ABDUL HAMEED KHAN KHATTAK (MEMBER).--By means of this appeal the order dated 23-11-1978, whereby the appellant was dismissed from service, stands assailed.
2. Facts to be culled from the pleadings of the parties are that the appellant was employee of United Bank Ltd. and remained posted as Manager during the year 1977 of the Branch located at Contractors Colony, Tarbella and he in that capacity had issued two guarantees signed jointly with Mr. Naseem Ahmed Dar, his second officer, each for Rs,25,00,000 and for Rs,16,72,906 respectively on behalf of M/s Pakistan Trading House, Lahore and M/s. Mid-West Corporation, Lahore favoring Pakistan Ordnance Factories, Wah Cana. for the mobilization of advance and while issuing these guarantees, appellant was alleged to have committed some irregularities of serious nature which find mention in the charge sheet dated 20-9-1978 served upon him. By means of this charge-sheet the appellant was called upon to explain as to why and under what circumstances such irregularities were committed by him rendering the Bank for liable for such a huge amount and as to why disciplinary action should not be taken against him but he failed to submit his explanation within the stipulated time thus, he was suspended from service on 2-10-1978. He submitted his explanation to the charge-sheet on 8-10-1978, which was not found satisfactory by the competent Authority who dismissed him from service with effect from 23-11-1978. He assailed his dismissal order before the Hon'ble Peshawar High Court by bringing Writ Petition No, 54 of 1980 which was, however, dismissed on 23-6-1987 against which he preferred Civil Petition No, 215(R) of 1987 in the Humble Supreme Court which was also dismissed on '22-3-1988 and this judgment is reported as 1988 SCM R 926.
3. As a result of insertion of section 2-A on 10-6-1997 in the Service Tribunals Act, 1973, the appellant preferred appeal before this forum bearing No, 1054(L) of 1997 on 29-11-1997 which was dismissed on 31-12-1997 on the point of jurisdiction but as in many other appeals of the like nature, the Humble Supreme Court inter alia held that provisions of section 2-A (ibid) were to have retrospective effect hence appellant preferred the present appeal bearing No, 498 (L) of 1998 on 23-5-1998 wherein he assailed his dismissal order on various grounds mentioned therein and prayed for his reinstatement with all back benefits.
4. Respondents hotly contested this appeal by maintaining that in view of the aforementioned pronouncements of the Hon'ble High Court and Humble Apex Court, this matter stood decided once for all and in view of the doctrine of res judicata the instant appeal was not maintainable and that provisions of sections 2-A and 4 of the Service Tribunals Act, 1973 were not applicable to the facts in hand.
5. The learned counsel for the respondents at the very outset raised preliminary objections of appeal being barred by the principle of res judicata and also being time-barred.
6. Admittedly after his dismissal from service, the appellant agitated the matter before the Hon'ble Peshawar High Court by bringing Writ Petition No, 54 of 1980 which was dismissed on 23-6-1987 and reported as PLD 1987 Peshawar 144 .(DB) and the concluding lines of the judgment are as under: "The writ petition is without merit and is, therefore, dismissed."
In the body of the judgment it was inter alia held that the service rules governing the employees of respondent-Bank including the petitioner having been framed under Articles 121 and 121 (22) of the Memorandum and Article of Association of United Bank Ltd. read with section 11 (4) of the Bank (Nationalisation) Act, 1974 were not the Statutory Rules and for that reason violation thereof, though not complained by the petitioner, could not be called in question in writ jurisdiction and the rule of "Master and Servant" stood attracted in the case. To the same effect are the findings arrived at by the Hon'ble Supreme Court during the hearing of Civil Petition No, 215(R) of 1987 preferred by the present appellant against the judgment of Peshawar High Court.
7. It is well-established principle that where the relationship between a Bank and its employee was that of Master and Servant, in the event of wrongful termination of such employee, the only remedy available to the employee against such wrongful termination of his service was a suit for damages and not a relief for reinstatement. We are supported to hold this view by putting reliance on the celebrated judgments reported as 1998 SCM R 60 and 1998 SCM R 68. It is to be noted that in the later precedent, the termination was also relating to an employee of United Bank Ltd.
8. It is, thus, abundantly clear from the above that the appellant was not a civil servant at the time of dismissal rather the relationship between the parties was of Master and Servant and the thumb rule of hire and fire could conveniently be pressed into service by the Master-Bank and against such dismissal order, the only remedy available to the appellant was of bringing a suit for damages in the Civil Court but he could not ask for reinstatement into service but he having failed to bring a suit for damages seems to have missed the train and it was too late in the day to knock at the doors of this forum. The matter seems to be a closed chapter for him as he had been approaching incompetent forums for redressed of his grievances throughout and it is well-settled legal principle that pursuing legal remedy before incompetent forum does not justify condensation of delay as was invariably held in PLD 1983 SC 385; 1985 SCM R 333; 1985 SCMR 890; 1991 SCM R 1841 and 1997 SCM R 1167. The application made for condensation of delay on the score of appellant having remained busy in pursuing the remedy before High Court and Supreme Court is of hardly any avail to him as he seems to have been dialing at the wrong numbers.
9. The matter of dismissal of appellant attained the status of a closed chapter on 22-3-1998 when his Civil Petition No 215 (R) of 1987 was turned down by the Humble Supreme Court and thereafter, this matter cannot be considered under any stretch of imagination to have remained dormant with a view to enable the appellant to wake up from slumber and approach this Tribunal on the fine morning of 29-11-1997 whereas even section 2-A (ibid) was inserted as early as 10-6-1997 and as no suit, petition. appeal etc., of appellant was pending adjudication before any forum on 10-6- 1997, thus, even the provisions of sections 4 or 6 of the Service Tribunals Act, 1973 were inapplicable and the instant appeal brought on 29-11-1997/23-5-1998 to challenge the dismissal order dated 23-11-1978 was incompetent. The contention of the learned Counsel for the appellant that as the status of civil servant was conferred upon the appellant on 10-6-1997 hence a fresh cause of action arose and limitation would commence running from this date, seems to be devoid of force. At the time of passing of this impugned order of dismissal the relationship between the parties was simply of Master and Servant in view of aforementioned judgments of the Humble High Court and Supreme Court in this case and many other cases hence, at the cost of repetition, the only remedy available to him was that of a suit for damages and no relief in the form of reinstatement in service could be granted to him. If the contention of learned counsel for the appellant is allowed to prevail that limitation is to run from 10-6-1997 when section 2-A (ibid) was inserted in the Service Tribunals Act, 1973 and further that a fresh cause of action accrued in favour of the appellant arming him to assail the impugned dismissal order after about 10 years, we are afraid it will be tan amounting to opening of pandora box and even employees of such banks/corporations who were dismissed 25- 30 years back would be rushing to this Tribunal under the umbrellas of section 2-A (ibid) but this recourse would not be warranted in law.
10.For all the aforesaid reasons, the appeal being incompetent, is hereby dismissed with costs.
11. Copies of the judgment be sent to all the concerned through registered mail.