' JAWAD HASSAN J.--- Through the instant petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner has called in question the legality of impugned memorandum No,HRMG/IDW/DC/DHO-51/4892 dated 17.11.2016 (the "Impugned Memorandum") whereby he was dismissed from bank service.
2. Unnecessary details apart, brief facts are that the Petitioner joined service in National Bank of Pakistan on 13.02.1996 and has been promoted as Assistant Vice-President in year 2009.
Subsequently, after promotion, the Petitioner was transferred and posted as Manager National Bank of Pakistan Chitagong Branch in April, 2005, Bangladesh and performed his duties there. In 2011, the Petitioner, after his repatriation to Pakistan, was posted as Assistant Vice-President, where disciplinary proceedings were initiated against him pertaining to his posting in Bangladesh, and ultimately he was dismissed from bank service vide Impugned Memorandum.
3. The legal submissions, put forwarded by learned counsel for the Petitioner, can be summed up in the words that the Respondents have not adopted the procedure for conducting and finalizing disciplinary proceedings under National Bank of Pakistan Staff Service Rules, 1973 (the "1973 Rules"), which are declared statutory in the case of Muhammad Tariq Badr and another v. National Bank of Pakistan and others (2013 SCM R 314). The Petitioner has been awarded penalty of dismissal from service on the basis of proceedings conducted under the National Bank of Pakistan Employee Discipline Policy, 2012 (the "2012 Policy") which are non-statutory in nature and are issued by HRM and Admn Group, National Bank of Pakistan without approval of Government of Pakistan, Karachi.
The counsel further submits that under Rule 39 of the 1973 Rules, the power to issue charge sheet, show-cause notice as well as power to appoint inquiry officer/inquiry committee vests with competent authority mentioned under Column 4 of Appendix I of the 1973 Rules (being the Managing Director and predesignated as President), whereas the Impugned Memorandum has been passed by incompetent authority keeping aside the statutory rules. The counsel further contended that neither alleged competent authority/the Respondent No,10 has issued show-cause notice nor proper chance of personal hearing was granted to the Petitioner which is a gross violation of principles of natural justice. The Disciplinary Cases Committee was constituted by the President National Bank of Pakistan through circular dated 30.03.2015 wherein Mr. Tariq Jamali, SEVP/Group Chief was nominated as Chairman, who himself is co-accused. However, no action was taken by the competent authority before nominating him. The counsel submits that proceedings were initiated against the Petitioner with mala fide intent, defined in the case The Federation of Pakistan through the Secretary Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmad Khan and others (PLD 1974 SC 151), and no opportunity was provided to the Petitioner which was mandatory as highlighted in Mrs. Anisa Rehman v. PIA and others (1994 SCM R 2232) and Province of Sindh through Secretary Education Government of Sindh, Karachi and others v. Miss Saima Ban and others (2003 SCM R 1126). It was also argued that approaching this Court in its constitutional jurisdiction, without availing alternate remedy of departmental appeal, is justified on the basis of principle held in Town Cominittee Gakhar Mandl v. Authority under the Payment of Wages Act Gujranwala and 57 others (PLD 2002 SC 452); Messrs Phoenix Mills Ltd.
Karachi and others v. City District Government Karachi and others (PLD 2003 Kar. 83) and Muslim Abad Cooperative Housing Society Ltd. Through Secretary v. Mrs. Siddiqa Faiz and others (PLD 2008 SC 135). The counsel submits that the allegations levelled against the Petitioner in the charge sheet are false and baseless and nothing is available on record to prove the charges against him, hence prayed for suspension of impugned memorandum and reinstatement of Petitioner into bank service.
4. The Report and parawise comments have been filed on behalf of the Respondents Bank. Learned counsel for the Respondents has strongly controverted the contentions of the Petitioner and submitted that tthe whole disciplinary proceedings were conducted under the 1973 Rules and the Petitioner was treated in accordance with law. He submits that the Petitioner was granted opportunities of hearing and charges were fully proved before the committee on the basis of evidence duly examined by the Petitioner before the concerned officers and the Petitioner was awarded punishment of dismissal under Rule 36(h) of 1973 Rules. He further objected to maintainability of this petition on the ground that the Petitioner has alternate remedy under Rule 40 of the 1973. Rules, and even otherwise the factual controversy involved in this Petition cannot be resolved in exercise of constitutional jurisdiction, as established in the cases titled Sheikh Muhammad Sadiq v. Ilahi Bakhsh and 2 others (2006 SCM R 12) and Col Shah Sadiq v. Muhammad Ashiq and others (2006 SCM R 276).
5. Arguments heard and record perused.
6. Since this matter ha: been heard at length, therefore it is decided as a pacca matter.
7. From the perusal of the record, it is revealed that the Petitioner was issued a Charge Sheet and Show-Cause Notice on 16/18.10.2012, having ten (10) allegations pertaining to posting in Bangladesh, in which Respondent No,3-A was appointed as Inquiry Officer. The Petitioner submitted a detailed reply on 01.08.2013 along with documentary evidence, and then, Respondent No,3-A gave its recommendations based upon the arguments.
8. Further, the Respondents Nos,3 and 4 issued additional charge sheet and show-cause notice to the Petitioner on 31.12.2014 in which a disciplinary committee was constituted. The Petitioner submitted his reply on 15.04.2015. It is also pertinent to note that Second show-Cause Notice was also issued by Respondent No,6 to the Petitioner on 30.08.2016, in which initial Charge Sheet and Show-Cause Notice dated 02.01.2015 were acknowledged, for the acts of omission/commission, irregularities and gross misconduct committed by the Petitioner requiring him to explain his position in seven (7) days and to appear in person on 7.09.2016, if desired. It was also replied by the Petitioner on 27.09.2016, and the Petitioner was granted opportunity of hearing. On 17.11.2016, the Respondent No,8 dismissed the petitioner by stating that "... After taking into consideration all aspect of the case, the competent authority has dismissed him from the Bank's service with immediate effect in the above case."
9. Before rendering any decision, it is essential to see below mentioned two moot points arising out of the instant issues:
(a) Whether the writ petition is maintainable, in view of the statutory remedy of appeal/review provided under Rule 40 of the 1973 Rules?
(b) Whether the departmental proceedings have been taken place against the Petitioner under the National Bank of Pakistan Staff Service Rules, 1973 or Employee Discipline Policy, 2012?
10. Before going any further, it is manifest to note that in the case of Muhammad Tariq Badr and another v. National Bank of Pakistan and others (2013 SCM R 314), the honourable Supreme Court has clearly held that the 1973 Rules are statutory in nature and any rules formulated by thQ Board of the Bank pursuant to its authority in the nature of management/superintendence of the affairs of the Bank and/or policy making power, cannot enjoy the status of a statutory instrument. It was held in para 12 as follows: "12. .... and it is candidly held that whosoever was inducted into the service of NBP ipso jure was governed by the statutory rules of 1973, irrespective of the timing of his induction, as the said rules have been considered and construed herein by me to be the rules envisaging the terms and conditions of service of N.B.P. Employees throughout in force, because these, were not repealed, replaced or annulled as held earlier ..."
11. In view of Tariq Badr case supra, it is established that the 1973Rules are statutory in nature and the Petitioner is also governed by statutory 1973 Rules, which have overriding effect on the 2012 Policy of HRM and Admn. Group, HO, NEW, Karachi. Importantly, irrespective of the fact that whether the Petitioner was dealt under 2012 Rules or 1973 Rules, it is essential to note the statutory right of appeal/review available to the Petitioner under the statutory 1973 Rules: "40. Appeals and applications for review:
(1) An employee shall have the right of appeal or of making an application for review as provided in this rule against any of the penalties imposed upon him.
(2) An appeal or, as the case may be, an application for review shall lie:
(a) in the case of employees in Category I, to the Central Board ...
(b) in case of other employees, to an authority next higher to that which has passed the orders in question; ' Provided that in every case where the employee concerned so desires, he will have a right to be heard in person before the authority competent to hear the review or, as the case may be, the appeal.
12. Hence, after dismissal from services or any penalty imposed on the Petitioner, he has a right to file an application for, review or appeal under Rule 40(1) of the 1973 Rules before the Central Board, being employee in Category I. Rule 40 of 1973 Rules does not state that the appeal/review may only be filed if the disciplinary proceedings have been initiated under 1973 Rules, rather it gives the right to every aggrieved employee to approach the competent authority under Rule 40 for redressal of his grievances. However, as per available record, the Petitioner has neither availed this remedy, nor has filed the appeal or review of the Impugned Memorandum, without providing any reason thereof. The Petitioner has only relied on the judgments Town Committee v. Authority under the Payment of Wages, Act and others (PLD 2002 SC 452); Phoenix Mills Ltd. v. City District Government Karachi (PLD 2003 Kar. 83) and Muslimabad Cooperative Housing Society Ltd. v. Siddiqa Faiz and others (PLD 2008 SC 135), to establish that availability of alternate remedy would not bar the constitutional jurisdiction of this Court.
13. In the Town Committee supra judgment, it has been established that "despite availability of alternate remedy where the impugned order was ex facie without lawful authority or where it was a case of lack of or absence of or even excess of jurisdiction, a writ of certiorari could be granted".
Similarly, in the Phoenix Mills supra case, it was held that "if an order is palpably without jurisdiction the aggrieved person shall not be asked to have recourse to the forums available in the statue for the simple reason that an act without jurisdiction is void ab initio and consequently the aggrieved person shall be within his right to invoke the Constitutional jurisdiction of the High Court. "
Therefore, in view of the above judgments, it is established that the Petitioner could only invoke the constitutional jurisdiction of this honourable Court if the Impugned Memorandum, is ex facie unlawful and/or if the authority passing order lacks the jurisdiction to pass such, order.
14. It is also essential to note the Rule 39 of the 1973 Rules, which states the procedure for disciplinary actions as follows: "39: Disciplinary action procedure: (1) Before it is decided to impose any penalty on an employed under rule 36 for an offence of which he has been reported guilty, he shall be called upon by the competent authority to render a written explanation of the charges against him and show cause by such date as may be specified in this behalf as to why disciplinary action should not be taken against him. The employee's explanation together with the charges against him shall be submitted to the authority competent to award the punishment.
(2). The authority shall either enquire into the case himself or obtain an independent report on the case in writing from an officer or a committee of officers Specially deputed by the authority to investigate the case. The request together with employee's statement shall be laid before the authority who shall then consider the matter and award such punishment, if any, as he deems proper in the circumstances. The decision of such authority shall be conveyed in writing to the employee concerned;
15. Importantly, the 'competent authority' has been defined in Rule 3(d) of the 1973 Rules, which states that the 'competent authority' means an authority specified in Column (4) of Appendix I of 1973 Rules, which is mentioned at serial No,11 of the Appendix I table, being Managing Director (now the President) of NBP in case of employees belonging to Category I (the Petitioner). In view of the above section, it is essential to note that sub-rule (1) of Rule 39 clearly states that the 'competent authority' shall issue show-cause notice. Further, sub-rule (2) of Rule 39 specifically allows the authority to either enquire into the matter himself, or through committee of officers to investigate the case. Importantly, sub-rule (2) has not used the word 'competent authority' but only uses the word authority. Essentially, on 30.03.2015, the President has reconstituted Disciplinary Cases Committee till finalization of NBP Bangladesh Operations, having the Respondent No,9 as its Chairman who has not been found guilty of any offence as per available record. The committee has then investigated the Petitioner and its Chairman has dismissed him from service.
16. It is to be noted that the counsel of the Petitioner has also raised some question of facts to justify illegality of the order, which has been passed after detailed inquiry proceedings, which may only be checked/verified after seeing the merits of the case, upon which this Court does not have power under its constitutional jurisdiction, and the Petitioner has alternate remedy to approach the Board for his appeal or review application. Further, it is suffice to mention that it is incumbent upon party seeking constitutional remedy to show that such party had a clear legal right and that such right is so clear as not to admit of a reasonable doubt or controversy. The High Court will not go into disputed questions of fact in constitutional jurisdiction, and constitutional jurisdiction of High Court cannot, be converted into that of an appellate Court. Disputed questions, of fact cannot be entertained or allowed to be re-agitated in writ jurisdiction, when the relevant law provides other forums for the purpose. It follows that finding of fact recorded by Committee on appraisal of evidence cannot be disturbed in writ jurisdiction. In constitutional jurisdiction, the Court does not go into a question involving minute details nor can it decide facts of which no foundation is laid, unless it is shown that such controversy is devoid of supporting record or perverse.
17. However, the question of lack of jurisdiction for passing the Impugned Memorandum is concerned, it is to be noted that the President had constituted Disciplinary Committee to look into Bangladesh Operations, who was competent to give his recommendations to the President, without specifying provision of law and/or policy under which such committee was formed. There are some lapses on part of the Respondents Bank for taking such decision without mentioning the provision of law or rules, and the Respondents have argued that the penalty was imposed under 1973 Rules, rather than 2012 Policy. However, as it seems that the President may also form disciplinary committee under 1973 Rules and it is not specified under Rule 39(2) of 1973 Rules that only the 'competent authority' can announce the decision, rather the word ' authority.' has been used in Rule 39(2) of 1973 Rules. Furthermore, it has also not been specified in Rule 40 of the 1973 Rules that the appeal may only be instituted against the order passed under the ambit of 1973 Rules, rather it gives every aggrieved employee the right to file appeal/review.
18. In view of the above laws, judgments and arguments adduced by both the parties, this court is of the opinion that the Petitioner could not have invoked the constitutional jurisdiction of the High Court because there are certain questions involving the facts of the case which could only be considered by the appellate authority under Rule 40 of the 1973 Rules. Further, this Court is of the opinion that Petitioner cannot be re- instated in constitutional jurisdiction of this Court without dilating upon the question of facts involved in the case. The Respondents have although adopted a long and detailed procedure before dismissing the Petitioner, and their efforts for this purpose cannot go in vein under constitutional jurisdiction of this Court without considering the questions of facts.
19. Therefore, as per discussion above, this Court considers it inappropriate to adjudicate upon the merits of the instant matter and leave the same to be decided by competent statutory appellate forum. This writ is converted into appeal and is sent to the Competent Authority, being the Board of the Respondents Bank, for redressal of the grievances of the Petitioner in this matter, who shall decide the same under the applicable laws as discussed above preferably within eight (8) weeks.