' AKBAR M. MEMON, (MEMBER).---We intend to decide all the aforementioned 10 appeals by this single Judgements facts and legal points involved therein are of identical nature and the detailed judgment is being rendered in Appeal No,109(K) of 1998, entitled Shafiq Alam Faruqi v. UBL and others,
2. The appellant alongwith appellants, Zahid Umer Farooqi, Muhammad Feroze, Syed Kafil Ashraf and Muhammad Yaqoob, while posted at respondent-UBL Bundar Road Branch whereas appellants, Nisar Ahmed Ansari, Suleman Ali Kazmi, M. Umar Sunman, Muhammad Fayazuddin and Zahid Hameed while posted at Saleh Muhammad Street Branch of UBL, had negotiated different usance bills involving crores of rupees with Eastern Mediteranean Trust and Banking Corporation, a non-correspondent bank due to which the respondent UBL sustained loss to the extent of Rs,94 crores. On coming to know about this mishap, the appellants were given show-cause notice/charge-sheet under UBL Staff Service Rules, 1981 (hereinafter referred as the Rules), which were replied by all of them respectively. Subsequently Inquiry Officer was appointed who conducted the inquiry in "question and answer form" and the Inquiry Officer submitted his report. In the meantime all the appellants were suspended. Subsequently they were reinstated and finally they were dismissed from service by the President of the respondent-Bank on 12-9-1997 and 16-9- 1997. The appellants then filed departmental appeals and when the same were rejected, they filed their respective appeals before this Tribunal. We have heard M/s Niaz Ahmed Khan, Manzoor Ali Khan and Zamiruddin Ahmed, Advocates for appellants and Mr. Shahid Anwar Bajwa, Advocate for respondent-Bank and have perused the record.
4. Mr. Niaz Ahmed Khan, learned counsel for the appellants (Shafiq Alam Faruqi) has vehemently argued that charge against the appellant is to the effect that he had not taken cognizance of the affairs which resulted in the negotiation of usance bills of the sister concern of M/s Tawwakal Group due to which the respondent-Bank was exposed to the loss of millions of rupees. In this connection he has contended that not a single document/voucher has been produced by the respondent which could show that the said document was signed by the appellant. He has contended that the appellant was all along requesting the respondent-Bank for grant of leave as he had developed contract but he was not granted leave and it was, therefore, that he was simply supervising the work and even dictating important letters to others. He has contended that at the most it could be an act of negligence for which such major penalty is not warranted by law. At the same time he was argued that the inquiry so conducted, on the fact of it, is 'full of infirmities as no second show- cause notice was given nor copy of the Inquiry Report was supplied which has caused material prejudice to the appellant. He has contended was since it was a first lapse on the part of the appellant no major penalty was to be given because of his unblemished service record. He has contended that the person responsible for the so called granting permission telephonically or through letter has not been dealt with like other and on the contrary he was paid full benefits at the time of his retirement and even the Auditors who were appointed specifically for the purpose have also not dealt with in accordance with the provisions of law. He has contended that the appellant had 31 years of service at his credit and was on the contrary awarded for meritorious service and when he was specifically making request for grant of leave, he has unnecessarily been punished, as such, it is a case in which he deserves reinstatement. He has lastly contended that his case doesn't come under the doctrine of master and servant, as such, his case is not liable to be thrown away merely on the ground that since the respondent-Bank has no statutory rules, as this view has started changing on the observation that it was a past legacy which is evident from Saleem Mustafa's case. In support of his contentions, he has placed reliance on PLD 1994 SC 72, 1999 CLC 1826, 1998 PLC (C.S.) 1377, 1997 SCMR 1543 and PLD 1997 SC 241
5. Mr. Manzoor Ali Khan, learned counsel appearing for appellants, (Zahid Umer Farooqi, Muhammad Feroze and Syed Kafil Ashraf) has argued that they were working under the control and subordination of the Manager/AVP viz appellant, Shafiq Alam Faruqi, and apparently there appears no negligence no their part. He has contended that charge against the appellants is that they had nogotiated the usance bills with a nonco-respondent-Bank which was not available in the bank almanac but according to him this all was done by them with the written permission of Mr. Hatim Ali, AVP of International Division of the respondent-Bank. He has also contended that no specific penalty was mentioned in the show-cause notice/charge-sheet and during the course of inquiry, the appellants were not afforded chance to cross-examine the witnesses and no final show-cause notice was given and without affording chance of personal hearing, which shows that the provisions of UBL Rules were violated and even copy of Inquiry Report was not provided. He has contended that there is no allegation of embezzlement of funds nor it is said that the appellants had acted for personal gain, as such, their cases required thorough probe which was not done. At the same time, he has contended that the Inquiry Report shows that the last line "he is found of gross misconduct", has been added subsequently in cases of appellants, Zahid Umer Farooqi and Muhammad Feroze which is visible to naked eye as the same is not in line of the original typed material, whereas finding in respect of other appellants is only that of omission. He has lastly contended that the appellants had served the respondent-Bank for number of years and when they had acted with bona fide intention in the interest of respondent-Bank, they could not have been punished in such a manner as has been done to the present cases. In support of his contentions, he has placed reliance on 1994 SCMR 2232, 1987 SCMR 602, 1987 SCMR 1774, 1993 SCMR 1864, 1998 PLC (C.S.) 1377 (Supreme Court) 1995 PLC (C.S.) 890 and 1997 SCMR 1543.
6. Mr. Zamiruddin Ahmed, learned counsel appearing for appellants (Nisar Ahmed Ansari, Suleman Ali Kazmi, M. Umar Suliaman, Muhammad Fayyazuddin, Muhammad Yaqoob and Zahid Hameed) has adopted the same arguments in respect of appellants, Suleman Ali Kazmi, M. Umar Suliaman and Muhammad Fayyazuddin, with an addition that copy of Inquiry Report was not supplied. On this point he has placed reliance on 1987 SCMR 1562. As regard the cases of remaining appellants Nisar Ahmed Ansari, Muhammad Yaqoob and Zahid Hameed, he has contended that the bills which were negotiated by them were paid before the time of maturity, as such, no loss was sustained by the respondent-Bank. He has contended that mere negotiation of the bills is no offence as no loss was sustained by the Bank, as such, the act of the appellants cannot be termed as mala fide one and the same doesn't come within the definition of misconduct. As regard the inquiry so conducted by the Inquiry Officer of the respondent-Bank, he has contended that the appellants were not afforded the chance to cross-examine the witnesses and there was no allegation of misconduct in the show-cause notice/charge-sheet but the same was subsequently termed in the impugned order. He has contended that the services of appellants, Nisar Ahmed Ansari, Muhammad Yaqoob and Zahid Hameed, were ordered to be terminated which "word" is not used in rule 37 which deals with the punishments. He has contended that no allegation of abatement or collusion with others appears to have attracted against the appellants who have served for more than 23/25 years of service which has all gone in waste. He has contended that Inquiry Report reveals that "he is found guilty of misconduct" has subsequently been added in respect of appellants, Suleman All Kazmi and Muhammad Umar Suliaman, which fact is evident from the record whereas others have been found guilty of omission. He has lastly contended that one of the appellant had moved application for pre-mature retirement but the same was not considered and by awarding 'major penalty of dismissal from service and also termination from the Bank's service is nothing but purely abuse of authority as such the appellants are entitled for reinstatement with back benefits.
7. Mr. Shahid Anwar Bajwa, learned counsel for respondent-Bank has given the entire story of removal of 27 officials from service and has contended that three appeals viz. Appeal No,100(K) of 1998, 621 and 622(R) of 1998 have already been dismissed by this Tribunal on 26-2-1999 and 13-4- 1999. In one of the appeals, leave to appeal was not granted by the Hon'ble Supreme Court of Pakistan in Civil Petition No,194-K of 1999. He has contended that in two Branches of respondent- Bank viz. Bundar Road and Saleh Muhammad Street the total loss sustained by the' Bank is to the tone of Rs,94 crores. He has contended that conduct of the appellants was such that they negotiated, with a non-correspondent bank which was not finding place in bank almanac simply on the basis that one of the L.Cs., they got permission from the International Division headed by Hatim Ali, but that too was on the last day i,e, 29-7-1993. He has contended that under the rules every authorization letter is to be signed by two signatories but the letter in question was signed by one signatory i,e, Hatim Ali and the officials viz. The appellants instead of resisting closed their eyes with ulterior motives. Even otherwise he has contended that the approval was for one bill i,e, dated 22-6-1993. He has contended that the appellants had considered Tawakkal Group to be renowned business tycoon though the sister concerns had opened the accounts only in April, 1993, as such, it was not possible for the Bank's officials to have relied upon the worthiness and creditability of the said concern. He has contended the officials did not open their eyes when the payments used to be received from Singapur and not from Mersin, Turkey. Even otherwise he has contended that in fact the letter of Hatim Ali of International Division is taken into consideration then too the proper procedure for securing guarantee was not followed in letter and spirit. He has contended that UBL Rules doesn't provide the provisions of personal hearing or the supply of copy of Inquiry Report as immediately after the inquiry is over, the report is to be submitted to the Authority for final decision of the matter. He has contended that similar view was taken by the Hon'ble Supreme Court in Fouzia Hameed's case reported in 1999 SCMR 1237 and PLD 1981 SC 225. He has contended that the appellants have not been able to make out any case for reinstatement as they are governed by the law of master and servant as has been done in Anisa Rehman's case, reported in 1994 SCMR 2232 and PLD 1992 SC 531. Similar view was also taken in C 1998 SCMR 68 where remedy that the damages and not that of reinstatement. In this connection also he has referred to UBL Staff Service Rules, 1981, where rule 99 deals with the Common law of master and servant. He has contended that natural justice is always demanded in respect of procedure and rights and not regarding remedy. In this connection he has referred to section 21(b) of Specific Relief Act and has placed reliance on 2000 PLC (C.S.) 656.
8. There is no denial of the fact that the appellants had negotiated usance bills with a non- correspondent bank and was not enlisted in the bankers almanac due to which respondent-Bank sustained loss to the tone of Rs,94 crores as certain bills remained unpaid on due dates and even after their maturity. There is no denial of the fact that the sister concern of M/s Tawwakal Group had opened the account in the Bundar Road Branch only in April, 1993, as such, it was not possible for the respondent to have ascertained their creditability and worthiness for doing such a huge business which was done within a span of over one month. The only explanation which has been given by the appellants is that they had such a permission from the International Division of the Bank but this appears to have been done on 29-7-1993 when the show was almost over and in case it is said that Hatim Ali, the same AVP of International Division, used to permit them telephonically, the same cannot be believed as gospel truth as the appellants being responsible officials should have informed the high-ups but this was not done.
9. We have considered the arguments advanced by the learned counsel for appellants and have gone through the numerous Authorities cited by them that proper procedure was not followed in respect of inquiry conducted by the Inquiry Officer and that canons of natural justice required that the appellants should have been served with a second show-cause notice or should have been given chance of personal hearing and that the copy of Inquiry Report ought to have been supplied to them but the same doesn't find place in UBL Rules. On this point we are fortified by case-law reported in 1999 SCMR 1237. Even otherwise three of the similar appeals have already been dismissed by this Tribunal and on the same facts both legal and factual, leave to appeal was refused by the Hon'ble Supreme Court in Civil Petition No,194-K of 1999. As such, we are unable to sit over the judgments on the said decisions already rendered by this Tribunal as well as by the Hon'ble Supreme Court.
10. We are aware of the legal position that in the instant case the theory of master and servant will apply as the respondent-Bank has no statutory rules and on this proposition law stands already settled in numerous Authorities cited by Mr. Bajwa, learned counsel for the respondents.
11. As regard the question that Hatim Ali of International Division was not dealt with in accordance with law and that he was given all benefits after retirement, as such the present appellants be also given the same fair deal, we are of the view that Hatim Ali was arrested by F.I.A. Police and in case he was paid the dues that must have been done before the conducting the inquiry but still his case is pending as has been' reported by Mr. Bajwa, that after getting the bail, he has absconded and has left Pakistan for good.
12. As regard the case of appellant, Shafiq Alam Faruqi, is concerned, we are of the view that no doubt everything was being done under his nose, but on account of his ailment, he was moving applications from time to time for grant of leave and it has come on record that he was not in a position to work properly and was taking assistance of his juniors in the performance of his official duties. We take a lenient view and modify the order of his dismissal to that of compulsory retirement from the date of issuance of impugned order, because in allowing him to work in ailing condition, it was failure on the part of the respondent-Bank not to have arranged a substitute for him. If the Bank would done so well in time, such a critical position would not have arisen.
13. As regard the remaining appellants are concerned, no doubt, some of them have been found by the Inquiry Officer to be guilty of omission, but that point ipso facto does not absolve them of the responsibilities as it was on account of their lethargy as they did not inform their high-ups about the said transaction due to which the respondent-Bank sustained loss to the tone of Rs,94 crores.
Had they opened their eyes earlier and had informed the high-ups, this would not have been the fate of the institution where they were serving since years together.
14. With the above modification in respect of appellant, Shafiq Alam Faruqi, we are not inclined to interfere with the orders of dismissal and termination from service in respect of remaining appellants as on mere technicalities, they cannot be exonerated in respect of the part played by them in doing all this particularly when the Bank was a non-correspondent Bank and was not enlisted in the bankers almanac. Accordingly the rest of the appeals, being devoid of merits fail and the same are dismissed with no order as to costs.
15. Parties concerned be informed through registered post.