SLEEM AKHTAR, J.--The petitioner was employed as staff officer by the respondents with effect from 1-9-1964. On 1.1.1977 he was promoted as Vice president and performed his duties diligently honestly, and earned commondatory letters from the respondents. The petitioner was transferred to Inspection Division where he performed his duties to the satisfaction of his superiors. He was orderd to proceed for the audit of treasury branches outside Karachi. Accordingly, he conducted audit of for baranches of the respondents at Sukur, Shikarpur, Jacobabad and Hyderebad. The petitioner submitted paid bill for Rs.2,100/- for his stay from 7.1.1979 to 5.2.1979 in Hotel Mehran, Sukur and receipt dated 7.3.1969 for his stay in the said hotel from 13.2.1979 to 6.3.1979. In connection with the duty at Larkana branch, the petitioner stayed from 27.3.1979 to 16.4.1979 in Sambara Inn, Larkana which is managed by PLA Itd. Karachi and paid Rs.2,999/-under bill No. 0549 which was submitted to the respondents for payment. Besides the bills for stay in the hotel, the petitioner was paid a sum of Rs.4, 927.50 according to his entitlement, under the Rules and Regulations.
2. On 20-12-1979 the petitioner was suspended by a memorandum issued by the Executive Vice- President of the respondents.
Thereafter the petitioner was served with the notice of imposition of penaIty/charge sheet dated 27-1-1980 which was issued by the respondent's Executive Vice President. The petitioner was charged of submitting false fabricated and excessive bills for his alleged stay in the hotels, and was required to submit his reply. The petitioner made an application dated 5.2.1980 to the respondents requesting them to supply a photo copy of the alleged bill of Hotel Shalimar, Larkana which was supplied by the respondent's letter dated 26.3. 1980. The petitioner alleges that this bill was never submitted by him. He submitted his explanation dated 11.2.1980 denying all the charges levelled against him. Thereafter, the petitioner received memo dated 8-6-1980 from the Senior Vice-President of the respondents informing him that he was deputed to investigate the case against him and that he will hold inquiry in his chamber on 14.6.1980 ai " j.00 A.M. The petitioner was asked to attend the said inquiry. The petitioner attended the inquiry and continued to attend till its conclusion. The petitioner produced documentary evidence which included photo copy of the bill No.0549 Sambara Inn Larkana, Certificate dated 30-1-1980 issued by the Manager PIA Hotels ITD, Airport Larkana Certifying that the petitioner had stayed in Sambara Inn Hotel with his team from 27.3.1979 to 16.4.1979 and confirmed that the bill for Rs.2990/- was issued and paid. A certificate from Manager Hotel Mahran Sukur dated 6.2.1980 was produced certifying that on the basis of scrutiny of this records the petitioner had stayed in the hotel from 7.1.1979 to 5.2.1979 and from 13.2.1979 to 6.3.1979. It was further stated that previous statement issued on 29-10-1979 may be treated as cancelled as the records were not properly checked at that time. The petitioner also made oral statement and at the conclusion of inquiry submitted his final statement. The petitioner submitted an application on 6- 11-1980 to the president of the respondents requesting him to take into consideration the documentary evidence produced by him as it was part of the departmental proceedings before the Inquiry officer. It was stated that the Inquiry Officer by his Conduct has given an impression that he L not going to believe or rely on this documentary evidence. He also requested that the bills may be verified. On 20.11.1980 the petitioner was served with a letter signed by Senior Vice President Whereby the petitioner was retired from service in terms of Rule 37 (f) read with Rule 39 of National Bank Staff Service Rules 1980 with immediate effect besides recovery of Rs.3,917.50 allegedly drawn by the petitioner against his T.A. Bill.
3. By his application dated 23-11-1980 the petitioner requested that he may be supplied copy of the Inquiry Officer's report and finding to enable him to file an appeal but the same were not supplied.
However, the petitioner filed his appeal dated 6.12.1980. By letter dated 20-12-1980 Senior Vice President of the resopndent informed that the copy of the inquiry report could not be provided as it was confidential document of the bank. As no order was passed on appeal, the petitioner submitted a reminder dated 29.3.1981 followed by another reminder dated 31.3.1981. As the appeal remained undecided the petitioner filed this petition on 20-5-1981 challenging the order of the respondents.
4. The respondents filed their counter affidavit in which it has been stated that the petitioner has been suspended by the president of the respondent bank, and the order was conveyed to the petitioner vide memo dated 29-9-1979 issued by the Executive Vice President of the respondent.
The suspension was as a sequence to inquiry in the matter. Thereafter charge-sheet dated 27-1- 1981 was served on the petitioner, and it is denied that the petitioner requested for photo copy of the bill of Shalimar Hotel,Larkana. The petitioner was, however, supplied a copy of the bill of Shalimar Hotel Larkana original of which had been submitted by the petitioner. Mr. S. Irtiza Naqvi was appointed under the Staff Service Rule to investigate into the matter. The petitioner was afforded and he availed every opportunity of corss-examining the witnesses of the respondents and also submitted his own evidence. The petitioner did not object to the suspension order, the appointment or conduct of Inquiry Officer, It was denied that the Inquiry Officer had by his conduct given an impression that he would give no credence to the documentary evidence produced by the petitioner. No objection was raised to the conduct of the Inquiry Officer or to his impartiality. The order of retirement was passed by the Executive Board of the respondents which is the competent authority in the matter and it was conveyed by the Executive-Vice President. It was pleaded that there is on provision for providing copy of the Inquiry Officer's report and therefore, the same was not supplied to the petitioner. The petitioner also filed an appeal against the order of retirement which was dismissed on 12.4.1981 and was conveyed to the petitioner by letter dated 20-5-1981. It was stated that 1973 Rules were approved by the Central Government and 1980 Rules are merely revision by way of amendment, deletion or addition which was already approved and for such amendment, deletion or addition on approval is required under the be-laws, In any event the punishment provided in the 1980 Rules are nothing new and are the same as in 1973 Rules. The Inquiry was conducted under the Revised Rules Published in 1980. Under the agreement the petitioner was bound by the Rules subject to any change thereafter duly made therein. It has been pleaded that the petitioner is estopped from challenging the notice or the charge-sheet, the appointment of Inquiry Officer and the order passed by the Authorities. The petitioner had paritcipated in the Inquiry and cross-examined fully all the witnesses produced against the petitioner. The Inquiry Officer was not biased. Personal hearing was given to the petitioner who had participated in the inquiry and principles of natural justice have not been violated. The petitioner has not filed any rejoinder to the counter affidavit filed by the respondents.
5. Mr. Manzoor Ali Khan the learned counsel for the petitioner has contended that the inquiry procedings were conducted under the 1973 Rules, but the order was passed under 1980 Rules which were not applicable nor it was approved by the Government. The undisputed position is that when the petitioner was charge-sheeted and suspended from service 1973 Service Rules were applicable. 1980 Rules were promulgated on 26.3.1980 and therefore, the Inquiry Officer as stated by the respondents conducted the inquiry according to 1980 Rules.The stand taken by the respondents in the counter affidavit is that 1980 Rules were merely amendments, additions, and deletion in 1973 Rules, and therefore, prior approval of the Central Government was not necessary.
During argument Mr. Mansoorul Arfin has contended that in view of section 11 sub section 4 of Banks (Nationalisation) Act 1974, the restriction under the be-laws of the respondents to obtain prior approval of the Federal Government of Rules framed by the Board no longer exists. Section 11 (4) reads as follows:- (4)" In the exercise of their powers the Executive Board and the President of a bank incorporated by or under any special law shall not be subject to restrictions which do not apply to the Executive Board or the President of a bank registered under the Companies Act, 1913 (VII of 1913."
6. The learned counsel for the respondents contended that in view of this provivion the respondents were not required to obtain any prior approval of the Federal Government as the Banks who are registered under the Companies Act are not required to do so. The Bye-laws of other such banks have not been produced on the basis of wnich we can hold that there is on such restriction on other banks. This stand taken by the respondents is different from the one taken in the counter affidavit. Rules of 1980 have been produced by the respondents which are entitled as follows: "These Rules may be called the National Bank of Pakistan Service Rules 1980. It was to take effect from 1st January, 1980".
After perusing these rules we are unable to hold that they were only amendments, and aIterations as stated by the respondents. They were framed by the Executive Board under Bye-law 18(a) (iii)
(iv) of National Bank of Pakistan Bye-laws read with section 11 (4) of the Banks (Nationalisation) Act 1974. In fact these Rules have superseded the Rule of 1973. The petitioner would be aggrieved by the application of Rules of 1980 if his vested right is infringed to the procedure for inquiry and punishment provided by it are prejudicial to the interest of the petitioner as compared to Rules of 1973.
7. A perusal of both the Rules will show that the procedure for inquiry and the punishment are materially the same. There is no material difference in these provisions which prejudicially affects any vested right or interest of the petitioner, The petitioner also did not take object to the applicability of Rules of 1980 at the time when the charge-sheet was served and inquiry was conducted. In our view as the new Rules do not in any manner prejudice the petitioner's vested right nor do they enforce any procedure to the dis-advantage of the petitioner and as no objection was raised by the petitioner at any stage before filing this petition, now merely on the basis of change of Rule, it cannot be held that the entire proceedings have vitiated.
The next contention of the learned counsel for the petitioner is that charge-sheet had not been issued by a competent authority. As stated earlier the charge-sheet was signed by the Executive Vice president. According to the petitioner which is not denied by the respondents, it should have been issued by the president or the Managing Director of the Bank. The respondents have contended that in fact the Executive Vice president had conveyed the order of suspensions and charge-sheet which was actually passed and issued by the president or the Managing Director who was Competent Authority. Both these documents i.e. Suspension order and the charge-sheet do not indicate that the Executive Vice President had conveyed the order passed by some other authority. However, this fact should not detain us as the petitioner did not raise this objection before the Inquiry Officer. The appointment of the Inquiry Officer and the proceding taken by him were not challenged on this ground at proper and appropriate stage earlier. Having submitted to the jurisdiction of the Inquiry Officer, the petitioner produced evidence and cross-examined the witnesses of the other side. Now it is too late in the day to challenge these proceedings after the order of retirement has been passed by the competent authority. The well recognised principle is that if there is a breach of rule or omission in the conduct of inquiry but it has not materially prejudiced the defence of the accused employee, then such irregularity and omission will not nulify the order passed against him.In this regard reference can be made to the following observation in Mir Mohammad Vs. N.W.F.P. Government. PLD 1981 S.C.176: "It seems to us that the rule enunciated by SA., de Smith, in the passage quoted above, is the correct rule to follow in cases of disciplinary inquiries; namely, that if an commission, defect or irregularity in the conduct of the inquiry has not caused material prejudice to the accused official in the matter of his defence, then such an irregularity, commission or defect would not, by itself, vitiate the action taken against him."
In the present case the additional fact which supports the above view is that the petitioner did not raise any objection till final order was passed. There is no dispute that the order of retirment which is a punishment under the Rules was passed by the Executive Board which was the competent authority to pass such order.
8. The learned counsel has referred to Pakistan through General Manager PWR Lahore VsA.V. Azhar PLD 1970 S.C. 415 and contended that right of party to a suit must be adjudicated on the basis of the law prevailing at the date of institution of the suit. The learned counsel also contended that under Article 4 of the Constitution the petitioner has a right to be deIt with according to law. As discussed above mere change of rules which have not adversely affected the petitioner's rights and as no objection was taken at the proper time, the petitioner's contention is not tenable. The petitioner has not been able to establish how in the facts and circumstances of the case the judgments cited above are applicable to his case. Even if there was any irregularity in procedure with regard to issuing of the charge-sheet the same cannot be challenged now as discussed above.
The Learned counsel has referred to Syed Mir Mohammad Vs. NWFP through Chief Secretary PLD 1981 SC 176 where the following observation was made:- "It seems to us, therefore, that on a proper construction of rules 5 and 6 read together, it is a statutory requirement that if a formal inquiry is held, then the authorised officer should, after he has tenatively decided upon the action he proposes to recommend to the Authority, give an opportunity to the accused Officer to offer his explanation against the proposed action in the light of the findings of the Inquiry Officer or Inquiry Committee, before sending his recommendations to the Authority, This would, of course, necessitate that a copy of the enquiry report be furinshed to the accused Officer at this stage, and he should be apprised of the action proposed against him."
9. The learned counsel for the petitioner has heavily relied upon this observation for the plea that as no second show cause notice was served on the petitioner nor a copy of inquiry report was supplied to him, the order of retirement is bad in law. This observation was made while interpreting Rules 5 and 6 of the NWFP Govt. Servants (Efficiency & Discipline) Rules 1973. The rule which was applied to the petitioner as materially different from Rules 5 and 6 referred above. The dictum of the Hon''be Supreme Court is with reference to particular Rules and not a general principle governing all cases where Rules are different. Mr. Arfin has referred to Dawood Cotton Mills Vs. Mukhtar Shah & others PLD 1981 S.C. 225 where following observations were made:- "In Punjab Road Transport Corporation V. Punjab Labour Appellate Tribunal, Lahore and others (1), the Lahore High Court had interfered with the order of the Punjab Labour Appellate Tribunal as the report contained extraneous matters which were not relatable to the charges levelled against him in regard to which he had submitted his explanation and which greatly influenced the Enquiry Officer to recommend the dismissal of workman;and as the second show-cause notice, which formed part of the conditions of the workers of the Road Transport Corporation, was not given to the delinquent workman, the case was held to have been prejudiced as he had on opportunity to rebut the allegations. It was in these Circumstances that this Court, while dismissing the petition for special leave to appeal, held that the workman should have been furnished with the copy of the enquiry report and also the second show-cause notice as this was consistent with the rules of natural Justice. This observation must be understood in the context of the peculiar fact of that case and does not lay down the broad principle that they form part of the rules of natural justice or for that matter to be spelled out from the provision under consideration."
10. It can, therefore, be seen that the issuance of a second show cause notice cannot be termed as a necessary requirement of the observance of principles of natural justice and in a case where full opportunity has been afforded to a party to participate in proceedings, produce the witnesses and cross-examine the witnesses of the other side, it is not necessary that a copy of the Inquiry report unless specifically required by the rules, may be supplied to the accused party so that he may make a further representation to the competent authority to whom the inquiry report is submitted for passing final order. In the present case the Rules do not require issuance of a second show- cause notice or supplying a copy of the second show-cause notice or supplying a copy of the inquiry report. These alleged failure can not vitiate the proceedings.
The petitioner relied on NLR 1985 Service 37 in which it was held that if there was a violation of statutory Rules then such order will be set aside in exercise of writ jurisdiction and that as held in PLD 1970 Lah. 811 the breach of statutory rules amounts to violation of principles of natural justice. In the pressent case no such breach of rules has been alleged except Rules of 1980 were applied instead of 1973 Rules which were in-force when charge-sheet had been issued. No one has a vested right in a procedure but this does not mean that any procedure which is arbitrary or violative of the principles of natural justice cannot be challenged. As discussed above having paritcipated in the proceding without any objection the petitioner is not entitled to challenge the proceedings and procedure at this late stage on the ground of non application of Rules of 1973.
11. In the petition the petitioner has prayed that declaration may be granted that the departmental Proceedings including the inquiry are void ab-initio and the impugnd order dated 20-11-1980 is illegal, void and of on legal effect and the respondent be directed to treat the petitioner in service of the respondents from the date when he was suspended. The petitioner was due to retire in the normal course in the year 1982, but by way of punishment he was compulsorily retired in 1981. The petitioner filed an appeal against that order which was dismissed, and such order was conveyed to him on 20-5-1981 few days after the petition had been filed. On our query the learned counsel for the petitioner stated that he did not think it necessary to challenge the order of the Executive Board passed in appeal as the appellate order had merged in the original order. In fact and in law once an appellate order is passed the original order is merged with the appellate order. It was therefore, necessary that the order passed in appeal should have been challenged which could have been done by way of simple amendment in the petition, but the petitioner did not think it proper and even after a lapse of seven years no step has been taken to amend the petition. Even if the petition is allowed, and the declaration as sought by the petitioner is granted, the appellate order shall hold the field and therefore, the order passed by the Court will remain in-operative and infructuous. In view of the aforesaid facts and reasons we dismiss the petition with no order as to costs.
Appellate order is passed the original order is merged with the appellate order. It was therefore, necessary that the order passed in appeal should have been challenged which could have been done by way of simple amendment in the petition, but the petitioner did not think it proper and even after a lapse of seven years no step has been taken to amend the petition. Even if the petition is allowed, and the declaration as sought by the petitioner is granted, the appellate order shall hold the field and therefore, the order passed by the Court will remain in-operative and infructuous. In view of the aforesaid facts and reasons we dismiss the petition with no order as to costs.