This is a suit for declaration and damages, filed by an officer of the defendant-bank, who on 3rd December, 1979 was suspended from bank service and was finally dismissed on 15th September, 1980. In this suit it is claimed that the acts of the defendant-bank were ultra vires, illegal, mala fide and without jurisdiction, which resulted in unlawful dismissal of plaintiff.
2. Initially, the plaintiff was appointed on 1st July, 1951 as Senior Auditor/Assistant Vice-President in the Inspection Division of the defendant --bank. It is the case of the plaintiff that the defendant- bank is a statutory body, constituted under Ordinance XXIX of 1949; that the terms and conditions of its employees are governed by the National Bank of Pakistan (Staff) Service Rules, 1973; that due to one anonymous complaint against the plaintiff an inquiry was conducted by the defendant- bank at the back of the Plaintiff; that on 3rd December, 1979 the plaintiff was charge-sheeted and was put under suspension; that the person issuing order of suspension and charge-sheet was neither authorised nor competent in view of Circular No.ADM.EER/74/64, dated 16th July, 1974; that the plaintiff denied all the allegations and submitted his explanation in detail, which was not forwarded to the competent Authority; that on 5th January, 1980 the plaintiff applied for supply of copies of statements, complaint, cash memos and other record pending before the Inquiry Officer but no such documents were provided; that on 30th May, 1980 one Saeed Akhtar, Executive Vice- President was deputed to investigate the case against the plaintiff, as provided under Rule 39 of the Staff Service Rules, 1973; that the inquiry was already in progress when the plaintiff was asked to join the same; that the inquiry was not conducted according to the Rules and Regulations of the Bank; that the Inquiry Officer violated principles of natural justice and concluded the inquiry proceedings in haste; that the plaintiff was not allowed to produce his evidence; that the conduct of the Inquiry Officer throughout the proceedings was bias; that on 15th September, 1980 plaintiff was dismissed from service of the defendant-bank with the further order for recovery of amount of Rs.22,636 paid during the period of suspension; that the second show-cause notice was issued to the plaintiff without giving him an opportunity to explain the adverse findings contained in the first inquiry report; that the plaintiff filed his appeal against the order of dismissal before the competent Authority, which was dismissed on 5th April, 1983; that against the said appellate order the plaintiff filed a Constitutional Petition No. D-237 of 1991, which came up for hearing before a learned Division Bench of this Court and the case was remanded to the appellate authority of the defendant -- bank with the direction to dispose of plaintiff's appeal within three months after hearing the plaintiff; that on 7th October, 1990 the plaintiff was given a formal hearing; that the plaintiff also submitted his written arguments before the appellate authority; that on 6th January, 1991 the plaintiff was informed that his appeal had been dismissed by the appellate authority; that the defendant-bank and appellate authority acted in violation of the Bank's rules and regulations and against the principles of natural justice and did not comply the order of Division Bank of this Court.
In view of these alleged backgrounds of the case, the plaintiff has prayed for the following reliefs:--
(a) Declaration that the order of the defendant-bank, dated the 3rd December,- 1979 and 15th September, 1980, suspending and dismissing the plaintiff from service as well as the order of the Appellate Authority, dated, the 6th January, 1991 rejecting his statutory appeal, are ultra vires, coram non judice, illegal, mala fide, without jurisdiction and of no legal effect; and further that the plaintiff continued in the service of the defendant-bank till age of his superannuation entitled to benefits of service being enjoyed by him at the the of issue of the original impugned orders.
(b) Decree directing the defendant-bank to grant all the benefits of service including salary and allowances, gratuity, pension and other rights which the plaintiff would have ordinarily derived, had the aforesaid impugned orders not been passed against him.
(c) Grant such further reliefs including compensation for mental torture and character assassination.
(d) Costs of the suit.
3. The defendant-bank denied all the allegations contained in the plaint pertaining to the illegal, mala fide and unauthorised acts of the defendant-bank and the appellate authority. The case of the defendant-bank is that upon receipt of complaint against the plaintiff a proper and thorough investigation was conducted, which suggested involvement of the plaintiff in the commission of forging bills of hotel; that the order of suspension and issuing charge-sheet were according to the rules and regulations of the bank; that the explanation submitted by the plaintiff was found to be unsatisfactory; thus the competent Authority appointed an Inquiry Officer; that the National Bank of Pakistan (Staff) Service Rules, 1973 were revised on 1st January, 1980, which are applicable on the plaintiff; that the entire inquiry was conducted strictly in accordance with service rules; that no illegality or irregularity was committed by the Inquiry Officer during the inquiry; that no prejudice was caused to the plaintiff during the holding of inquiry; that according to the inquiry report a case of misconduct was proved against the plaintiff, who was accordingly dismissed; that the appellate authority dismissed the plaintiff's appeal with cogent reasons; that the plaintiff was granted personal hearing in view of the order passed in Constitutional Petition No. D-237 of 1991 and thereafter, his appeal was rejected vide order, dated 6th January, 1991; that the order passed by the Board of Directors in rejecting plaintiff's appeal is legal, justified and with cogent reasons; that the said suit is liable to be dismissed with costs.
4. In view of the above pleadings of the parties, on 3rd May, 1992, following consent issues were adopted by this Court which were brought on record as Exh. 1:--
(1) Whether the impugned disciplinary action by the defendant-Bank was taken in derogation/violation of the statutory Rules governing the service conditions of the plaintiff?
(2) Whether the National Bank of Pakistan (Staff) Rules of 1973 held the field at the the of issue of charge-sheet i.e. 15-12-1979 or those of 1980?
(3) Whether the plaintiff was serving the defendant-Bank in the Grade of Assistant Vice-President or in the Grade of Officer Grade-I? .
(4) Whether the principles of natural justice were violated by the defendant-Bank by, inter alia:
(i) By refusing to give copies of documents to enable the plaintiff to demolish the case set up against him.
(ii) By examining 6 witnesses out of 10 at the back of the plaintiff and using their statements against him which were without cross.
(i.e) By refusing to give the Enquiry Officer's report which was needed by the plaintiff for his statutory appeal to the competent Authority and thus caused great prejudice to him.
(5) Whether the explanation dated 30-12-1979 together with the charges against him were submitted to the authority competent to award punishment which in the case of the plaintiff was the Executive Board of the defendant-Bank?
(6) Whether Senior Vice-President and Executive lice-President were competent Authorities to issue suspension order and charge-sheet respectively to the plaintiff?
(7) Whether the plaintiff was afforded fair and reasonable opportunity to defend himself?
(8) Whether the plaintiff is entitled to recover Rs. 5 lakh from the defendant-Bank for the tortious acts of its employees?
(9) Whether the impugned order has been passed perfunctorily and mechanically without the least application of mind?
(10) Whether the appellate authority of the defendant-Bank has contemptuously brushed aside the order of this Hon'ble Court by not deciding all legal pleas raised by the plaintiff in his statutory appeal?
In support of his case, plaintiff has examined himself and has produced several documents as Exhs. P.1 to P.11 One Shahzad Ahmad Khan, from the Disciplinary Department of the defendant-bank was examined, who has also produced several documents. Plaintiff and defendant have filed their respective written arguments, which were perused by me. I have also heard arguments of Mr. Muhammad Jamil, for the plaintiff and Mr. Raja Shamsuzzaman, for the defendant. My findings on the above issues are as follows:-- ISSUE NO. 3
5. I have taken up this issue as its effect will determine as to which service rules are applicable in the plaintiff's case. The defendant-bank has not seriously contested this issue. In paragraph 1 of the plaint it is claimed by the plaintiff that at the the of his appointment he was Assistant Vice -- President which fact was not denied by the defendant-bank in its written statement. In cross- examination D.W. Shahzad Ahmad Khan, witness of the defendant-bank, admitted that the plaintiff was an employee of Category I and was serving as Assistant Vice-President since 1st May, 1977. In view of this admission, I accordingly answer Issue No. 3 in affirmative.
ISSUE NO. 2
6. It is an admitted fact that the charge-sheet as well as suspension order was issued on 15th July, 1979 when the National Bank of Pakistan (Staff) Service Rules, 1973 were applicable. Facts mentioned in paragraph 2 of the plaint that the terms and conditions of the plaintiff's service are governed by Rules 1973 was not denied by the defendant in their written statement. In paragraph 6 of the written statement it is claimed by the defendant-bank that from 1st January, 1980 new service rules became applicable. It was contended by the plaintiff that the rights and privileges enjoyed by the plaintiff under Rules, 1973 cannot be taken away by the 'defendant through subsequent amendment in Rules. In support of his contention he has produced a judgment of Division Bench of this Court in the case of National Bank of Pakistan v. Sind Labour Appellate Tribunal and 2 others as Exh. P.1 in his evidence and contended that on the facts of the case the Rules of 1973 are attracted. He has referred to the following observation of the learned Division Bench of this Court comprising of Ajmal Mian and Abdul Rahim Kazi, J. (as their lordships then were):-- "The upshot of the above discussion is that we hold that the petitioner Bank is carried on by or under the authority of the Federal Government and that the Statutory Rules of 1973 do exist and are applicable. The provisions of the Ordinance of 1968 are, therefore, not applicable to the present case but the services of the employees of the petitioner are governed by the National Bank of Pakistan (Staff) Rules, 1973 . ...It is an admitted position that the action has not been taken under the National Bank of Pakistan (Staff) Services Rules, 1973 but the same has been initiated by the petitioner Bank under the provisions of the National Bank of Pakistan (Staff) Service Rules of 1980 which we have already held above are not the Statutory Rules but can at the most be construed as departmental instructions.
Thus, the action initiated against the respondents by the petitioner, from the very inception, that is, the issuance of charge-sheet and all subsequent proceedings are without lawful authority."
7. As a result of the above discussion, it is held that the Rules 1973 are applicable to the plaintiff's case.
ISSUE NO. 1
8. This issue pertains to the main controversy in the suit. The plaintiff has produced Chapter IV (Discipline and General Conduct) of the National Bank of Pakistan (Staff) Service Rules, 1973 as Exh.
P.
4. The authenticity of these rules was not challenged by the defendant-bank during cross--- examination of the plaintiff and it can be safely presumed that the provisions cited in this Chapter IV were admitted by the defendant-bank. The first violation of this Rule as contended by the plaintiff is the issuance of order of suspension and the charge-sheet-, which were not issued by the competent Authority i.e. President of the defendant-bank. From perusal of Annexures 'A' and 'B', filed with the plaint, it is evident that the plaintiff was suspended vide order, dated 3rd December, 1979 passed by the Senior Vice---President. The letter dated 3rd December, 1979 (Annexure 'A' to the plaint), which has not been denied by the defendant-bank shows that it was an order of the Senior Vice-President. Nowhere it is mentioned that the said letter of suspension was issued under the orders of competent Authority. Likewise, notice of imposition of penalty (charge-sheet), dated 15th December, 1979 (Annexure 'B' to the plaint) which was again not denied by the defendant-bank reveals that the same was issued by the Executive Vice---President. It is not disclosed in this charge-sheet whether the same was issued by the competent Authority, although the defendant- bank has stated in its written statement that all the action(s) against the plaintiff were confirmed by the President of the defendant-bank. It was denied by the defendant's witness that the President is competent to suspend and issue charge-sheet to an Assistant Vice-President. However, he expressed his inability to show through any document that the order of suspension and the charge-sheet were duly approved and authorised by the President of the defendant-bank. This witness had further admitted that the Executive Board of the defendant-bank was the competent Authority to consider the explanation of the plaintiff, dated 30th December, 1979 but further stated that since the Rules, 1973 were amended as such it was not required. Again he admitted that according to Rule 39 of the Rules, 1973 it was the Executive Board competent to award punishment to the plaintiff but again asserted that the said Rules were replaced by the Rules, 1980. He expressed his ignorance about the fact whether Enquiry Officer Saeed Akhtar was appointed by the Executive Board. It was argued on behalf of the defendant-bank that the plaintiff has failed to produce any documentary evidence to the effect that President of the defendant-bank was competent authority in the plaintiff's case and, therefore, this issue is to be answered against the plaintiff. This argument is not tenable as the Board of Directors in their detailed reply vide Exh. P.11 have admitted that "record of the bank shows that these orders were duly approved and authorised by the President of the Bank, who was duly authorised under the Rules to that effect", but no such documentary evidence was produced to substantiate this allegation. In my view this argument equally goes against the defendant-bank. In every Government Department and statutory bodies there are approved lists of authorised/competent officers in respect of different grades of employees. Such lists must have also been prepared in the defendant-bank but neither such list nor the entire rules were produced before this Court in order to reach to a just conclusion.
It is an admitted fact that the plaintiff is out of bank service since 15th December, 1979 and, therefore, he has no access to the bank record. In such circumstances a reasonable explanation is available with the plaintiff for non-production of such important documents but there is no reason why the defendant-bank has not produced these documents, which invites this Court to draw an adverse inference, that in case, if such documents may have been produced it would have gone against the defendant-bank. On this issue I am of the view that the) plaintiff's evidence is more consistent, tangible, reliable and convincing than the defendant's evidence. I am, therefore, of the opinion that in the plaintiff's case it was the President of the defendant-bank, who was the competent Authority and, therefore, hold that order of suspension, dated 3rd December, 1979 and the charge-sheet, dated 15th December, 1979 were not issued by the competent Authority.
9. The second violation pointed out by the plaintiff is that the proceedings and recording of evidence before the Enquiry Officer did not meet the minimum standard prescribed by the law and the relevant rules which had resulted in miscarriage of justice. It is pertinent to note that the plaintiff was demanding a copy of the inquiry report since long but it was for the first the that the said inquiry report was produced alongwith the affidavit-in-evidence of D.W. Shahzad Ahmed Khan. Perusal of this inquiry report indicates that the Enquiry Officer made "surprise visit" to Hyderabad on 29th April, 1980, in order to ensure that the relevant records are not manipulated or the person(s) concerned may not be influenced, therefore, he did not issue any intimation to any one. This report further indicates that he checked the record of Hotel Palace, Gari Khata, Hyderabad, and even examined one witness namely Mehdi Muhammad, who at the relevant the was performing his duties as Hotel Manager. He also examined other bank officers present in the said Hotel premises. From the deposition sheets pertaining to the bank officers namely Muhammad Ismail, Maftoon Ali Khan and Baqar Hussain Zaidi, it is clearly evident that their statements were recorded on some prior occasion anti the plaintiff was allowed to cross--- examine them subsequently during enquiry. Neither the inquiry report, dated 30th June, 1980 nor these deposition sheets indicate that copies of the statements of these witnesses were ever supplied to the plaintiff. There is a note of Enquiry Officer prior to the cross-examination of prosecution witnesses that the witness had endorsed his previous statement and has affixed the date under his signature which is the date of the appearance of witness before the Enquiry Officer.
10. Another important factor of the departmental inquiry is that the allegations against the plaintiff were that he had claimed the room charges o the hotel on higher side showing that it was air- conditioned hotel. The charge sheet indicates the period 15th July, 1978 to 15th November, 1978 when the plaintiff visited Hyderabad for audit purpose. The inquiry report is mainly based- on one of the grounds that Enquiry Officer himself visited on 29th April, 1980, after a lapse of nearly to years and did not find any air---conditioner in that hotel. All the evidence produced by the defendant- bank is to the period pertaining to April, 1980 when no air-conditioner or any good furniture was found in the room allegedly occupied by the plaintiff during his stay in the year 1978. The witnesses produced by the defendant-bank are all its employees and never stayed with the plaintiff. During cross-examination of prosecution witnesses, the plaintiff has suggested several names, who are all senior officers of Audit Department, who at the relevant the stayed with the plaintiff in the said hotel but none was produced by the defendant-bank. During- cross-examination the defendant-bank's witnesses namely Muhammad Ismail, Maftoon Ali Khan and Baqar Hussain Zaidi were found not sure as to how many times-they visited Hotel Palace during the period July/December, 1978. None of the witnesses are consistent on the point of floor, where the plaintiff was occupying his room.
They have all admitted that the word "centrally air-conditioned" was found written on the main door of the hotel. The manner in which the question and answer were recorded without either recording examination-in-chief and without placing earlier statement of witnesses on record, the procedure adopted by the Enquiry Officer was neither proper nor justified. In absence of examination-in-chief, it is difficult to assess whether there was any consistency or inconsistency. I am unable to understand as to how the Enquiry Officer Pr for that matter the appellate authority came to the conclusion that the plaintiff was guilty. I would like to make reference to a decision of the Hon'ble Supreme Court in the case of Jan Muhammad v. The General Manager, Karachi Telecommunication Region, Karachi and another 1993 SCMR 1440 where for the purpose of holding domestic inquiry as provided under Civil Servants (Discipline and General Conduct) Rules, 1973 the following procedure was laid down:-- "... The manner in which enquiry proceedings conducted by way of questionnaire without examination of witnesses in support of charge or defence cannot be approved as it is not consistent with requirements of Rule 6 of the abovementioned Rules. Before the Service Tribunal in written objections filed on behalf of respondents order of compulsory retirement has been defended on other unconnected grounds that appellant was inefficient and unwilling worker. In the enquiry report no comment is made upon plea of appellant that his immediate superior officer recommended that appellant was overburdened with his own work and should not be given additional work..."
11. It is also 411eged by the plaintiff that his explanation, dated 30th December, 1979 was not forwarded to the competent Authority and that the Board of Directors did not refer the plaintiff`s appeal to the Standing Committee of three Directors, as provided under Rule 40 of the Rules, 1973.
These allegations have been refuted by the learned counsel for the defendant --bank. Be that as it tray, I am of the view that the procedure adopted by the learned Enquiry Officer in holding site inspection and examination of witnesses at the place of hotel in absence of plaintiff was in violation of natural justice and has resulted in serious prejudice to the plaintiff and in view of the fact that the procedure of examining the bank's witnesses through questionnaire was not proper and legal. 1, therefore, answer this issue in affirmative.
ISSUE NOS. 4. 5, 7 AND 9
12. I have already discussed several irregularities committed by the Enquiry Officer while discussing Issue No. 3. Again, under these issues several violations of Rules, Regulations and principle of natural justice are involved as alleged by the plaintiff and, therefore, I intend to discuss of them together as these issues are interconnected. The plaintiff has vehemently urged that he was not supplied with the copies of the documents and report of Enquiry Officer to enable him to prepare proper defence and that violation of such rules not only amounts to violation of principle of natural justice but also violation of Rule 39 of the National Bank of Pakistan (Staff) Service Rules, 1973. This Rule provides that taking decision to impose any penalty on an employee under Rule 36 the competent Authority shall call upon such employee to render a written explanation of the charges against him and to show cause by such date as tray be specified in this behalf as to why disciplinary action should not be taken against such employee. This Rule further provides that the explanation together with the charges against an employee shall be submitted to the authority competent to award punishment. In the instant case, I have already held above that the first inquiry report was brought to the knowledge of the plaintiff during examination of defendant's witness before- this Court. It was absolutely impossible for an accused employee to give a satisfactory explanation in absence of first inquiry report as well as it would be also difficult for the competent Authority to justly award any punishment in the absence of a proper explanation- of an accused furnished after compliance of Rules by the Enquiry Officer. Therefore, in my view Rule 39 which provides for supply of copy of first enquiry report to an accused employee, in order to obtain his full and satisfactory reply and further to reach a fair and just conclusion was flagrantly violated.
13. It is pertinent to note that the plaintiff in his pleadings as well as in his evidence has alleged serious violation of Rules, Regulations and Principle of Natural Justice against the Enquiry Officer but despite that the defendant --instead of producing the said Enquiry Officer in evidence has, produced of Shahzad Khan, who is an officer in the Disciplinary Department of National Bank of Pakistan. He was not aware of the facts of the case and ?-merely deposed on the basis of documents. For the above reasons as well as for the reasons discussed under Issue No. 3. I am of the considered view that serious prejudices were caused to the plaintiff by not supplying him the report of Enquiry Officer, which amounts to violation of principle of natural justice and fair play. I am fortified in my view by a recent case of Full Bench of Hon'ble Supreme Court in The Vice-President (Adorn.), National Bank of Pakistan and others v. Basharat Ali and others (1996 SCMR 201). In this reported case Rule 39 of the National Bank of Pakistan (Staff) Service Rules1980 came up for consideration in an appeal wherein the case of A. 611. Sayeed v. National Bank of Pakistan 1989 PLC (C.S.) 249, Sarfraz v. General Manager (Leaf), Pakistan Tobacco Company Limited and others 1988 SCMR 11352 and the case of Dawood Cotton Mills Limited v. Guftar Shah and another PLD 1981 SC 225 were considered. I would like observe here that the provisions of Rule 39 of the Rules, 1973 is quite different to the Rule 39 of the Rules, 1980. As I have already held gnat the Rules, 1973 are applicable in the case of the plaintiff, therefore, I am of the considered view that the Rule 39 of Rules, 1973 did oblige the defendant to supply copies of first inquiry report. In support of my view, I would like to reproduce the principle laid down in the case of Vice-President, National Bank of Pakistan (supra) as follows:-- "10. We may observe that the paramount object of framing of the above rules and the enactment of clause (4) of Standing Order t5 seems to be to provide a fair and reasonable opportunity to an accused employee to defend himself against the charge brought against him by his employer in order to ensure adherence of the principles of natural justice. This will implicitly include the right to have a copy of the charge-sheet with all material particulars relating to allegations on the basis of which charges are founded, to have reasonable the to submit a reply to the charge-sheet, to participate in an enquiry proceeding, to examine the documentary evidence produced in support of the charges, to cross-examine the witness produced by the employer and to produce oral and/or documentary evidence in rebuttal to the evidence produced in support of the charges. If an accused employee is provided opportunity as above, is will be difficult for him to urge that such an enquiry was not fair or that it was violative of the principles of natural justice. However, it may be pointed out that if an Enquiry Officer or an inquiry Committee relies on the facts which were not, at of the statement of allegations in support of the charge or based his or its finding on the material which was not brought- to the notice of the accused employee, any adverse order pursuant to such a finding shall not be sustainable in law.
The question, whether an accused employee is entitled to a copy of the enquiry report, in order to enable him to submit his comments explanation to the same, depends on the language employed in the relevant provision of the statute or rules involved aid also on the factum, whether omission to supply the same has caused him material prejudice . ... We may state that as a general proposition of law, it cannot be held that in every case in which Enquiry Officer is not examined in support of the enquiry report, the same would be fatal to the maintainability of the order passed persaunt to such an enquiry report. It will depend on the facts of each case. If there are serious allegations against the Enquiry Officer as to his impartiality and in support of such allegations, the accused employee has brought some reliable material before the first Court, it becomes incumbent on the employer to produce the Enquiry Officer in order to rebut the evidence brought on record as to the partiality of the Enquiry Officer..."
14. As a result of the above discussion, the Issues Nos. 4 and 9 are answered in affirmative and Issues Nos. 5 and 7 are replied in negative.
ISSUE NO. 10
15. That the plaintiff in past had also impugned his dismissal order, dated 15th September, 1980 as well as order dated 5th April, 1983 through which his appeal was dismissed by the appellate authority in a Constitutional Petition No. D-237 of 1981. The said petition came up for hearing on 11th October, 1989 before a Division Bench of this Court comprising of Ajmal Mian and Salahuddin Mirza, JJ. (as their lordships then were) when the petition was allowed and the case was remanded to the appellate authority with the following observations:-- "...It seems to be an admitted position that the petitioner's appeal was dismissed on 5-4-1983 without personal hearing though the petitioner had prayed for the same in the opening para of the memo of appeal. The above ground has also been taken in para. 28 of the petition which has not been controverted by the respondent either by filing counter-affidavit or otherwise and, therefore, the aforesaid impugned order of appellate Court cannot be sustained in view of the clear pronouncement of the Supreme Court in the case of Sohrab Khan Kalwar v. Secretary to the Government of Sind, Department of Food and others PLD 1980 SC 279 .... ....Mr. Manzoor Ali Khan, learned counsel for the petitioner requests that this Court may direct the appellate authority to consider the legal points raised by the petitioner and to decide the same. In our view there is no need of any such direction as the appellate authority is expected to consider the case as a whole including the legal pleas which may be raised by both the parties...
Exh. P. 9 is the written arguments filed by the plaintiff before the appellate authority which must be presumed to have been considered by the Board of Directors of National Bank of Pakistan.
Presentation of this document was not denied by the defendant-bank. This representation of the plaintiff is spread over 19 pages whereby he has cited several case law, settled by the superior Courts of Pakistan. The defendant has admitted vide Exhs. P.10 and P.11 the presence of plaintiff before the appellate authority on 7th October, 1990 and hearing of his objections. Even the objections of the plaintiff were noted by the appellate authority vide their reply dated 13th January, 1991 (Exh. P.11) but all his pleas were rejected relying on the enquiry report, dated 30th June, 1980.
Following is the conclusion drawn by the appellate authority:--- "A perusal of the Enquiry Report dated 30-6-1980 unmistakably indicates that the Enquiry Officer has been persuaded as much by the evidence of the witnesses as by the conduct of statements of the appellant himself which were found to be unacceptably inappropriate, inconsistent and contradictory by the Enquiry Officer. There was almost overwhelming circumstantial evidence suggesting undeniable guilt of the appellant. The Board cannot lose sight of the fact teat the appellant himself was a Senior Auditor at the relevant the and, therefore, obliged to demonstrate a greater concern than others for compliance with the norms of propriety and good conduct. The Board feel that even if the legal infirmities pointed out by the appellant be accepted on their face value and such evidence of witnesses as has allegedly been recorded improperly be ignored, there are still several good reasons for sustaining the order of dismissal from service dated 15-9-1980 passed against the appellant. Most importantly, there are fatal contradictions/anomalies in the evidence of the appellant himself which have been duly brought into focus by the Enquiry Officer in his report."
16. In my view the observation of the learned Division Bench in the abovementioned petition did require the appellate authority to consider the plaintiff's ease as a whole including the legal pleas which was not done by the appellate authority. They have simply .Followed the observation of the Enquiry Officer despite the fact that the Board went up to the extent of admitting legal infirmities in its own case. Such conduct of the appellate authority, which is comprised of Board of Directors who are all senior bankers and highly educated persons, to deprive a person of his livelihood in such a summary manner without applying their conscious end judicial mind is deplorable. With pain, I would like to further observe that the cases referred in the representation of the plaintiff were also not examined by the appellate authority although they have a well established legal department and they could have obtained their assistance in respect of the law laid down by the superior Courts of Pakistan. Such conduct of the appellate authority is again not in consonance with the rule of fair play and good conscience. I, therefore, answer this issue in affirmative and hold that the hearing of plaintiff's appeal and the manner in which it was disposed of was not in consonance with the observations made by the learned Division Bench of this Court in the abovementioned case.
ISSUES NOS. 8 AND 11
17. On the question of maintainability of the suit, the rule laid down by a learned Single Judge of this Court Saleem Akhtar, J. (as his Lordship then was) in the case of Rana Usman Ali and another v.
National Bank of Pakistan and another (1982 CLC 1234) still holds the field. In this reported case one common suit was filed by several employees of the National Bank of Pakistan who were all Officers Grade-I. Their promotions were cancelled without assigning any reason and without giving them any opportunity of being heard. Thus, they filed a suit for damages, where, after referring to the case of Malik and Haq v. Chaudhry Muhammad Shamsul Islam (PLD 1961 SC 531) and the case of District Board, Lahore v. Agha Muhammad Khan (PLD 1957 Lah. 780), it was held by this Court that an employee is entitled to claim damages for wrongful termination of his services. It was further held that if any change in the condition of service, rank and grade is effected which is detriment to such employee then his legal character is effected and he is entitled to maintain a suit for declaration under section 42 of the Specific Relief Act. In view of my finding that the defendant failed to observe the principles of natural justice as well as Rules, 1973 while dismissing the plaintiff from service it is held that the dismissal of plaintiff from the services of defendant No. 1 was bad in law, mala fide, illegal, against principle of natural justice and void ab initio. It was brought on record of this case that during pendency of the suit, the plaintiff attained the age of superannuation on 5th July, 1987. In view of this admitted fact the plaintiff is entitled for all benefits/salaries/bonuses/increments of which he was deprived, from the date of his dismissal i.e. 15th September, 1980 till July, 1987 as per rules and as prayed vide clause (b) of the prayers clause in the plaint.
18. In so far as the consequential relief is concerned, the plaintiff has prayed for a decree against the defendant-bank for grant of all benefits --arising from the services including salaries, allowances, gratuity, pension, etc. But the plaintiff has not prayed for any specific amount. However, in Paragraph 42 of the plaint while assessing valuation of suit, Rs.9,00,000 is disclosed to be the value of the suit, otherwise the entire contents of plaint as well as examination-in-chief, which was brought on record through an affidavit, are silent on the amount as to how much the plaintiff is entitled to. This suit was filed on 11th May, 1991 and during pendency of suit, plaintiff attained the age of superannuation on 5-7-1987. Now, the question arises is that what relief the plaintiff should be granted in view of the above facts. If a judgment is passed decreeing the suit as prayed then such decree would prove to be inoperative and inexecutable. The Courts are required to pass an effective decree and not merely a paper decree. It is settled law that the Courts are empowered to mould a relief according to the changed and altered circumstances of the case, even if such a relief has not been expressly claimed, in order to do complete and substantive justice provided grant of such relief is within the jurisdiction of the Court. If any reference is needed, see the Full Bench judgment of his Court in the case of Sharaf Faridi and 3 others v. The Federation of Islamic Republic of Pakistan and another PLD 1989 Kar.. 404 at page 439 and for further reference, see Samar Gul v. Central Government and others PLD 1986 SC 35, Alvia Tableeghi Trust and 8 others v.
Mujibur Rehman Alvi and 7 others 1984 CLC 796 and the case of Amina Begum and others v. Mehr Ghulam Dastagir PLD 1978 SC 220.
19. It is already held earlier that the dismissal., of plaintiff by the defendant-bank was illegal and unauthorised and since the plaintiff is entitled to the reliefs prayed, it is observed that the plaintiff is also entitled' to relief claimed by him in para. (b) of the prayer clause. In order to make the decree effective and executable, I am guided by the case Secretary to Government and 4 others v. Kazi Abdul Kafil PLD 1978 SC 242 rel. At 247 and 250 and the case of Sheo Dutt and others v. Pushi Ram and others AIR 1947 Allahabad 229 which was cited with approval in the earlier mentioned case PLD 1978 SC 242 wherein it was held that in a suit for money, relief for accounts could be granted. I therefore, direct the parties to submit their respective accounts within to months for the money due to the defendant as arrears of salary, gratuity, bonus and other benefits payable for the period as mentioned above (para. 17).
20. As a result of the above discussion, this suit is decreed in view of the above direction- with 14% interest from the date of suit till realisation. Further, decree is granted in favour of plaintiff for Rs.
2,00,000 (Rupees to lakhs only) as compensation/damages for the tortious acts of the defendant- banks officer suffered by the plaintiff and with costs.