre, Islamabad, Bank Transfer Scroll and Manual Ledger Accounts. Thus, he provided the ample opportunity to Mr. Noor Hussain Minhas in defrauding the Bank. {{TABLE}} Sr.
No.DATEDCHEUQE NUMBERA/C NO.Shown Debited against A/c No.Found posted in --- 1.10-9- 2001449488 Rs.200000PLS-12191-7 PLS 7650-1Computer Posting DTR/Transfer Scroll 2.20-9- 2001981183 Rs.200000PLS 8802-6 PLS11953-7 As loose chequeDay Book/Computer posting sheet/DTR 3.28-9- 2001540179 Rs.100000 10890 Rs.100000PLS11953-7 PLS 9323-4Rs.200000 as loose Cheque No.540179 against PLS 5376-8 PLS 11953-7Computer Posting Day Book/DTR 4.20-9- 2001108186 Rs.25000PLS 9323-4 PLS 7650-1 Computer posting/DTR {{TABLE}}
2. He, by taking the opportunity of mutual understanding with passing officer Mr. Noor Hussain Minhas, 0G-111 (U/S) and in view of getting undue monetary benefits, got his following bogus cheques pertaining to his Account No,10312-S of heavy amounts passed from him despite the fact that balance was not available in his account, that too, the posting of these cheques have been shown by him against other accounts in the Computer Posting/DTR/Day Book/Transfer Scroll. Thus he defrauded the Bank with an aggregate amount of Rs,4,86,000."
' Vide termination order dated 25-7-2003 issued against the petitioner, his services were terminated as a result of ex parte inquiry conducted against him.
7. There is no denial to the fact that after issuance of dismissal order, the petitioner did not file any appeal before the Federal Service Tribunal. He, however, if record available is seen, had been remained on pursuing his case registered against him on criminal side and vide order dated 15-7- 2009 he was acquitted under section 249-A, Cr.P.C. Of the charges against him. Relevant paragraph of the said order wherein role played by his colleague officer Noor Hussain Minhas was discussed is hereby reproduced:--- "Learned counsel of the accused has prayed for acquittal of the accused on the ground that neither the P W.3 Zonal Operations Chief NBP recorded today, nor Sultan Mehmood (0G-111)
PW.2/complainant and Muhammad Yaqoob OH.111 PW.1 bank officer have stated anything incriminating against the accused present in court and whatever they have stated, that relates only to Noor Hussain Minhas OG.111 accused already acquitted vide order dated 11-7-2009 of this court. The learned counsel maintained that the star witnesses of the prosecution have been recorded and no purpose of the prosecution will be served by recording of the remaining PWs who are formal witnesses only. Learned counsel also reiterated that the case relates to the year 2001 and after making good loss of the bank by Noor Hussain Minhas (acquitted accused) going ahead in the trial against the accused present in court will be nothing more than an exercise in futility."
8. Admittedly, petitioner filed Appeal No,61(L)CE/2009 dated 2-9-2009 against his dismissal before the Federal Service Tribunal, Lahore which appeal being not maintainable was dismissed vide order dated 8-7-2011 due to want of jurisdiction in the light of repealing of section 2-A of the Service Tribunal Act and earlier decision by the Tribunal. It was, however, observed that appellant if so advised may seek remedy before the appropriate forum. Subsequent to dismissal of the appeal petitioner filed instant writ petition.
9. If the role attributed to Noor Hussain Minhas, colleague officer of the petitioner is seen, he was alleged the main role for misappropriation of the accounts and he subsequent to registration of the F.I.R. Deposited the alleged misappropriated amount with the bank while petitioner was alleged that he abetted his co-accused in commission of the alleged offence. Said Noor Hussain Minhas according to the record available as well as in the light of parawise comments submitted by the respondents was acquitted of the criminal charge by the learned trial court. Although his services were terminated under the same allegation as that of against the petitioner but he preferred an appeal before the learned Federal Service Tribunal, which was allowed on the grounds that proceedings against him were conducted under the NBP (Staff) Service Rules, 1980, which in the light of Removal from Service (Special Powers) Ordinance, 2000 has already been repealed, thus proceedings were void ab initio. The respondent filed Civil Appeal No,36 of 2005 against the order dated 4-5-2004 passed by the learned Federal Service Tribunal, Islamabad in Appeal No,1135(R)/CE of 2003 titled "The Manager, National Bank of Pakistan, Head Office, Karachi and others v. Noor Hussain Minhas" and the Hon'ble Apex Court vide order dated 10- 11-2005 dismissed the same while upholding the findings passed by the learned Federal Service Tribunal whereby said Noor Hussain.
Minhas was directed to be reinstated with back benefits. It is an admitted fact that petitioner Nadeem Haroon Jamil and his colleague officer Noor Hussain Minhas were suspended and later on terminated under the allegations that they allegedly misappropriated rather Noor Hussain Minhas defrauded the bank and misappropriated different amounts while petitioner abetted/facilitated him in commission of that offence. If Charge Sheet against the petitioner under the departmental proceedings is seen, it was initiated and carried on under Rule 37 of NBP (Staff) Service Rules, 1980.
The petitioner was proceeded against ex parte, which fact is clear from the inquiry report dated 31- 7-2002 prepared by Pervaiz Ahmad Kiyani, the Inquiry Officer. The findings of the Inquiry Officer also show that ex parte proceedings were carried on against the petitioner. The dismissal order dated 25-7-2003, if seen, it reads as under:--- "The competent authority at Head Office, Karachi have decided in the above case vide their letter No,HRMD/ID/CUFF/ JHELUM-2044/1887 dated July 22, 2003, as under:--- "After taking into consideration all aspects of the case, the competent authority has dismissed Mr. Nadeem Haroon Assistant (u/s) from Bank's Service w,e,f, the date of his unauthorized absence from duty and treating his period of suspension as punishment."
' Mr. Nadeem Haroon Jamil, Assistant (u/s) is, therefore, dismissed from the Bank's Service as contained in the decision of the competent authority here-in-above."
' In the order passed by the Hon'ble Supreme Court of Pakistan in Civil Appeal No,36 of 2006 in case of Noor Hussain Minhas, the colleague officer of the petitioner-in-Para-2--their Lordships were pleased to uphold the grounds on the basis of which the learned Federal Service Tribunal allowed the appeal and directed his reinstatement. The Hon'ble Supreme Court of Pakistan while referring the judgment in C.P.No,220-K of 2005 titled "(Azizullah Memon v. Province of Sindh and another) observed:--- "In the presence of express and specific language employed in the Ordinance neither the departmental authorities nor the Tribunal bothered to notice that after the date of promulgation of the Ordinance all disciplinary proceedings should have been initiated under the Ordinance rather than the old Rules enforced in 1973. This Court has already ruled in a number of judgments that this Ordinance has the overriding effect over all other laws on the subject except in case of proceedings, which were already pending before promulgation of the Ordinance. Since the in case of proceedings, which were already pending before promulgation of the Ordinance. Since the impugned action was initiated and taken to its logical conclusion under a misconception of law and under a wrong law. It has vitiated the entire proceedings including the final order, which cannot be sustained under the law. The proceedings as well as final order is, therefore, liable to be set aside."
' On the basis of above order as the appeal filed by Noor Hussain Minhas before the learned Federal Service Tribunal was upheld, therefore, he was reinstated with back benefits, which fact has not been denied by the respondents.
10. No-doubt petitioner after his removal from the service vide order dated 25-7-2003 did not challenge the same before the learned Federal Service Tribunal but he was also acquitted by the learned trial court under the criminal charges vide order dated 15-7-2009. Petitioner later on filed Appeal No,61(L)/CE/2009 on 2-9-2009 before the learned Federal Service Tribunal but his appeal was disposed of on the grounds that Tribunal had no jurisdiction by that time. Petitioner's appeal was disposed of leaving the petitioner to approach an appropriate forum, hence, he filed instant writ petition.
11. The respondents side has vehemently opposed this writ petition firstly on the ground that acquittal order under section 249-A, Cr.P.C. Cannot be termed as a clean and honorable acquittal; secondly that petitioner never challenged his dismissal before the learned Federal Service Tribunal till earning the acquittal from the learned trial court and his appeal was also not maintainable in view of the fresh amendments in the Service Tribunal Act and later on when he filed this writ petition it was too late for him to agitate his grievance thus instant writ petition was not maintainable being hit by principle of lathes. Admittedly petitioner and his colleague officer Noor Hussain Minhas were terminated under the same charges. Petitioner, however, did not challenge the same as already mentioned before the learned Federal Service Tribunal and kept on waiting the result of his criminal proceedings. There is no denial to the fact that departmental proceedings were initiated against the petitioner ex parte. Petitioner had no representation before the Inquiry Officer, thus, whatever the inquiry was conducted it was one-sided.
12. It is now settled that whenever a court, tribunal or authority proceeds ex parte against a person/party, its responsibility to apply the correct law/rules as well as procedure is enhanced. It must ensure rather responsible to apply the correct law/rules as well as procedure applicable in the circumstances according to the subject concerned. That court, tribunal or authority while proceedings ex parte against a person is responsible to safeguard the interest of that person in his absence. The Tribunal or any authority first has to decide its jurisdiction in the light of law/rules applicable. It is not necessary that whenever an objection is raised then a Tribunal/authority should consider its jurisdiction keeping in view the law/rules applicable rather without raising any such objections and specially in cases where ex parte proceedings are carried on, the Tribunal/that authority must first consider and determine its jurisdiction in the light of law/rules applicable at that time and then proceed further. Herein this case, admittedly, the Removal from Service (Special Powers) Ordinance, 2000 had already been promulgated whereby NBP (Staff)
Service Rules, 1980 had been repealed. Charge sheet was prepared against the petitioner on 31-7- 2002 under NBP (Staff) Service Rules, 1980, thus, all departmental proceedings were void, ab initio.
13. Right to fair trial although earlier was guaranteed under the Constitution but in recent amendment Article 10A has been inserted whereby it is specifically guaranteed. Article 10A is hereby reproduced:--- "For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process."
' Right to fair trial and due process if further elaborated it automatically covers the application of relevant law applicable at the relevant time. Thus, whole of the proceedings conducted under the NBP (Staff) Service Rules, 1980 and subsequent termination of the petitioner was void. No doubt, petitioner did not challenge his termination but it has now been settled by the Hon'ble Supreme Court of Pakistan in C.P.No,1043 of 2006 i,e, case of Mst. Farkhanda Tallat wherein it has been observed:--- "According to Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 all citizens are equal before law and entitled to equal protection of law and if this Court decides a point of law relating to the terms and conditions of civil servant who litigated and there were other civil servants who may not have taken any legal proceedings, in such a case, the dictates of justice and rule of good governance demand that the benefit of the said decision be extended to other civil servants also, who may not be parties to that litigation instead of compelling them to approach the Tribunal or any other legal forum."
Further reference can be seen from "Hameed Akhtar Niazi v. Secretary Establishment Division, Government of Pakistan and others" (1996 SCMR 1185) and "Tara Chand and others v. Karachi Water and Seweraje Board" (2005 SCMR 499). As petitioner's colleague officer Noor Hussain Minhas under the same allegations/charges was tried by a court of competent jurisdiction and was acquitted like petitioner and he was terminated but later on reinstated, therefore, petitioner in these circumstances in the light of above referred judgment is also entitled for the same treatment. Resultantly, this writ petition is allowed. Petitioner's termination order dated 25-7-2003 is set aside and it is directed that he be reinstated in service with all back benefits.