JUDGMENTIRSHAD HASSAN KHAN, J.- This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. Seeks a declaration that the memorandum dated 11.10.1988 issued by the Assistant Vice President (Admns.), National Bank of Pakistan, whereby he rejected the appeal of the petitioner and upheld the order of punishment contained in the memorandum No.ADMN:DISCIP: F
40. Dated I2.Fi.19,SS, where by the petitioner was degraded to a lower stage of pay in his grade by three steps as without lawful authority and of no legal effect.
2. Briefly, the facts of the case are that the petitioner was posted as officer Grade-I with the National Bank of Pakistan. He was served with a charge sheet dated 1.10.1987 by the Senior Executive Vice President of the Bank for committing certain irregularities by him during his posting at Pattoke Branch and was required to show cause as to why penaIty/penaIties, as prescribed under Rule 37 of the National Bank of Pakistan (Staff) Sen ice Rules, 1980, should not be imposed on him. The allegation against him inter alia was that during summation balancing of PLS Saving Accounts Ledger No.9 as on 30.6.1986, a fraud of Rs.15,000.00 committed by Mr. Faqir Muhammad, Officer Grade-Ill (under suspension) came to light. Being an Accountant of the branch he had direct and personal responsibility to report to his Controlling Office this misappropriation committed at the branch in which he failed. Instead he indirectly helped and assisted the accused officer Mr.Faqir Muhammad in concealing and adjusting fraud by allowing the accounting of transfer vouchers for Rs.15,000.00 with retrospective date viz 12.5.1986 in two PLS Accounts No.l569-A and 1463 of Mr. Amir Ali Bajwa and Ch. Bashir Ahmed Respectively. The petitioner was also accused of making additions/aIterations in the PLS Saving Account No.1463 through deletions/cuttings and overwritings. He was required to submit his explanation within seven days of the receipt of the charge sheet. This period, therefore, expired on 8.10.1987. The petitioner failed to submit his explanation within time. In consequence, inquiry was ordered to be conducted against him vide memo No.ZOM.ENQ:/ 708 dated 7.11.1987 issued by the Assistant Vice President/Enquiry Officer. The petitioner was advised to appear before the inquiry officer on 23.11.1987 at National Bank of Pakistan, Pattoke, to defend himself against the charges conveyed to him and show cause notice dated 1.10.1987 already served upon him. The charges were repeated in the aforesaid letter and he was given another opportunity to sumbit his reply to the charge sheet before the inquiry proceedings were started. The petitioner alegedly submitted his reply on 18.11.1987, as per Annex 'B'.
The competent authority of the National Bank of Pakistan, after taking into consideration all aspects of the case, decided to degrade the petitioner to a lower stage of pay in his grade by three steps. He was also reprimanded to be careful in the discharge of his duties vide memorandum, No. ADMN: DISCIP: F:40, dated 12.6.1988 issued by the Assistant Vice President (Admin). The petitioner filed an appeal against the punishment imposed on him merely on the ground that it was very sever and unjustified. The punishment was sought to be withdrawn on the following grounds:-
1. It was merely clerical mistake not a fraud; 2 Bank had to bear no loss;
3. The concerned Account holder was satisfied with the transaction in his account and he never complained about any irregularity; and.
4. I am now about 50 years of age and also completed 25 years in Bank service and I am thinking for retirement in near future but at once the degradation of 3 steps from my present scale as punishment has shocked me because there is reasonable loss which will have to bear by me at present and after retirement.
3. The competent authority rejected the appeal on the ground that no new point was raised to merit reconsideration vide memo dated 11.10.1988 by the Vice President (Admin) of the National Bank of Pakistan. Hence this writ petition.
4. Ch.Riayasat Ali, learned counsel for the petitioner vehemently contended that the entire disciplinary proceedings, after the service of charge sheet have been conducted in wholly illegal, unlawful manner and in flagrant disregard of Rule 35 of the National Bank of Pakistan (Staff)
Service Rules, 1980. This being so, it is contended that the impugned order of punishment and the entire proceedings which have been culminated in the impugned order are wholly vide, mala fide and without jurisdiction. The learned counsel also contended that the inquiry Officer conducted the inquiry in an uqlawful manner, inasmu ch, as, the petitioner was not allowed to participate in the inquiry, but he was compelled to answer the questions, which the inquiry officer had already framed. Learned counsel contended that the petitioner was not afforded an opportunity of hearing during the inquiry proceedings. He was not supplied with a copy of the inquiry report and the impugned order of punishment was passed behind his back without affording an opportunity of final hearing to the petitioner and, therefore, it was violative of the principles of natural justice and on that score, as well, it is liable to be set aside. In support of this contention, reliance is placed on unreported judgement of this Court in Manzoor Hussain v. National Bank of Pakistan (C.R.NO.439 of 1977, decided on 21.2.1982). In the precedent case, it was inter alia observed that the bank has a statutory obligation to act upon the procedure it has introduced in this behalf. It was further held that "it is established law that if charges levelled against persons which raise questions of fact and these are challenged by the person concerned it becomes the bounden duty of the authority levelling the charges to hold an inquiry into them after giving a fair opportunity to the person complained against to offer his defence, if he is so advised". In the precedent case, a finding was recorded that the petitioner in that case was not heard, nor was he given a opportunity to defend himself and, therefore, in the absence of such a hearing, he could not have been condemned.
5. Having given my anxious consideration to the submissions made by learned counsel for the petitioner and after perusing the material on the record, I am inclined to hold that there is no cavil with the proposition advanced by learned counsel for the petitioner that the National Bank of Pakistan was bound to act in accordance with the procedure it has laid down in the Services Rules regarding disciplinary action that may be taken against its employees. If in a given case, the employee is not afforded an opportunity to defend himself, the absence may be fatal depending upon the facts and circumstances of each case. In the istant case, however, the pleas now raised by learned counsel for the petitioner were never raised by him in the memorandum of appeal. The petitioner merely challenged the severity of the punishment and not the findings of the inquiry officer. The question of quantum of punishment is a matter to be determined by the employer and this Court, in the exercise of its consitutional jurisdiction cannot sit in appeal over the judgement delivered by a domestic Tribunal like the appellate authority of the National Bank of Pakistan. In any event, whether the petitioner was given a fair opportunity of hearing during inquiry proceedings, is essentially a disputed question of fact which cannot be allowed to be agitated in these proceedings.
In view of the above, the write petition fails and is hereby dismissed in limine.