JUDGMENTFAZL-I-MAHMOOD, J. This Constitutional petition has been filed by the petitioner who was an Officer serving in the National Bank of Pakistan, for his illegal removal from service while he was posted as Senior Head Cashier at the Circular Road, Branch Lahore of the said Bank.
2. To be precise the relevant facts are that on 4.9.1983, the petitioner received a charge sheet issued by respondent No.4. Earlier to that the petitioner had been suspended from service on 23.2.1983 in view of the pending enquiry. The petitioner sent reply to the charge sheet and explained his position. He denied receipt of any of the alleged bills on the relevant dates and pleaded that it was not his duty to receive the bills or to handle the amount remitted against such bills. According to him, it was the Cashier who had to receive the amount and give receipt thereof. He, however, gave further explanation in his defence.
3. The inquiry was held by an Enquiry Officer appointed for the purposes on the basis of the charge sheet who examined some of the official witnesses. The to customers of the Bank who deposited the bill amount were not examined nor were the original receipts produced. A bare statement of the Cashier was made before the Enquiry Officer to that effect. It is further stated that on 17.4.1984, petitioner received an order stating that the competent authority had been pleased to remove him from the service in consequence of the inquiry, lt was complained by the petitioner that he. Was neither heard by the competent authority nor was he supplied the report of the Enquiry Officer to put an effective defence or rebut it .According to the learned counsel for the petitioner, this amounted to patent illegality and violation of rules of natural justice and fair play.
4. Against the order of his removal from service, the petitioner filed an appeal, which has been provided by Rules of National Bank of Pakistan Staff Service Rules 1980, framed in pursuance of section 11(4) of the Banks (Nationalisation) Act 1974 and NBP Bye Laws. The petitioner on 1.10.1985, received an order merely intimating him that his appeal had been rejected by the Executive Board.
It is further grievance of the petitioner that he was denied an opportunity to be heard even by the appellate authority which happened to be Executive Board of the Bank.
5. During the hearing, petitioner asserted that the amount in respect of which alleged temporary defalcation had taken place, was not recovered from him but was found from the double lock of the bank itself. I am not called upon to advert to this factual aspect and would confine myself to the major legal issues in so far as they relate to the validity of the inquiry proceedings and the order of removal passed against the petitioner.
6. During the hearing of the appeal, I called upon the learned Legal Adviser for the National Bank of Pakistan, Mr. Irshad Ullah Chatha, to produce the record relating to the inquiry proceedings. He complied and same was perused by the Court. The perusal of the disciplinary file by the Court revealed that the disciplinary action was taken against the petitioner by the competent authority who happened to be the President of the respondent/bank. In respect of the petitioner and other officer, a note was put up by the office in the following terms:- "As their integrity has become doubtful and they have been involved criminally, they may be dismissed from the bank's service disallowing payment of salary and allowances during the period of their suspension except subsistence grant paid to them.
The President is the competent authority to award the punishments to the delinquents mentioned above at serial number 1 to 3".
The case was then put up to the Senior Executive Vice President, (A) and Member Executive Board, who signed the above office recommendation and, thereafter, on 21st March, 1988, the President of the Bank passed the following orders:- "The delinquents at serial No.2 & 3 may be removed from service".
Thus in this manner by the order of the President of the Bank, the petitioner stood removed from service.
7. In these set of circumstances, the petitioner filed an appeal. The appellate file was also produced and perused by this Court. The perusal of the appellate file revealed the following material circumstances.
8. The appeal of the petitioner was put up before the Vice President
(A) on 12.6.1985, who observed thereon that "recommendations endorsed as at 'X'. Appeal may be rejected under the competence of the Executive Board". The case was then put up before the Member Executive Board, (A) who vide his undated order observed as under:-
(B) "A Memo may be placed before the Executive Bourd recommending rejection of the appeal".The very gentleman who had passed order of removal of the petitioner from service thereon observed that "1 agree" This was done on 22.6.1983. 1h other words he agreed with the Vice President of the Executive Board, (A), ln this peculiar circumstance of this case, 1 asked the learned Legal Advisor for the respondent/bank to inform the Court as to whether or not the President of the bank is the Member of the Executive Board, he frankly admitted this to be correct. Confronted with this situation Mr. Chalha, learned counsel for the respondent/bank wanted to justify the participation of the President of the Bank who awarded the penalty to the petitioner in the appellate proceedings.
He wanted to justify this illegal participation on the plea that the President was participating in the proceedings in the capacity of the Member of the Executive Board which capacity is different from the President of the Bank and, therefore, is at is not open to any exception or at any rate is condonable.9. Alter having given my anxious consideration to this plea of the learned counsel for the rcspondcnl/bank, I have not been able to sustain the same. 1 am fortified in my view by referring to a Division Bench decision in the case of Mubarik Ali Bhatti Versus Mr.Fayyaz Ali Khan, District Manager, Provincial Transport Service, Lyallpur and others; PLD 1963 (W.P.) Lahore 8. In this precedent case, the Division Bench ruled as under:- "It is, therefore, contended for the petitioner that Mr.Fayyaz Ali Khan having himself been the Chairman of the Screening Committee, he could not hear the appeal. It is not denied that Mr.Fayyaz Ali Khan was Chairman of the Screening Committee and that he also heard the appeal.
Even if there had been no such rule, the hearing of an appeal by an authority who has himself participated in the original proceeding is contrary to the rules of natural justice. We have no doubt that the removal of the petitioner should be set aside on this ground".
10. The second plea of Mr.Irshad Ullah Challa that artificial distinction should be drawn between President of the Bank as such and the President of the Bank acting as Chairman, Executive Board of the bank is to artificial to call for any serious comment. The fact of the matter is that the very same person who passed the order of penally was participating in the appellate proceedings. The superficial nature of the arguments is exposed by the very reference to the provision of appeal as contained in para-40 of the Rules Governing the service of employees of the National Bank of Pakistan made under Bye-law 18(a) (iii) and (iv) of the National Bank of Pakistan Bye-Laws, read with section 11(4) of the banks (Nationalization) Act, 1974, which reads as under:- "An employee shall have the right of appeal or of making application for review for any of the penalties imposed upon him. The appeals or applications for review shall lie to an authority next higher than that which passed the orders of punishment."
The proviso to this provision lays down that "where the authority which passed the orders of punishment is the Executive Board, the appeals of applications of review shall also lie with Executive Board." '
11, ln the present case, however, there can be no escape from the decision of the Division Bench cited above. The matter docs not rest here. In the case of Sh. Abdur Rehman. Advocate.
Bahawalnagar Versus The Collector and Deputy Commissioner. Bahawalnagar and 13 others: PLD 1964 Supreme Court 461, three Members of the District Council who participated in the proceedings for passing a resolution of removal of a Chairman of a Union Committee had not been appointed to the District Council as Chairman of Union Committees. They were to be ex-officio Members of the District Council under Article 15(2) as Vice Chairman of Municipal Committees. As per Notification constituting the District Council the Vice Chairman of three Committees were declared to be "ex-officio" official members of the District Council" not even by name but by virtue of their office. The Supreme Court held that such members were not qualified to vote in the resolution for the removal of the Chairman of the Union Committee. It was further held "the importance of the irregularity that occurred by the participation of these three members in the meeting was enhanced by the fact that one of these, three members, was the Chairman of the meeting against whom there were allegations that he had manoeuvred the proceedings for removal of the appellant before the Supreme Court, lt was, thus, further observed that "it is true that every irregularity of this kind does not necessarily vitiate the proceedings, but in the present case it was not a mere irregularity. It may very well have affected the passing of the resolution". The Supreme Court further went on to hold that a subsequent meeting of the District Council on a reference from the Controlling Authority for reconsideration of the Yesolulion, at which another person presided, but which simply "confirmed" the previous resolution, made no difference. The meeting was thus held to be illegal. In my humble view this provides a complete answer to the argument of Mr. Chalta, and the same is, accordingly, repelled.
12. Now coming to the appeal filed by the petitioner which is Annexure 'C' to the Writ Petition. A number of grounds were raised by the petitioner in his appeal, In the course of this appeal, the petitioner also pointed out that Enquiry Officer was biased and partial because one of the accused was related to the Enquiry Officer. The perusal of the enquiry file and the appellate file shows that none of the pleas raised by the appellant was even considered by the appellate forum and were completely brushed aside. I musf observe that the right of appeal is a valuable right, and in a case where the petitioner had not been given opportunity to be heard in support of his appeal, heavier onus lay on the appellate authority to consider the pleas raised by the appellant in his appeal. This not having been done amounted to patent illegality and failure to exercise jurisdiction in accordance with law.
13. It is undeniable fact that the petitioner was not heard in support of his appeal. 1 would once again advert to the decision of the Supreme Court in the case of Sh. Abdur Rahman. Advocate.
Bahawalnagar V/S The Collector and Deputy Commissioner. Bahawalnagar and 13 others, referred supra, wherein the following enunciation of law has been made by the Supreme Court."Principles of natural justice are to be read in every enactmfent in the absence of a provision to the contrary".
Referring to the case of Manzoor-ul-Haq Vs. Controlling Authority, the Supremd Court further observed that the use of Word "may" in respect of observance of rule of natural justice were in consistent with the principles of natural justice and the Government cannot by framing a rule take away the right to show cause which a person has on account of a principle of natural justice and which has to be deemed to be incorporated, in every enactment. The right could have been taken away by a provision in the Basic Democracies Order, but if the Order grants such a right the rule making authority cannot take it away. Rules have to be consistent with the Statute under which they are framed and with all that is deemed to be incorporated in the statute.
14. Seen in this light it appears that non-granting of opportunity to the petitioner of being heard in support of his appeal, would render the impugned action and proceedings against him void. The passing of the order of removal of 'the petitioner by the President of the Bank, who also presided over the meeting of the Executive Board, may well have effected the result of the appeal. It may further be noted that even when initial order of the removal of the petitioner was passed by the President of the Bank, the petitioner was not given an opportunity to be heard. This further aggravates the illegality of the proceedings taken to the prejudice of the petitioner and of his valuable rights of service.
15. Coming to the merits of the charges, as the proceedings of 2nd February, 1988, held by this Court would show that learned counsel for the Bank was unable to deny the fact that the money which formed subject-matter of the charge against the petitioner was found in the safe of the Bank and was not found from his person. Thus there was no question of having taken any benefit or advantage by placing the money in the double lock of the Bank
16. I have already desisted from going into factual charges against the petitioner for the simple reason that on the legal plane the proceedings taken and order passed to the prejudice of the petitioner, are wholly unsustainable in law being void, without jurisdiction and tainted with multiple illegalities.
17. In the circumstances, the impugned order of removal of the petitioner from service of the Bank are hereby declared to be without lawful authority and of no legal effect. The orders of the Executive Board in appeal continue to sufffer from the same infirmity. It is further declared that these void orders would have no effect on the service of the petitioner and that while he was all the the willing to serve, these illegal proceedings prevented him from performing his duties. The petitioner would, therefore, be entitled to full back benefits.
18. Writ Petition is, accordingly, accepted in the above terms. However, in the peculia' circumstances of the case, 1 spare the respondents the costs.