CH.MUSHTAQ AHMAD KHAN, J.- Briefly stated facts of the case out of which this Civil Revision has arisen are that respondent who was a Manager of pelitioner-Bank was issued a charge-sheet on 14.11.1978 wherein charges of fraud, misappropriation, breach of trust and gross misconduct were levelled against him and thereafter holding of enquiry into the allegations, he was dismissed from service by the petitioner vide order dated 31.5.1981. This order was challenged in -a declaratory suit filed before the Civil Court at Jhelum on the ground that the impugned order is malafide, arbitrary, capricious, illegal, void and hence ineffective on the rights of the plaintiff and that the plaintiff continues to be in the service of the defendant. The suit was contested. Learned trial Court on the basis of the pleadings of the parties settled following issues:-
1. Whether the plain merits rejection in its present form?
2. Whether the plaintiff and defendants are governed by the relationship of master and servant? If so to what effect upon the merits of the suit ?
3. Whether the order dated 31.5.1981 by the defendants against the plaintiff is malafide, arbitrary, capricious, illegal, void and ineffective on the rights of the plaintiff, if'any, and liable to set-aside?
4. Relief.And after iccording of evidence, vide judgment and decree dated 27.7.1986 dismissed the suit on the ground that principle of master and servant applies in this case and therefore, the plaintiff cannot be granted a decree as prayed for learned trial Court however held that the order of dismissal of the respondent Rum'service could not have been passed without a second final show cause notice, which admittedly was not issued. Aggrieved of this judgment and decree, the respondent filed regular first appeal before District Court of Jhelum, which has been accepted by the learned District Judge, Jhelum vide judgment and decree dated 11.12.1988 findings of the learned trial Court on issue No.2 have been set aside and it has been held that the relationship of service between the parties is not that of master und servant and is governed by the National Bank of Pakistan (Staff) Service Rules. 1980 which have got a force of statutory rules as held in the case reported as NLR 1985 Service 37 Supreme Court of Pakistan. It has further been held by the learned lower Appellate Court that as per rule 39 of National Bank of Pakistan (Staff) Service Rules 1980, a final show-cause notice was to be issued by the competent authority before passing of the impugned order which admittedly has not been issued in this case therefore, the statutory rule having been violated which passing of the impugned order of dismissal of service of the respondent, the suit is liable to be decreed as prayed for, hence the suit has been decreed vide judgment and decreed rendered by the learned First Appellate Court. This judgment and decree has been challenged by the defendant in this civil revision.
2. Kh. Muhammad Farooq Advocate has appeared on behalf of the petitioner whereas Dr. G.S. Khan, Advocate has appeared on behalf of the respondent. Learned counsel for the petitioner has argued that as per rule 39 of National Bank of Pakistan (Staff) Service Rules 1980, there is no requirement for issuance of second show-cause notice before passing of the order of dismissal by competent authority, therefore, the findings of the learned First Appellate Court to the effect that the service rules have been violated is incorrect and liable to be set-aside. Learned counsel contends that as it is the prerogative of the competent authority to go into the factual aspect of the charges levelled against the respondent on the basis whereof the order of dismissal has been passed. Reliance is placed on case reported as A. Ghani Sayeed V. National Bank of Pakistan (1989 P.L.C. (C.S.) 249). Therefore, there being no violation of statutory rules, the suit could not have been decreed even if it has been held that relationship between the parties is not that of master and servant as governed by the statutory rules. Learned counsel further contends that the service relation before the parties is that of a master and servant as the service rules referred to above are non- statutory reliance is placed on case of Anwar Hussain v. Agricultural Development Bank of Pakistan & others (PLD 1984 S.C. 194) and case of:- The Principal. Cadet College Kohat and another v. Muhammad Shoab Qureshi (PLD 1984 SC 170) Hence according to the learned counsel judgment and decree rendered by the learned First Appellate Court if liable to be set-aside.
3. As against the above arguments addressed by the learned counsel for the petitioner, Dr. G.S Khan, learned counsel for the respondent has contended that admittedly, the service relations between the parties is governed by National Bank of Pakistan (Stall) Service Rules, 1980 which have got the force of a statutory rule and as per general principle as laid down in case of Province of EastPakistan and others v. Secretary, Muktagacha Abbasia Senior Madrassa (PLD 1964 S.C 401), issuance of show-cause notice prior to the passing on an order of dismissal of service is necessary and the said notice admittedly having not been served upon the respondertt, the order of dismissal being void ab-initio has rightly been declared as such by the learned First Appellate Court vide impugned judgment which is unexceptionable. Learned counsel has further contended that the respondent even otherwise has been exonerated by the Enquiry Officer, therefore, the competent Authority has no jurisdiction to pass an order of dismissal from service against the respondent on the basis of such a report. The only course open to the Authority was to have directed to hold a fresh enquiry if he was not satisfied with the report. This having not been done, on this ground as well, order of dismissal from service is illegal, and therefore, the judgment rendered by the learned First Appellate Court is not liable to interfered with in exercise of the revisional jurisdiction of this Court, as justice has been done in the matter, in support of his argument, learned counsel has placed reliance on case of National Bank of Pakistan and another v. Punjab Labour Appellate Tribunal and two others (PW2 P.L.C. (C.S.)415).
4. I have considered the arguments addressed by the learned counsel for the parlies and have also gone through the record. National Bank of Pakistan (Staff) Service Rules, 1981) have been held to be non-statutory in nature as they were not framed with the prior approval of the Federal Government. Consequently, the relationship between the parties in this case shall be that of a master and servant, in case of National Bank of Pakistan and another vs. Punjab Labour Appellate Tribunal and 2 others. (PW2 P.L.C. 415) at page 422 of the report, it has been held as under:- "It is also not disputed that the National Bank of Pakistan (Staff) Service Rules, 1973, were framed, with the previous approval of the Central Government, by virtue of powers granted to the appellant- Bank by virtue of Section 32 of the National Bank of Pakistan Ordinance. 1949. And will have to be treated as statutory rules. These Rules were applicable till 1975 when the First Wage Commission Award was announced on 9.6.1975. By para 258 of the said award, the Commission laid down uniform procedure in respect of disciplinary action.And punishment to be followed by all the banks and financial institutions", it then framed and set out in the said para the said rules called the Efficiency and Discipline (Banks and Financial Institutions) Rules, 1975, which thus became operative with the award. These rules therefore displaced the appellant-Bank's 1973 Service Rules which were statutory. The Rules of 1975 were in any case not statutory and they continued in efl'cit till the second Wage Commission Award was announced on 24.4.19 By para 26 of the said award, the 1975 Discipline Rules were made applicable only in cases where no statutory rules. By para 27, it affirmed it had inspected the National Bank of Pakistan (Staff) Services Rules, 1973 and expressed theopinion that all 1he nationalised Banks should model their rules on the said basis. Whereas the 1975, Discpline Rules displaced the appellant Bank's 1973 Service Rules, the Second Wage Commission Award revived the 1973 Service Rules. Since the 1973 Sendee Rules stood revived, they obviously can only, be treated as statutory, as they had been earlier approved by the Central Government. In 1980, the appellant Bank framed fresh rules called the National Bank of Pakistan (Staff) Service Rules, 1980. These thus displaced the 1973 Service Rules. The 1980 Service Rules are obviously non-statutory, for the Central Government's previous approval was never obtained".Similar view has been taken in cases of Chairman, WAPDA and 2 others vs. Sved Jamil Ahmed (1993 S.C.M.R. 346) and National Bank of Pakistan vs. Punjab Labour Court No.5, Faisalabad and 2 others (1993 S.C.M.R.672). The case of Shamim Ahmed vs. Punjab Service Tribunal, Lahore (NLR 1985 Service 87) relates to employees whose services were governed by the National Bank of Pakistan (Staff) Service Rules, 1973. Admittedly, the service of the respondent is governed by National Bank of Pakistan (Staff) Service Rules, 1980, which do not have force of statutory rules.
Hence, the Findings on issue No.2 rendered learned First Appellate Court to the effect that the service relationship between the parties is not that of master and servant is set-aside and Findings of the learned trial Court on issue No.2 is restored and is held that the service relationship between the parties is that of master and servant, hence it was rightly held by the learned trial Court, the only remedy available to the respondent to by to File of a suit for damages and no decree for declaration as prayed for can be granted in his favour. Finding of the learned Courts below on the issue of necessity of service of second show cause notice is also erroneous, in order to determine the above issue by wav of ready reference, Rule 39 of the National Bank of Pakistan (Staff) Service Rules, 1980 is reproduced as under:- "Disciplinary action-Procedure:-(l) When, as a result of preliminary investigation, an employee is reported to have committed any irregularity mentioned in rule 37, the competent authority shall cause a charge sheet to be issued to him and shall appoint an enquiry officer or an enquiry committee to hold to an enquiry in the case. The competent authority may delegate the powers to issue charge sheet and to appoint enquiry officer or enquiry committee to a subordinate authority.
(2) (a) The enquiry officer or the enquiry committee so constituted shallrequire the accused within a reasonable time, which shall not be less than 7 days and more than 14 days from the date charge sheet has been communicated to him, to put in a written defence and to state at the same time whether he desired to be heard in person.
(b) The enquiry office I or the enquiry committee, as the case may be shall enquire into the charges and may examine such oral or documentary evidence in support of the charges or in defence of the accused as may lie considered necessary and the accused shall beentitled to cross examine the witnesses against him;
(c) Where the enquiry officer or the enquiry committee, as the case may be, is satisfied that the accused is hampering or attempting to hamper the progress of the enquiry he or it shall administer a warning, and if thereafter he or it is satisfied that the accused is acting in disregard to the warning, he or it shall record a finding to that effect and proceed to complete the enquiry in such a manner as he or it thinks best in the circumstances;
(3) The report together with the employee's statement shall be laid before the authority ordering the enquiry which shall consider the matter and award such punishment, as it deems proper, if it is competent authority itself under rule 37; otherwise lay the said report before the authority competent with its recommendations. The decision of the competent authority shall be conveyed in writing to the employee concerned;Provided that in the light of facts of the case the requirements of sub- rules (1), (2) & (3) may be dispensed with by the competent authority and it will be just and proper for the competent authority to lake an I explanation of the employee and award punishment forthwith".
This rule has been interpreted in case of Abdul Gani Syed vs. National Bank of 1 Pakistan (1989 PLC 249) referred to supra by the learned counsel for the petitioner. Discussing the necessity provision of second show cause notice prior to I the passing of the final order of dismissal, their lordships of the Karachi High Court at page 255 of the report has held as under:- "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 parly to participate in proceedings, produce the witnesses and cross-examine the witnesses of the other side, it is not necessary 'that as 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 inquiry report. These alleged failure cannot vitiate the proceedings. The petitioner relied on 1989 S.C.M.R. 842 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 present case no such breach of rules, has been alleged exeept that Rules of 1980 were applied istead 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 participated in the proceeding 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".
Case ol Province of East Pakistan and others vs Secretary Muktagacha Abbasia Senior Madrassa (PLD 1964 S.C.401) referred to by the learned counsel for the respondent is not relevant and is not applicable to the facts of the case in hand, inasmuch as it arises out of the proceedings under different rules. In the case in hand, service of a second show cause notice is not provided under the rules and the petitioner has fully participated in the enquiry proceedings and therefore, it cannot be said that he has suffered any prejudice due to non-issuance of a second show cause notice. It has been held in the case of Ghulam Ali vs, Pakistan through Vice-Chairman, Pakistan Railways (1993 S.C.M.R.540) at page 542 as under:-"
So far as the second question is concerned it is not disputed that the appellant was given full opportunity to participate in the enquiry. He availed of the opportunity and even examined witness in his defence. He was given another opportunity to clear his position when he received the second show cause notice, in the circumstances the mere fact that he was not heard in person by the appellate authority would not vitiate the disciplinary proceedings against him. It is also to be noticed that in the service rules applicable to him there was no provision that he should have been heard by the appellate authority in person, in fact in his memorandum of appeal he did not even ask for personal hearing. In the circumstances there is no merit in the contention that the order of his removal from service was liable to be set aside for the reason that he had not been heard in person.Consequently, it cannot be said that failure to issue a second show cause has in any manner vitiated the order passed by the competent authority, which has been challenged in the suit. Findings of the learned Umer Court on the question of necessity of issuing of second show cause notice and effect on account of failure thereof, is not maintainable and therefore are set- aside and is held that in case of the respondent it was not necessary to issue second show cause notice and at any rale the order of dismissal of his service is not vitiated as per law laid down by their lordships of the Supreme Court in cases of Abdul Ghani Syeed and Ghulam Ali referred to supra. Enquiry report of the Enquiry Officer is just an information and has no binding force upon the competent authority, who has to take a decision on the basis of material before him. Therefore, even if enquiry Officer has exonerated the- respondent in his report the competent authority was not bound to direct a fresh inquiry or i.e exonerate the respondent said it cannot be therc-fore that the order of dismissal could not have been passed by the competent authority. The case repoit d as 1992 P.L.C. 415 rather goes against the respondent.Resultantly, this civil revision is accepted, the impugned judgment and decree by the learned First Appellate Court is set-aside and the judgment anddecree passed by the learned trial Court is restored and the suit is dismissed. The parties are, however, left to bear their own costs.