' This civil revision calls in question the judgment and the decree dated 14-12-1992 passed by a learned Additional District Judge, Peshawar. Affirming the judgment and the decree dated 26-10- 1991 of the learned Senior Civil Judge, Peshawar, whereby the suit for declaration brought by Khushal Khan. Respondent No, 1 herein, challenging his compulsory retirement from the National Bank of Pakistan as Assistant Vice-President was decreed.
2.. The bare outlines of the case are as follows: The plaintiff respondent No,1 joined National Bank of Pakistan in 1957 as a Staff Member. In due course of service he was posted as Manager of the Bank Birmingham Branch U.K. In the year, 1968 in place of one Mr.SA. Hashmi. The plaintiff detected frauds committed by Mr.S.A. Hashmi and had communicated to Head Office of defendant No,1 and Senior Regional Manager in London. In the year 1978 the plaintiff was appointed as Area Manager, D.I. Khan when a shortage of Rs,1,00,000 (rupees one lac) in the course of handing over and taking over of the charge of the Senior Head Cashier at D.I. Khan Main Branch of the Bank was reported to the plaintiff. He recouped the Bank money aforesaid from the three delinquent staff members in equal proportion. Besides this, the matter was also reported to the Assistant Director, F.IA., D.I. Khan who returned the report on 8-4-1978 contending that F.IA. Was not inclined to intervene in the matter. The matter was also reported to Sub-Martial Law Administrator, D.I. Khan, who also refused to take cognizance of the matter. In the meantime, defendant No,1 promoted the plaintiff as.
Assistant Vice-President with effect from 1-7-1978. He was then posted as In charge of the Coordination Department in the Principal Office of the Bank' at Peshawar, vide order dated 1-3- 1980. During this posting of the plaintiff, some inquiry was conducted by one Sultan Ahmad, the then Vice-President of Principal Office, Hyderabad, in respect of the aforesaid shortage of Rs,1,00,000 at D.I. Khan, Main Branch of the Bank. In consequence, the plaintiff was served with a notice as to why penalty be not imposed on him under the National Bank of Pakistan Staff Service Rules. On 13-10-1982 the plaintiff put in a detailed reply. In the meantime, the plaintiff was transferred and posted as Zonal Head Attock Zone. During this period, the said Mr. SA. Hashmi was posted in the Administration Division of the Head Office and in order to avenge the complaint against him alluded to earlier, he embarked upon a campaign of victimization and vilification and sat over the plaintiff's case of promotion orders. Nonetheless, due to. Outstanding performance at Attock and elsewhere, the plaintiff was promoted as Vice-President with effect from 1-7-1982 vide orders dated 4-4-1983 and in appreciation of his achievement other Zones were directed to follow Attock Zone in the achievements of targets. On 29-2-1984, however, the Executive Vice-President of the Bank intimated to the plaintiff that the D.I. Khan Branch's case had been decided by administering warning to the plaintiff to be careful in future. Notwithstanding finalisation of the case as aforesaid, the Head Office vide Circular No,2462 dated 10-6-1984 ordered demotion of the plaintiff from the post of Vice-President to that of Assistant Vice-President with effect from 2-5- 1984. Not content with this harassm ent, defendant No,1 directed the forfeiture of Trophy awarded to the plaintiff on account of his commendable performance at Attock. Again to the plaintiff's utter dismay by another order, the case of D.I. Khan was re-opened and in pursuance thereof he was summoned to Karachi for personal hearing on 20-7-1986. The plaintiff intended to put his version by placing his hands on the Holy Qur'an but he was disallowed by the Board conducting his personal hearing. In this hearing, the plaintiff was informed that orders of his removal from service had already been, passed on 22-6-1986 but if he was agreeable it could be substituted with his compulsory retirement failing which his orders of removal from service would be altered to that of dismissal thereby bringing about a "bigger stigma on his forehead". The plaintiff was thus coerced into putting his signatures on four sheets of paper resulting in letter dated 18/20-9-1986 of defendant No,1 communicating to the plaintiff that his removal from service had been substituted with retirement from service. The plaintiff made representation to the President and the Executive Members of the Board challenging 4 punishments for one so-called minor lapse attributed to the plaintiff but to no avail. In this factual background the propriety and legality of the impugned 4 punishments imposed upon the plaintiff had been assailed on the following grounds, namely.-- "(a) That handling of cash was the job of the Cashier, the Head Cashier, the Chief Cashier and the Accountant and, therefore, the plaintiff had no contribution to the shortage of the money nonetheless when their delinquent conduct was brought to his notice, he successfully took all the legal measures not only to recover the amount but also reported the matter immediately to the high ups.
(b) That the so-called inquiries held at the back of the plaintiff were void as he was neither associated therein nor evidence was recorded in his presence and, therefore, he had been deprived of his opportunity to meet the charges in consonance with equity and fair play.
(c) That in D.I. Khan's case warning was administered to the plaintiff vide letter dated 29-2-1984 by the competent authority duly approved by the Central Board in their minutes on 31-1-1984, therefore, the matter had legally attained finality. The subsequent punishments of demotion to the post of Assistant Vice-President vide Circular Letter No,2462 dated 10-6-1984 with effect from 2-5- 1984, forfeiture of the President's Trophy vide Circular letter dated 12-7-1984, removal from service vide letter dated 10-7-1986 with effect from 22-6-1986 and substitution of removal from service with that of compulsory retirement from service `were all acts in excess of lawful authority and jurisdiction and, therefore, were illegal, unlawful, void and ineffective'.
(d) That the impugned penalties imposed upon the plaintiff were tainted with mala fides perpetrated against him by Mr. SA.Hashmi under whose persuasion the Members and the President had acted in the manner highly prejudicial to the plaintiff.
(e) That the punishments awarded to the plaintiff were against the Staff Service Rules and were void.
(f) That the repeated inquiries. Were conducted by Mr. Ahmad Mian and Mr.Sultan Ahmad against the plaintiff in his absence and the reports of these officers 'on the basis of which the plaintiff was punished in so many doses were not supplied to the plaintiff."
3. In the written statement filed by defendant No,1 the allegations of the plaintiff were traversed. It was averred that the plaintiff in order to get the shortage of Rs,1,00,000 made up a novel modus operandi were resorted to by the plaintiff. A sum of Rs,72,000 was deposited by Ahmad Saeed, Senior Cashier and Muhammad Azam Baloch, Officer Grade-III while the shortage of remaining Rs,28,000 was made up on 4-2-1978 by debiting it in the Branch of the Bank's Protested Bill of Account. In order to satisfy the Protested Bill of Account, the plaintiff made entry of a sum of Rs,18,000 in Account No,M-1700 being operated by Malik Makhan Khan an account-holder of the Bank. A sum of Rs,4,000 were fraudulently withdrawn from the account of one Mrs. Saeeda Begum while the balance of Rs,6,000 were deposited by the plaintiff from his own pocket. The plaintiff being Branch Manager has kept to himself this secret technique. The report to F.I.A. Was made after 11-2-1978 when the plaintiff had already succeeded in screening the culprits from legal consequences by the techniques as detailed above. Since the actual facts were not known to defendant No,1 therefore, he was promoted in routine. Nonetheless, after preliminary inquiry by Mr.Sultah Ahmad, the plaintiff was charge-sheeted to which the latter put in reply which was found not satisfactory. In consequence, Arbab Muhammad Ashraf, who was appointed as Inquiry Officer, conducted inquiry against the plaintiff wherein the latter had fully participated. The warning was issued to the plaintiff at the initial stage when his other illegal activities in the whole affairs had not come to surface after the new Head Cashier had divulged in his report the details of the plaintiffs involvement to hush up the shortage of the Bank money and the technique adopted by him to make up the said shortage which was serious irregularity warranting stern action by way of serving a fresh charge-sheet upon him. After complying with all the legal formalities, the plaintiff was rightly demoted and in consequence the Presidential Trophy was also rightly retrieved. Upon the plaintiffs appeal the Board deemed it appropriate to appoint Mr. Muhammad Ahmad Mian, Senior Vice-President as Inquiry Officer. The plaintiff again participated in the inquiry. In the light of the inquiry report the plaintiff was removed from service. Nonetheless, in pursuance of the plaintiffs prayer for mercy, he was allowed to avail of option of retirement and, therefore, the plaintiff was estopped to challenge it. A number of legal objections were also raised.
4. On these divergent pleadings the parties went to trial on as many as 15 issues including the relief.
For the purpose of this petition, the following issues are relevant:-- "(1) Whether the plaintiff has got the cause of action?
(4) Whether the plaintiff is estopped to sue due to his own conduct?
(5) Whether the suit is based on mala fide?
(7) Whether the plaintiff had no hand in the shortage of Rs,1,00,000 in the main City Branch, D.I.
Khan?
(8) Whether the inquiries were held at the back of the plaintiff, therefore, they were void and perverse in the eyes of law?
(9) Whether the plaintiff was administered the punishment of warning in the D.I.Khan case and the matter was legally finalized, therefore, the subsequent punishment of the gradation, forfeiture of the President's Trophy, removal from service and substitution of the removal into retirement were all acts in excess of lawful authority and jurisdiction and were therefore, illegal, unlawful, void and ineffective?
(11)Whether the punishments awarded to the plaintiff are against the staff service rules and are, therefore, void?
(12)Whether the Office Order Circular No,2462 dated 10-6-1984 of defendant No,1 whereby plaintiff was degraded from the post of the Vice-President to that of Assistant Vice-President of the Bank with effect from 2-5-1984 and Circular No, OPS-CW-SA/1251 dated 12-7-1984 of defendant No, 1 whereby the President Trophy awarded to the plaintiff for his outstanding performance was forfeited and Order NoAdmn-TISC/19608 dated 18/20th September, 1986 of defendant No, 1 thereby plaintiff was removed from service with effect from 22-6-1986 and Circular No,3526 dated 24-11-86 of defendant No,1 whereby removal from service was substituted by so-called optional retirement from the bank service with effect from 30-7-1986 are mala fide acts and all such orders and circulars are against the law and the rules, and are illegal, unlawful, void and ineffective against the rights of the plaintiff and liable to be set aside?
(14) Whether the plaintiff himself applied for optional retirement, if so, its effect?"
5. Issues Nos. 2, 3, 5 and 6 were not pressed before the learned trial Judge. He took up issue No,14 at the outset and held thereunder that the plaintiff had "himself asked for the optional retirement in lieu of his removal from service. However, as he has been retired from service at his own request, therefore, all other punishments awarded to him become infructuous and the order administering warning, degradation, forfeiture of Trophy, removal from service will not stand in his way and as he was promoted as Vice-President, his degradation is also incorrect and he should be retired as Vice-President instead of Assistant Vice-President". Issues Nos.1 and 13 were then taken up together and it was held that as 'the plaintiff had himself applied for optional retirement which was accepted and his order from removal of service was converted into retirement and it is also held that he has to be retired at his own request as Vice-President because all the orders of punishments awarded to him on the basis of disputed amount became infructuous, therefore, the order of retirement is modified to this extent and the other impugned orders are set aside. Issues Nos.2, 3, 4, 5 and 6 were, neither pressed nor proved and were thus not discussed on merits. Issues Nos.7, 8, 9, 10, 11 and 12, according to the learned trial Judge, did not require any finding and were found redundant, in that, the plaintiff had already been held to have himself opted for retirement.
As a result of these findings, the learned trial Judge 'set aside all the impugned orders excepting the last one of compulsory retirement' which was "modified to the extent that the plaintiff is to be (shall be deemed) to (have) retired as Vice-President instead of Assistant Vice-President".
6. Against this judgment and the decree the parties filed two appeals before the Appellate Court:
(i) Civil Appeal No,213/13 of 1991 by the plaintiff on 14-11-1991 and (ii) Civil Appeal No,222/13 of 1991 by the National Bank of Pakistan on 2-12-1991 to challenge the aforementioned findings of the learned trial Judge.
7. The sole proposition canvassed before the learned appellate Court was: "whether the plaintiff/appellant had, opted for retirement or it was the Bank Authorities which coerced him to seek retirement?" The learned Additional District Judge, Peshawar, who was seized of both the matters, observed that the plaintiff filed the suit to challenge his compulsory retirement after 2-1/2 years but the grounds to assail the aforesaid impugned order were far from proved. In this view of the matter, while upholding the findings of the learned trial Judge, the learned appellate Court dismissed both the appeals.
8. The plaintiff respondent No,1 seems to have been pacified with the fate of his litigation, for, he had not challenged the judgment and the decree of the appellate Court. The National Bank of Pakistan, however, felt aggrieved of the findings of the appellate Court and has questioned them by way of this petition in revision.
9. The proposition that has survived for my address is whether the plaintiff-respondent No,1 had been retired as Vice-President and not as Assistant Vice-President. Since the impugned order does not in terms unequivocal reveal as to whether the plaintiff had been compulsorily retired as Vice- President or Assistant Vice-President, therefore, the precise question would be whether he would be deemed to have been retired as Vice-President and not as Assistant Vice-President.
10. I have heard at length Haji Maqsood Ahmad, learned counsel for the petitioner Bank. His arguments in brief are as follows:- "(a) The orders dated 29-2-1984 administering warning to and those dated 10-6-1984 degrading the plaintiff from the post of Vice-President to that of Assistant Vice-President and finally of his removal from service passed on 10-7-1986 having not been challenged within time could neither be legally struck down by the trial Court nor could be upheld by the learned appellate Court,--
(b) The two Courts below have fallen into a grave error to hold that the plaintiff could be deemed in fact and to have been retired from service as Vice-President."
11. Elaborating his contentions the learned counsel for the petitioner Bank submitted that the orders dated 29-2-1984 administering warning to the plaintiff and those dated 10-6-1984 ordering degradation of the plaintiff from Vice-President to that of Assistant Vice-President and lastly dated 22-6-1986 ordering removal of the plaintiff from service having not been challenged within limitation besides being time-barred operated against him by way of estoppel. He also urged with vehemence that when the orders of retirement of the plaintiff were passed he was holding the post of Assistant Vice-President and was in fact and law and would be deemed to have been retired as Assistant Vice-President and could, by no stretch of imagination, be construed to have been retired as Vice-President which post he was not holding at the crucial juncture of conversion of his removal from service to that of optional retirement.
11-A. Qazi Muhammad Anwar, learned counsel for the plaintiff-respondent No, 1, on the other hand, contended that it was a classical case of victimization of a Bank Officer at the hands of those at the apex of the Bank's hierarchy. In this context, he had lighted, step by step, the process of vilification from administering warning to degradation and from degradation to forfeiture of Presidential Trophy and from forfeiture of Trophy to removal of service which, according to the learned counsel, was in violation of the principles of natural justice muchless than all the cannons of justice.
12. After hearing the learned counsel for the parties, I have not been pursuaded to accept the contentions raised by the learned counsel for the petitioner-Bank.
13. A bare perusal of the written statement filed by the petitioner would reveal that the plea of limitation has neither been taken up therein nor in the memorandum of appeal and nor it was agitated before the two forums below. The petitioner is, therefore, not allowed to raise it at this belated stage of revision. Nonetheless, the plaintiff-respondent No,1 had sued for declaration to which Article 120 of the Limitation Act, 1908 would be attracted. The said Article provides six years from the date of accrual of cause of action. The terminus quo for computing the period of limitation of six years accrued to the plaintiff when the order of his removal from service was converted into his compulsory retirement somewhere on 20-7-1987 while the suit has been instituted on 1-2-1989. The first contention of the learned counsel even on merits stands repelled.
14. There is no denying the fact that for one misconduct, if it could be construed from the record as misconduct, the plaintiff-respondent No,1 was administered warning as is evident from the order dated 29-2-1984 photo copy Exh.PW.1/28 (Annexure M). It was at this juncture that Mr. SA. Hashmi had taken over in the Administration Wing of the petitioner whose mala fides are evident from the application photo copy Exh.DW.1/25 (two pages) and the complaints of the former against the latter while his posting at the U.K.'s Branch of the Bank at Birmingham, that started a campaign of witch hunting of the plaintiff. The first stroke surfaced when the plaintiff was degraded on 10-6-1984 to the lower grade of Assistant Vice-President by virtue of order photo copy Exh.DW.1/30. Again on 10-7-1986 orders of his removal from service were passed with effect from 22-6-1986. And lastly on review of Board's decision of "punishment of his removal from bank service and his application for grant of optional retirement from the bank service". It was decided that `punishment of removal awarded to him on 22-6-1986 be set aside and the punishment of degradation as assistant Vice-President as initially awarded to him by the Executive Board be passed on". The Board further decided that this request for optional retirement be accepted with effect from 30-7-1986 These successive orders of enhancements of punishment smacking of mala fides could not be passed in that the last mentioned order is dearly hit by the maxim: "nemo debet lis vexari prouna et eadem causa" i,e, it is a rule of law that a man shall not be twice vexed for one and the same cause. In the precedent case of Abdur Razaq Malik v. WAPDA (PLD 1973 Lahore 188) excerpts from Broom's Legal Maxims at pages 219 and 233 were cited on the principles autrefois acquit and autrefois convict and it was laid down:-- "It is, therefore, clear that this principle is equally applicable to civil as well as to criminal proceedings. In whichever category a disciplinary inquiry against a civil servant may, therefore, be classed, the result of it would be that once an employee has been punished by competent authority the matter cannot be re-opened to his detriment. The second charge-sheet, therefore, could not form the basis of the punishment meted out to the petitioner as he had been already punished for Another interesting fact is that the last-mentioned impugned order of conversion of removal to that of compulsory retirement encompasses the earlier punishment of degradation to lower grade and a particular reference has also been made thereto and then his compulsory retirement order has been passed. I, therefore, find substance in the argument of Qazi Muhammad Anwar, learned counsel for the plaintiff-respondent No, 1 that it was, to say the least, not only unprecedented in service matters but was exhibited maximum cruelty that has been perpetrated upon the plaintiff. It was a queer machination of those who were at the helm of affairs that they were not content with warning. Then retrieval of Presidential Trophy did not quench the thirst of revenge. Even demotion to lower grade was not deemed enough till he was first ordered to be removed from service in order to coerce the plaintiff into accepting his compulsory retirement and that too from his degraded position."
15. I have, therefore, no hesitation to hold that the whole punishments from stage of administering warning to the plaintiff to that ultimate punishment of his compulsory retirement are based on the same evidence and, therefore, the maxim: nemo debet lis vexari prouna et eadem causa i,e, it is a rule of law that a man shall not be twice vexed for one and the same cause, is fully attracted to the plaintiffs case. In the -circumstances, the learned two Courts below have rightly observed that had the plaintiff not opted for retirement he would have found himself entitled to other beneficial reliefs.
In this view of the matter, I have no hesitation to uphold the findings of the two learned Courts that the plaintiff cannot be awarded four punishments at different junctures. Namely, warning and retrieval of Presidential Trophy, the degradation to the lower post, the removal' from service and then allowing optional retirement. The impugned order of optional retirement has been rightly construed to be one of optional retirement as Vice-President and not as Assistant Vice-President.
16. As a sequel to what has been observed above, there is no substance in this petition in revision and is accordingly dismissed. There shall be no order as to costs.
THE END SUPREME COURT (A. J & revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.