1. The applicant was employed as Assistant Accountant in the respondent bank. He claims himself to be a workman and was therefore covered by the provisions of Standing Orders Ordinance, 1968. On 23-1-1978 the applicant was served with a charge-sheet containing series of allegations of misappropriation, negligence etc. It was duly replied on 17-2-1978. Before finalization of any action of this charge sheet, the applicant was proceeded under sections 409, 468, 471 and 477-A PPC read with section 5(2) of P.C. Act 1947, by Summary Military Court , Badin. He was then convicted by the said Court and was sentenced to suffer R.I. For 12 months on 10-5-1979 and also to pay a fine of Rs.21,400. This decision of the Military Court was appealed and so his conviction was set aside by orders dated 8-2-1982. While the applicant was still in jail, the respondent bank dismissed him on 19-8-1979 without any reason or enquiry whatsoever. In fact, according to applicant, this dismissal order was the result of his conviction as referred to above. After the setting aside of his conviction, he submitted a departmental appeal on 15-3-1982 which was followed by reminders dated 30-3-1982 and 17-4-1982 but the same was never replied or decided by the respondent. Accordingly, he sent a grievance notice dated 17-5- 1982 and then he filed the present petition on 13-6-1982 for his reinstatement with consequential benefits.
2. The respondent in its reply statement, in nutshell pleaded that the applicant committed serious fraud and misappropriation while acting as Manager Talhar Branch and so after service of charge sheet and holding enquiry into the allegations, he was lawfully removed from service. The applicant was tried by the Martial Law Court and first he was convicted and thereafter he was acquitted but, according to the respondent, the proceedings before Martial Law had nothing to do with the departmental proceedings against him.
3. The maintainability of this petition has been assailed mainly on the ground that the applicant was performing managerial and supervisory duties in different capacities and had never performed any manual or clerical duties and so he does not come within the category of a workman as defined under the S.O. Ordinance 1968. Moreover, this petition is also hopelessly time-barred.
4. At the very outset I would record here that Mr. Abbasi has fairly conceded that no enquiry as required by law has been conducted in this case. The Enquiry Officer has neither recorded the statement of any witnesses nor examined the applicant. In view of this statement of Mr. Abbasi and the fact that the enquiry if any having not been conducted in the manner it is legally required and further that the applicant was also never afforded any opportunity to defend himself, on merits I am of the considered view that the impugned order of dismissal would not be tenable and warranted by law. This being the position, the evidence of the expert as also the various documents brought on record to prove the embezzlement etc. Could not be examined or discussed nor the evidence of the witnesses examined on behalf of the respondent in regard to the charges can be scrutinized.
5. The fate of this case mainly hinges on the legal proposition specifically canvassed before me by Mr. Abbasi and, according to him, this petition is not maintainable in law. His first submission in this behalf is that the applicant is not a workman inasmuch as he was performing supervisory and managerial functions throughout. To substantiate his this plea, he has taken me through the evidence of the witnesses as also the material on record. He has also referred to 1980 PLC 38 to the effect that a Branch Manager does not come within the category of a workman.
6. The written statement in this case was filed on perhaps 4-8-1982 and the applicant was cross- examined on 16-12-1982. He had also closed his side on that date. Thereafter, the point now urged in regard to the status of the applicant was considered by my learned predecessor quite in detail and after examining the entire material on record including the evidence of M/s. Ghulam Nabi, Abdul Shakoor, Nabi Bux and Rashid Ahmed. He had come to a definite conclusion that in view of the evidence of both the sides the applicant was doing "pre-dominently clerical work in the Talhar Branch where his duty of supervision may be incidental". Finally, he held the applicant a workman under the Standing Order Ordinance. This finding has nowhere been assailed on behalf of the respondent nor it has been reversed or set-aside in any manner by the Superior Courts.
7. Accordingly this point of status cannot be re-agitated at this stage. It is accordingly repelled.
8. The second point canvassed before me on behalf of the respondent is that this petition is time- barred. According to Mr. Hidayatullah, the impugned order of dismissal was passed on 19-8-1979 whereas the grievance notice was sent by him on 17-5-1982 i.e. After nearly 3 years of the accrual of the cause of action. He also submitted that the dismissal was not the result of the conviction of the applicant and so it cannot be pleaded by the applicant that he could not assail his dismissal till his conviction was set-aside. His further submission is that there is nothing on record to show that the appeal submitted by the applicant against his conviction was an impediment in his way and so he cannot take benefit of the setting aside of his conviction. Lastly, he submits that he has not prayed for any condonation of delay and so this petition is liable to be dismissed on this score alone. Mr. Bashir's submission in this behalf however is that according to the settled law a convicted person cannot be reinstated in service and so till such time his conviction was set aside, he was not legally permitted to pray for setting aside of the dismissal order and for his reinstatement. This prayer was however legally advanced by him as soon as his conviction was set-aside and such fact was intimated to him. Accordingly, the petition is well within time. He submits that admittedly the dismissal of the applicant as also his conviction by the Military Court was on one and the same charge. Lastly, he submits that, in any case, this plea was also raised by the respondent at the time of questioning the status and since the petition of the applicant was held to be maintainable, the legal inference which can be made now is that either the point of limitation was rejected or the respondent itself gave up the said point. Accordingly, it cannot be re- agitated here. Mr. Hidayatullah has placed reliance on 1981 PLC 905, 1982 PLC 371, in support of his submissions while Mr. Bashir has relied upon 1986 SCMR 962 and 1982 SCMR 1047.
9. It is an admitted fact that when the impugned dismissal order was passed the applicant was undergoing his sentence awarded to him by the Military Court and he was therefore a convicted person. In 1982 SCMR 1047, it has been observed that a convicted person would not be entitled to reinstatement in service unless his conviction is set aside. In this view of the matter, the applicant was neither expected nor was legally obliged to question his dismissal during the continuance of his conviction and sentence. This conviction and sentence was set-aside by the DMLA, Hyderabad, in February 1982, as is evident from A/6 & A/7.
10. This decision was conveyed to the respondent as well as the applicant by letter dated 8-2-1982 A/6. It has been pleaded that despite this intimation the applicant was not reinstated and a "no objection" was said to have been required by the bank. Accordingly, the respondent was intimated about "no objection" of the Military Authorities by letter dated 9-3-1982 A/7. The submissions of Mr. Hidayatullah that the conviction was not appealed against by the applicant is misconceived because if the appeal had not been preferred by the applicant the conviction could not have been set aside. Moreover, it is irrelevant whether the applicant preferred any appeal or not. What I have to see here is when cause of action actually accrued to the applicant and whether the order dated 8-2-1982 whereby the conviction of the applicant was set aside created a vested right in the applicant.
11. As stated above, the applicant was removed from service when he was suffering the sentence awarded to him and since the conviction by the Martial Law Court was on the same charge on which the applicant was removed by the bank, in view of the dictum of the Supreme Court referred to above, he could not approach the bank for his reinstatement. Accordingly, he had to wait till his conviction was actually set aside and was communicated to him by letter dated 10-2-1982. This order of the Martial Law Authorities not only created a vested right in him for his reinstatement but also gave a course of action to agitate against the impugned action of the respondent.
12. Accordingly it cannot be urged on behalf of the bank that the applicant was legally obliged to agitate his grievance soon after hi8 removal in the year 1979 and that he should not have waited for the decision against his conviction, nor it can be pleaded that the applicant could not prove submission of any appeal against his conviction. The submission of Mr. Hidayatullah in this behalf are thus wholly mis--conceived and are accordingly repelled.
13. I would now examine whether the present petition is still within time. According to the material on record as also the averments made by the applicant in his grievance notice and grievance petition etc. His conviction was set aside on 8-2-1982. He accordingly made a representation for his reinstatement but with no result. According to him, the bank is said to have asked for a "no objection" from the Martial Law Authorities and the same was conveyed to the bank on 9-3-1982.
14. He however could not produce any material in this court to show that the bank ever desired any "no objection" and it appears that the applicant himself approached the Martial Law Authorities for recording such "no objection" therefore such certificate has no legal sanctity nor it would extend the limitation. It is also the plea of the applicant that he had preferred an appeal and since he did not receive any reply; he served the grievance notice on 17-5-1982 and so this petition is well within time. I am afraid, this submission oil the applicant is untenable. As pointed out above, the conviction was set aside on 8-2-1982 and the cause of action had actually accrued to the applicant on that date. The applicant could not show me any material to the effect that the appeal was mandatory before the department. If, for the sake of arguments, the appeal was to be preferred before approaching this court, it should have been correctly addressed and that he should have waited for the decision thereof or at least for a reasonable period. If appeal was not mandatory the time taken by him in preferring appeal cannot be excluded for computing the limitation. The cause of action had accrued on 8-2-1982 and the grievance notice was sent on 17- 5-1982, i.e., after 3 months, and so it was time-barred. Accordingly, this petition itself is also barred by limitation and so it is to be dismissed on this score alone.
15. Mr. Bashir, learned counsel for the applicant, submits that if the Rules of 1973 are held to be statutory, still the impugned removal is in violation of the same because the applicant has been dismissed without any enquiry and without proving the charges against him. I have given my anxious consideration to this legal proposition as well and I feel that the submission of Mr. Abbasi must prevail. It has repeatedly been held by all Courts that the respondent had its statutory rules of service upto 1980 and its employees were being regulated by the same. Accordingly, the provisions of S.O. Ordinance were not applicable during the operation of those statutory rules of 1973. The applicant has neither pleaded anywhere that the impugned action had violated any mandatory provision of the said statutory rules of 1973 or that he was deprived of any guaranteed or secured right. In the absence of any such specific plea and also in the absence of any evidence or material on record, even if the applicant is to be held a workman under the Labour Laws, he cannot maintain this petition in this court.
16. It has also been urged by Mr. Abbasi that this court has no jurisdiction to entertain this petition because at the time when the applicant was proceeded against and when the impugned action was taken, the respondent was having its statutory rules of service framed in the year 1973. In view of these statutory rules, the provisions of Standing Orders Ordinance would not be applicable to the employees of the Bank and so the impugned action cannot be assailed in this court. His further submission is that the applicant has nowhere shown the violation of any guaranteed right and so he cannot maintain this petition.
17. A.E./919/Lb.S.