' SYED EKRAM HUSSAIN JAFRI (MEMBER).---The above appellant had filed this appeal against the impugned order, dated 19-6-1997, whereby he was dismissed from the service, after filing departmental appeal, dated 22-7-1997 (Pages 15 and 55 respectively) within prescribed time.
2. In brief appellant's case is that he was initially appointed as Messenger on 12-5-1970, in the respondents Bank and reached the position of Assistant in the Bank by promotions from time to time when he was transferred from Zonal Office Nawabshah to the Bandhi Branch of the Respondents Bank vide letter, dated 24-6-1996 and was duly relieved from the Zonal Office Nawabshah to report for duty at Bandhi Branch with immediate effect vide Zonal Office letter, dated 25-6-1996 addressed to the appellant, (attached with Annexure-M with parawise comments), whichallegedly reached his hands through post on 18-7-1996 and then he joined the Bandhi Branch where he moved leave application, allegedly on 19-7-1996 duly forwarded to Zonal Office (neither any copy of such an application attached with the appeal nor produced during arguments and respondents denied this allegation specifically in a parawise comments). He drew certain loans from time to time, recoveries thereof is being made in installments. He fell ill thereafter, and did not join at Bandhi Branch as no such duty report is available with the appeal. A domestic inquiry on allegations of unauthroised loans and unauthorised absence from duty from 25-6-1996 was initiated and he was served with show-cause notice besides other, dated 19-3-1997 (Annexure All with appeal) which was replied by him on 25-3-1997. He got the date of hearing of departmental proceedings changed from 22-5-1997 through his application, dated 21-5-1997 to 29-5-1997, and then again he moved an application for extension of period of domestic inquiry through application, dated 28-5-1997, but he was informed by the Inquiry Officer through a letter on the same day that he should attend the inquiry proceedings on 29-5-1997 positively. But he did not attend the same despite service of notice of date of hearing of inquiry proceedings before the Inquiry Officer on him. The Inquiry Officer concluded the proceedings ex parte and submitted an inquiry report to the Zonal Chief, who passed impugned order by imposing major penalty of dismissal of the appellant from respondent's service on 19-6-1997 without serving final/second show-cause notice and without supplying him (appellant) the copies of inquiry proceedings/report and without providing him opportunity of personal hearing. The appellant filed departmental appeal on 22-7-1997 against the impugned order, and then he has brought this service appeal before this Tribunal on 19-11-1997 within the prescribed period receiving no reply to his departmental appeal from respondents. The appellant has alleged that Zonal Chief, who has passed impugned order, is not competent Authority to impose penalty of dismissal on Grade-II employees like appellant and that he has been condemned unheard as neither any opportunity of personal hearing at any stage of the proceedings from 1st show-cause notice/charge-sheet till imposition of the major penalty nor second/final show-cause notice with an opportunity of personal hearing was given to him nor copy of inquiry report was supplied to him, nor he was heard in person by the competent Authority before imposing major penalty of his dismissal through the impugned order. The appellant has, therefore, further alleged that the inquiry proceedings have not been properly conducted and the impugned order is illegal and contrary to law and passed in violation of principles of natural justice and the same is not sustainable at law.
He has therefore, prayed that the impugned order be set aside and he be reinstated with back benefits.
3. The respondents filed their parawise comments and legally pleaded that the appeal is not maintainable as in absence of statutory rule, there is relationship of master and servant between the parties who are supposed to be dealt with through Bank regulations and instructions in respect of a dispute and that the appellant is also pursuing his grievance before NIRC, and before this Tribunal simultaneously which, is contrary to law. The respondents on the factual side in their parawise comments have denied the allegations to the effect that he was transferred mala fidely and was not relived from Zonal Office up to 18-7-1996 on his transfer from Zonal Office Nawabashah to Bandhi Branch and that he gave the duty report there on 18/19-7-1996 and moved any leave application on the said date to the authority duly recommended by the Branch Officer and that any further application for leave or medical certificate was sent to the respondents. The respondents have asserted that the appellant did neither report for duty at Bandhi Branch on any date nor participated in the departmental inquiry before Inquiry Officer despite service of notices of departmental proceedings after service of charge-sheet/first show-cause notice, dated 19-3-1997 and remained absent throughout on an alleged ground of illness. The respondents have admitted that the appellant replied to the show-cause notice/chargesheet. They have asserted that Inquiry Officer concluded the inquiry proceedings in his absence as he (appellant) deliberately avoided his participation in the proceedings. They have asserted that there is no provision of second show- cause notice and affording an opportunity of personal hearing to the employee before imposition of major penalty on the basis of findings of the Inquiry Officer. They have, therefore, pleaded that the appeal is liable to be dismissed with costs.
4. We have perused the pleadings of the parties and relevant documents filed therewith and heard their learned counsel.
5. After repeating the facts and grounds of the appeal during his arguments Mr. Shabbir Ahmed Awan, learned counsel for the appellant has argued that the respondents transferred him from the Zonal Office Nawabashah to Bandi Branch to victimise him being a Union leader and launched the inquiry proceedings with mala fide intention taking benefit of his absence on account of his illness for which he made leave application. He has argued that the respondents very hurriedly served several charge-sheets one after other including the charge-sheet, dated 19-3-1997 without providing any opportunity of personal hearing as required under law and after his reply hurriedly got the inquiry proceedings concluded ex parte during his absence due to his illness and passed impugned order of dismissal of the appellant by Zonal Chief, who is not competent to impose penalty of dismissal, without providing him the copy of inquiry report/proceedings and opportunity of personal hearing and without serving second/final show-cause notice on him before passage of the impugned order. He has, therefore, contended that the impugned order is bad in law and contrary to the settled law and in violation of principle of the natural justice as he has been condemned unheard and the same is liable to be set aside. He has relied upon the law of 1999 TD (Service) 135 (Supreme Court) and 1997 SCM R 1543 in support of his above contentions.
6. Mr. Shahid Anwar Bajwa, learned counsel for the respondents has taken us through the grounds of parawise comments and documents relied upon during his arguments and further submitted that neither the appellant is civil servant nor the UBL (Staff) Service Rules, 1981 relating to the appellant's service conditions are statutory and that their (parties) relationship is of Master and Servant. He has taken us through the UBL (Staff) Service Rules, 1981 and modified Appendix-I, thereto with circulars of 1995 known as "Chatta Commission 1995" and contended that impugned order is passed by the competent Authority as the competent Authority to impose major penalty, passed an order of dismissal of Grade-II employee of the respondents like the appellant is the Zonal Chief per item 12 of Appendix-I to the UBL (Staff) Service Rules, 1.981 duly modified by Staff Circular Nos,839, 842 and 863, dated 6-11-1995, 15-11-1995 and 30-6-1996 respectively, on the recommendations of the Commission constituted by Federal Government, in 1995 (known as Chatta Commission of 1995). His contention appears weighty. He has further argued that there is no requirement of second show-cause notice and personal hearing to the appellant under the Rules applicable to the appellant. He has, therefore, pi( contended that the impugned order is quite valid and the inquiry has been conducted according to law applicable to the appellant. He has relied upon the citation reported as PLD 1981 SC 225, 1981 SCM R 631 and 1988 SCM R 1352 in support of his above contentions and so also the Rule No,39 of UBL (Staff) Service Rules, 1981.
7. In view of the facts of the parties' case we can safely hold that this Tribunal can very competently entertain the instant appeal under section 4 of the Service Tribunals Act, 1973 (hereinafter be referred as the Act) of the appellant, a civil servant for the grievance relating to the terms and conditions of his service as he (appellant) is a civil servant being an -employee of the respondents Bank, cne of the Organizations of the categories mentioned in section 2-A, to the Act, which reads as under:- "(2-A) Service under certain corporation, etc. To be service of Pakistan:---Service under any authority, corporation, body or organization established by or under a Federal law or which is owned or controlled by the the Federal Government or in which the Federal Government has a controlling share or interest is hereby declared to be service of Pakistan and every person holding a post under such authority, corporation, body or organization shall be deemed to be a civil servant for the purposes of this Act."
8. After perusal of the pleading and the documents of the parties and after hearing arguments of their learned counsels we have no hesitation to say that none of the party has either disputed or can dispute the facts to the effect that appellant was working as Assistant, a Grade-II employee in the Zonal Office of Nawab Shah when he was transferred to Bandhi Branch of the respondents vide, orders 24-5-1996 and relieved from Zonal Office on 25-61996 (both documents are available as enclosures to Annexure M with parawise comments) and allegedly reached the appellant on 18-7- 1996 per para.4 of the appeal. And that he allegedly moved leave application on 19-7-1996 and that the appellant remained absent from Bandhi Branch on account of his illness. That a disciplinary inquiry was initiated on account of different charges and acts including the charges of illegal withdrawal of loans and unauthorised absence from duty w.e.f 25-6-1996 and that he was served different charge-sheets on different dates including the charge-sheet show-cause notice, dated 19-3-1997. It is noteworthy that no chance of putting him in written defence and providing him an opportunity of personal hearing was afforded through the show-cause/charge-sheet to the appellant. Admittedly the appellant replied the said charge-sheet on 25-3-1997. Thereafter, undisputedly an Inquiry Officer was appointed. The appellant did not participate/join/appear before the Inquiry Officer in the proceedings on the ground of his illness. Undisputedly the Inquiry Officer concluded the inquiry in absence of the appellant and submitted his report alongwith inquiry proceedings to the Zonal Chief who passed the impugned order by imposing major penalty of dismissal of the appellant from service without serving final/second show-cause notice on the appellant and without affording an opportunity of personal hearing or giving him the personal hearing at any stage during inquiry proceedings or before passing the impugned order/imposing major penalty of dismissal on 19-6-1997 by the competent Authority.
9. After having clear picture of the parties' case we think proper to reproduce Rule 39 of the UBL (Staft) Service Rules, 1981, the relevant law pertaining to disciplinary actions against the appellant for ready reference as under:-- "(39) Disciplinary action--Procedure:---(1) 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 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 shall require the accused within a reasonable time, which shall not be less than 7 days and more then 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;"
10. To appreciate the relevant law and facts of the case it is better to reproduce the charge-sheet, dated 19-3-1997 served upon the appellant and allegedly found proved against the appellant as under:-- "REF: AAM: ZO: PER: ADMN: 209201 Dated 19-3- 1 997 ' ZONAL OFFICE NAWABSHAH.
' MR. LOUNG KHAN CHANNA ASSISTANT ' EMPLOYEE NO.209201 ' UNITED BANK LIMITED ' BANDHI BRANCH.
' Re. CHARGE SHEET ' In continuation of charge-sheets, dated 19-6-1996, 18-7-1996, 24-71996 and 8-8-1996, reply to which has not yet been submitted by you, we further charge-sheet you as under:--
1. Your service, vide Zonal Office Transfer Order No,SAQ; ZO: ' PER: TRANSFER: 96, dated 24-6-1996. Were transferred to UBL Bandhi Branch, and subsequently you were relieved from Zonal Office on 25-6-1996 vide Letter having No,SAQ; ZO:20901:96, dated 25-6- 1996, with an advice to report for duties at our Bandhi Branch with immediate effect, but to date, you have not resumed your duties at UBL Bandhi Branch. Your such act of not obeying superiors/competent authorities orders falls under the purview of discipline and is a misconduct under Bank (Staff) Services Rules.
2. You are absconding/unauthorisedly absent from your duties since 25-6-1996.
3. You came to Zonal Office on 18-7-1996 and forcibly signed the Muster-Roll, for the period 25th and 26th June, 1996 and also on 1st, 2nd, 3rd, 4th, 7th, 8th, 9th 10th, 11th, 14th, 15th, 16th, 17th and 18th July, 1996 despite your transfer from Zonal Office to UBL Bandhi Branch.
' Your conduct of tempering the attendance register/record is an act of highly subversive of discipline and is .a misconduct under Law Bank (Staff) Services Rules.
' You have availed/withdrawn loans/advances forcibly, beyond the limit/entitlement as per rules and without providing any securities and sanction advices, under duress intimidation, coercion and threat of violence and other acts of gross indiscipline, which also are act of misconduct.
Following is the position of your outstanding liabilties:--{{TABLE}} NATURE OF ENTITLEMENT 0/S LIABILITIES ADVANCES AS ON 20-12-1997
(1) Advance Salary Nil Rs,74,000
(2) Advance TA/DA. Nil Rs,54,140
(3) Sundry Debtors. Nil Rs,12,500
(4) House Building Rs,215,000 Rs,498,185 Finance
(5) Transport Finance Rs,40,000 Rs,37,600
(6) Floor Finance Rs, Rs,16,000
(7) Personal. Loan/Finance Rs, Rs .20,800 {{TABLE}} 5.You have not yet replied the charge-sheet served upon you earlier as referred hereinabove, which also falls under purview of indiscipline and misconduct.
' From your abovementioned acts, we understand that you are no more interested to serve in United Bank Limited, you are hereby called upon to reply to the abovementioned charges levelled against you, within seven days from the date of this charge-sheet, that why the disciplinary action under Bank (Staff) Service Rules should not be taken against you.
' We reserve the right to serve the supplementary charge-sheet, if some other irregularities committed by you come to light hereafter.
' This is without prejudice to any other action which the Bank may deem fit to take against you.
(Sd.)
' MUHAMMAS SADIQ SOOMRO VP/ZONAL CHIEF."
11. The reply of the appellant to the above charge-sheet, dated 19-5-1997, furnished on 25-3-1997 for facility of reference is also reproduced as under:-- "To, ' The V.P./Zonal Chief, ' United Bank Ltd, ' Zonal Office, Sakrand Road, Nawabshah.
REPLY TO CHARGE SHEET, DATED 19-3-1997 Respected Sir, I am in receipt of charge-sheet bearing REF:ADM:ZO:AAMN:20 9102, dated 19-3-1997, the reply of which is submitted as under:--
(1) That the charge-sheet, dated 19-6-1996, 18-7-1996, 24-7-1996 and 8-8-1996 were received by me and were duly replied as those pertained to the loans availed by me.
(2) That after my transfer from Zonal Office, to Bandhi Branch, I resumed my duty at Bandhi Branch, and submitted leave application, which was duly recommended by the Branch Manager, as I could not resume my duty thereafter, due to my illness, and I am continuously under the treatment of the Doctor, as soon as I am declared fit, I will resume my duties and I also request your goodself to sanction my leave application already submitted by me as I am not absconding from my duty but I am prevented by the act of nature to perform my duties.
(3) That upto 18-7-1996, I was not relived from Zonal Office, and no such endorsement was contained in the Muster Roll, and I accordingly signed the Muster. Roll, as I had till then not resumed at Bandhi Branch, and I have not committed any act of indiscipline or misconduct.
(4) That all the loans were granted to me after those were duly sanctioned by the Competent Authority including your goodself and all the payments were made through the vouchers, and I have not taken out any amount forcibly as is falsely alleged, and there arises no question of duress, intimidation, coercion or threat which was even otherwise not possible.
(5) That the allegations contained in the charge-sheet, or specifically denied and moreover the same do not constitute misconduct, and no disciplinary action is thus warranted by law.
(6) That there are 100 of employees in the Bank who have availed much more loans then me but none has been issued such charge-sheet, and the present charge-sheet has been issued to me only in order to victimise me due to my trade union activities, which also amounts to unfairable labour practice as denied under section 15 of the Industrial Relations Ordinance, 1969, and I reserved my rights to approach the Court of Law, for the redressal of my grievances.
' In view of the above submissions it is most humbly and respectfully that your goodself may very kindly be pleased to withdraw the above charge-sheet, and I assure your good self to resume my duties as soon as I am declared fit by the Doctor to resume duties, and I further assure your goodself that I will, make the payment of the outstanding loans in instalments as I have been paying and the same can also be as usual deducted from my salary.
' I hope that your honour will be kind enough to withdraw the this charge-sheet.
' Yours obediently, (Sd.)
(LOUNG KHAN CHANNA )
' Dated: 25-3-1997.
12. It is quite clear from the plain reading of sub-rule 2(a), of Rule 39 of the UBL (Stall) Service Rules, 1981 (hereinafter be referred as the UBL Rules) that it required the appellant (accused) inter alia to put in written defence and to provide a chance of personal hearing in the words "whether he desires to he heard in person". Meaning thereby the appellant was to be provided an opportunity of his defence and personal hearing as required by the above UBL Rules.
13. It will be seen on bare reading of the contents of the charge-sheet, dated 19-3-1997 reproduced above, that no such opportunity was provided by the respondents (Inquiry Officer) though it was a requirement of the UBL Staff Rules at this stage.
14. It is also clear from the reply of the appellant, the contents of which are reproduced above, that the appellant has denied the charges levelled against him and pleaded that the charges/acts are based on mala fides and that he was sick and such leave application was given and the same was not attended to by the respondents.
15. Apart from above it has been the undisputed and proved fact on the part of respondents, that the appellant was neither provided statement of allegations with the charge-sheet/first show- cause notice, dated 19-3-1997 nor he was given final/second show-cause notice nor he was given opportunity of personal hearing nor he was heard in person at any stage during proceedings or before the imposition of major penalty or passage of the impugned order of his dismissal on the basis of inquiry report, the copy of which was also not supplied to the appellant.
16. In the above circumstances, it was held quite necessary to meet the ends of justice and avoid prejudice to the appellant per well-settled law of PLD 1980 SC 176 and 1996 SCM R 201 that the copy of inquiry report be supplied to the accused. At the same time service of final/second show-cause notice on the appellant is held to be mandatory one per our esteemed Supreme Court citation reported as 1999 TD (Service) 135.
17. In view of the admitted position of the case as mentioned above to the effect that appellant has not been provided an opportunity of personal hearing at any stage of the inquiry proceedings viz the personal hearing opportunity at the stage of charge-sheet/first show-cause notice as requires under sub-rule 2(a), of the UBL Rules, reproduced above, nor before passing an order of imposing major penalty of dismissal on the findings/report of the Inquiry Officer by the Zonal Chief/competent Authority in terms of cardinal principle of audi alteram partem (no person should be condemned unheard), we see that arguments of learned counsel for the respondents cannot be accepted to the effect that the principle of audi alteram partem is not applicable to the instant case as the rules viz; UBL Staff Rules, not statutory one and that the same can be applied only in the case of the civil servants who are dealt with under the statutory rules, as our Supreme Court has held in 1997 SCM R 1543 in para. 11 at page 1551 that the above cardinal principle is now-a-days quite liberally applied by the Courts to the cases in which there is no statutory requirement of personal hearing. The relevant portion of para. 11 at page 1551 of the citation is reproduced as under:-- "(11)By now it seems to be a well-settled principle of law that the question, as to whether a regular inquiry is to be held in a case of misconduct against an accused civil servant/employee or not, will depend on the facts of each case. We may observe that while considering the above question we should keep in mind the fact that the concept that no person should be condemned unheard (i,e, audi alter= partem) has acquired new dimensions with the passage of time. Nowadays the Courts apply above cardinal principle of jurisprudence more liberally even to the cases in which there is no statutory requirement of personal hearing. Furthermore, the right of personal hearing does not mean simpliciter hearing, but it should be fair. What is a fair hearing, it will depend on the facts of each case. There cannot be any general criterion of universal application."
' In view of the peculiar circumstances of the case of the appellant the well-settled law of 1997 SCM R 1543 reproduced above is applicable to the instant case.
18. In view of the peculiar circumstances and the facts of the instant case we see that the law laid down in PLD 1981 SC 225, 1981 SCM R 631, 1988 SCM R 1352 and PLD 1996 SC 787 as relied upon by the learned counsel for the respondents, is not applicable to the instant case where the appellant has been condemned unheard.
19. For the above reasons and the discussion on fact and law, we hold that the appellant has been condemned unheard and the impugned order of dismissal of the appellant is liable to be set aside.
20. We, accordingly, being guided by the well-settled law of 1997 SCM R 1543 and 1999 TD (Service)
135, set aside the impugned order, dated 19-6-1997 and accept the appeal and reinstate the appellant in service. However, the respondents are at liberty to hold fresh de novo regular inquiry according to law with provisions of opportunity of personal hearing at every stage. The benefits of the intervening period will depend upon the findings of the said inquiry. If the inquiry is not initiated and completed within the period of three months henceforth, the appellant will be entitled to the grant of leave due for the intervening period, from the date of his dismissal.
21. No order as to costs. Parties be informed accordingly.