SYED ARSHAD ALI, J. The petitioner, through the instant constitutional petition, have approached this court paying that: - "It is, therefore, requested that on acceptance of this Writ Petition the impugned judgment of Respondents No. $ & 5 i.e. Single Bench and Full Bench of NIRC dated 20.08.2020 and 17.11.2021 as well as the impugned Orders dated 31.05.2016 and 01.03.2016 issued by the Bank, respectively, be set aside and petitioner may please be reinstated in the Service of the Respondents Bank with all back wages and consequential benefits, with such other relief as may deem fit in the circumstances of the case may also be granted".
2. Arguments heard and record perused.
3. It is evident from record that Muhammad Fayaz the petitioner was working with Zari Taraqiati Bank Ltd. ("ZTBL") as Senior Assistant and at the relevant time was posted as Teller in Sarai Naurang Branch Tehsil and District Lakki Marwat. On 11.07.2014, he received a charge sheet along with the statement of allegations containing the following 02 indiscipline/allegations from the Disciplinary Proceeding Department ("DPD") of the respondent/Bank seeking his reply to the inquiry committee within a period of ten days which is reproduced as under; i. You while posted as Teller in the branch made payment, loan amounting to Rs.198, 000/- in Loan Case No.119015 on 24.11.2011 but on spot visit the borrower categorically denied the availment of any kind of such loan as per his written statement which showed that the loan has been jeopardized/mis-appropriated by you. So you failed to follow the instructions in letter in spirit contains vide para No.2.72 of the existing Account Operation Manual. Similar is position in loan cases as per annexure-1. ii. Making payment in absentia of the borrowers in loan cases also observed by internal Audit in the Audit Report ended for the year 30.06.2011 vide Para No.6. So you failed to follow the instructions in letter in spirit contains vide para No.2.72 of the existing Account Operation Manual.
4. The petitioner while replying to the said allegations; has stated the he remained posted in ZTBL, Sarai Nourang Branch, Tehsil and District Lakki Marwat since 2011 as Teller and the then Manager, MCO and AM Operation of the Branch had made scrutiny of the loan cases of the concerned loanee and thus the matter was referred to him for making payment. Regarding the documents, he explained that it was a general practice in the Bank that the loan documents would be filled after the payment of loan amount to the borrower, however, he was responsible to make entries in the daily cash scroll. Most of the cash payments of the loan cases were handed over to the Manager, MCO or Assistant Manager Operation as per advise of the Branch Manager, however, the responsibility to verify the genuineness of the loan documents were on the shoulders of the Branch Manager etc. He negated the allegations of direct payment to the loanee and stated that the loan amount was handed over to MCO and Manager in his cabin for onward payment to the loanee.
5. The inquiry committee comprised of three officers keeping in view the reply of the respondents without even considering the available documents; have found the present petitioner to have violated the Bank instructions as mentioned in Para No.2.72 of account of operation manual and made the following recommendations: - "Recommendations.
Keeping in view the serious nature of irregularities, fraudulent transactions in processing of loan cases involving an amount of Rs.33.473 million involved in various charges which were proved, he is recommended to be dismissed from the bank services. However prior to this and in order to ensure the recovery of bank's funds, it is recommended that criminal proceedings may be initiated through NAB or any other appropriate Law Enforcement Agency."
6. The DPD on the basis of the said inquiry report has issued present petitioner a final show-cause notice on 19.03.2015 asking his reply that why a major penalty should not be imposed upon him. The show-cause notice was replied by the present petitioner, however, DPD did not agree with the explanation offered by the present petitioner and thus imposed a major penalty of dismissal from bank service upon the present petitioner with the recovery of his share amount of Rs.1.8252 million in the alleged misappropriate amount along with the mark up.
7. This order was appealed by the present petitioner before the President of ZTBL on 10.03.2016. The said appeal was dismissed vide order dated 31.05.2016. Needless to mention that the present petitioner has also been charged in a criminal case through FIR No.3 of 2015 by the FIA.
8. The impugned penalty imposed upon the petitioner by the respondent/Bank was challenged before the National Industrial Relation Commission ("NIRC") through a petition under Section 33 of Industrial Relation Act, 2012. The said petition was contested by the respondent/Bank by filing a written reply and accordingly parties were directed to produce their respective evidence. The petitioner recorded the statement of Farooq Badshah, AVP, Bannu who produced the relevant documents before the learned Single Bench of NIRC whereas; the petitioner himself appeared before the Bench as PW-2 and recorded his statement. The respondent/Bank did not opt to cross examine the said witnesses. The learned Single Bench of NIRC after hearing the parties through impugned order dated 20.08.2020 dismissed the petition of the present petitioner being influenced by a proceeding then pending before the National Accountability Bureau on the same matter. This order was also affirmed by the learned Full Bench of NIRC vide impugned order dated 27.11.2021.
9. The perusal of the entire record would show that the petitioner was charged with two allegations as stated above. The essential allegation against the petitioner was that the loan amounting to Rs.198,000/- was paid to a loanee by the petitioner being Teller in the relevant Branch of the Bank on the basis of forged documents and later the said loanee had denied receipt of any loan amount from the bank. The loan case was referred as 119015 dated 04.11.2011. The inquiry report is completely silent about the essential facts that who had sanctioned the said loan, the instrument through which the said loan was disbursed and who was the loanee in the case. Though it is alleged by the respondent that the loanee has denied to have received any loan, however, in this regard no evidence is available on record that on whose presence the loanee has denied the receipt of the loan. The precise allegation against the present petitioner is in respect of an amount of Rs.198,0001- which was swindled by him whereas; the recommendation of the inquiry committee would show that the present petitioner is involved in the corruption of loan cases involving an amount of Rs.33.973 million. The petitioner was neither confronted with the said allegations through a show- cause notice nor any documentary or other evidence was produced before the inquiry committee as the inquiry report is completely silent about the same. It is also not forthcoming from record that the inquiry committee has recorded statement of any officials of the Bank in this regard. Similarly, in the impugned order of his dismissal from service, it is mentioned that the petitioner is responsible to make payment of Rs.1.852 million to the Bank which is his share in misappropriated amount, however, in the charge sheet he was only confronted to be involved in misappropriation of an amount of Rs.198,000/-. The inquiry report, charge sheet, show-cause notice and the order of dismissal of petitioner lack coherence on the quantum of alleged swindled amount. The report is based on no evidence and is the mere guess work of the inquiry committee.
Even the respondent/Bank has not bothered to produce any evidence in this regard before the Worthy Member of NIRC and has opted not to cross examine the witnesses produced by the present petitioner albeit has failed to produce any evidence in support of allegations against the present petitioner.
10. By now the law is settled that it is the requirement of natural justice that in any inquiry proceedings against a civil servant or an employee of public sector organisation when there are serious allegations of corruption misconduct, not only the prosecution has to bring home all the charges but the accused officer should be given a fair opportunity to defend himself. He should specifically know what are the allegations against him. The court or tribunal seized of a matter where the employee has lodged his grievance against major penalty empowered by employer is required to satisfy itself that the allegation against the employee are not only established through confidence inspiring evidence but the employee has been given fair opportunity to defend himself.
Mere guesswo rk, surmise and conjunction of the employer regarding the alleged misconduct of an employee should not be upheld in absence of cogent evidence. "G. Asghar Malik v. Federation of Pakistan and others (2002 SCMR 433), Muhammad lkram v. District Education Officer (Female), Peshawar and others (1988 PLC (C.S.) 50), Shakeel Ahmad v. Commandant 502 Central Workshop E.M.E., Rawalpindi and another (1998 SCMR 1970), Fasahat Ali Khan v. Government of Sindh through Chief Secretary and 2 others (1989 PLC (C.S.) 318)".
11. In the present case we are of the considered opinion that not only statement of allegations issued to the present petitioner is defective as it does not specifically mention and refers to particular documents according to which the petitioner has misappropriate certain amount but the inquiry proceedings were not conducted in a fair manner and the order of dismissal of service of the present petitioner is all together based on alien consideration, therefore, the said proceedings albeit the impugned order of the dismissal of the present petitioner is not sustainable in the eyes of law.
Both the Single Member of NIRC and the Full Bench of NIRC has failed to notice this glare irregularity rather the said two fora were illegally persuaded by some inquiry proceedings being conducted by the NAB authorities in the matter. Needless to mention that a criminal investigation has no baring upon the disciplinary proceedings being both initiated against one and the same accused officer/employee. Both the proceedings can run together having no effect on each other.
12. Resultantly this petition is admitted and allowed. The impugned order of the dismissal of the Petitioner dated 01.03.2016 is set aside and thus the present petitioner would be reinstated to serve, however, the department would be at liberty to initiate a fresh inquiry against the petitioner and the matter of hack benefits of the petitioner shall also be considered by the department/Bank after the conclusion of any such inquiry to be conducted by the respondent/Bank against the present petitioner. As a corollary of above, the impugned orders of the NIRC dated 20.08.2020 and 27.11.2021 are accordingly set aside.
13. Disposed of in the above terms.