2009 SCMR 129 (PLP)

MUHAMMAD MOOSA KHAN LEGHARI, J.

This petition for leave to appeal, is directed against the judgment, dated 22-5-2008 delivered by learned Division Bench High Court of Sindh, at Larkana by which the constitutional petition filed by respondent No.1 against the petitioners was partially allowed.

2. Precisely the facts of the case are, that the respondent was dismissed from service on 28-9-2002 on the charges of reckless lending by sanctioning loans of Rs.4.737 million. On appeal the Federal Service Tribunal by its judgment, dated 24-6-2006 set aside the order of respondent's dismissal and directed his reinstatement mainly on the ground that the enquiry conducted against the respondent was defective. The Federal Service Tribunal, however, allowed the petitioners to conduct a fresh enquiry and left the question of back-benefit dependent upon the result of fresh enquiry proceedings. However, the Tribunal directed that in case of failure of the petitioner to initiate and conclude the de novo proceedings within a period of four months the respondent shall be entitled to all the back-benefits.

3. Consequently the respondent/employee appears to have reported for duty but he was refused to be taken on duty. Resultantly the employee approached the Sindh High Court through Civil Petition No.D-290 of 2006, for a direction to, the petitioner bank to implement the judgment of the Federal service Tribunal. However, during the pendency of the petition, petitioner/bank reinstated the respondent/employee in service on 19-12-2007, which resulted into withdrawal of the said petition. The bank after reinstatement seems 'to have served a fresh charge-sheet upon the respondent which gave a cause of grievance to the respondent/employee to move the High Court of Sindh Bench at Larkana seeking the quashment of enquiry proceedings pleading the action to be illegal, void and violative of the judgment of the Federal Service Tribunal on the ground that the enquiry was . neither initiated nor completed within the stipulated period of four months.

4. Through the impugned judgment, High Court of Sindh, Larkana Bench allowed the petitioner/bank to hold an enquiry but directed them to pay the amount of back-benefits to the respondent/employee for their failure to hold the enquiry within the timeframe given by the Federal Service Tribunal, hence this petition for leave to appeal.

5. We have heard Mr. Haider Hussain, Advocate Supreme Court for the petitioner at great length. He has contended that the enquiry could not be initiated against the respondent within the time frame fixed by the Federal Service Tribunal as he could not be reinstated in service under the bona fide impression that all the pending proceedings and the order passed by the Federal Service Tribunal stood abated consequent upon the pronouncement of judgment in Mubeen-us-Salam and others v. Federation of Pakistan PLD 2006 SC

602. He further contended that after abatement of case of the respondent he did not approach the appropriate forum within the period of 90 days as held in the case of Mobeen-us-Salam (supra). Learned Advocate Supreme Court vehemently argued that the High Court has committed an error of law by depriving the petitioner/bank from conducting an enquiry against the petitioner in the acts of serious misconduct, which has occasioned in serious miscarriage of justice.

6. We have anxiously considered the arguments advanced before us and have consciously perused the material made available on the record.

7. It is an admitted position that the order of dismissal of the respondent/employee was set aside by the Federal Service Tribunal as no proper and valid enquiry was conducted in his case. Indeed looking to the gravity of acts of misconduct alleged against the respondent/employee, the Federal Service Tribunal allowed the petitioner/bank to hold an enquiry. However, the Federal Service Tribunal fixed a time frame of four months for initiating and concluding the proceedings and the payment of back-benefits, was made dependent on the outcome of the enquiry proceedings. The judgment of the Federal Service Tribunal which was delivered on 24-6-2006, was never assailed by the petitioner/bank thus, the same attained finality. In spite of the fact that the respondent/employee reported for duty on 30-6-2006 but was not allowed by petitioner/bank to resume. Eventually the respondent/ employee has to invoke the constitutional jurisdiction of High Court of Sindh to get the judgment of Federal Service Tribunal implemented, and to seek the relief of reinstatement. The action of the petitioner/bank of not complying with the order of the Tribunal under the garb of the verdict of this Court in Mubeen-us-Salam case, apparently reveals serious lack of the elements of bona fide. In fact nothing has been made available on the record to demonstrate resolution on the part of petitioner/bank to display bona fides. The conduct of the petitioner/bank could be easily gauged from the fact that the respondent/employee could get the relief of his reinstatement only by resorting to the constitutional jurisdiction of High Court of Sindh. It will be seen that in order to tackle such indifferent and adamant conduct demonstrated on the part of petitioner/bank, this Court in the case of Muhammad Idrees v. Agricultural Development Bank of Pakistan and others PLD 2007 SC 681, had to issue inter alia the following direction:

"(2) As a result of the above said findings, the following directions were rendered:

(a) The cases which have been decided finally by this Court in exercise of jurisdiction under Article 212 (3) of the Constitution shall not be opened and if any Review Petition, Misc. Application or Contempt Application, filed against the judgment is pending, it shall be heard independently and shall not be affected by the ratio of this judgment. (b) The proceedings instituted either by an employee or by an employer, pending before this Court, against the judgment of the Service Tribunal, not covered by category (a) before this Court or the Service Tribunal shall stand abated, leaving the parties to avail remedy prevailing prior to promulgation of section 2-A of the STA, 1973. (c) The cases or proceedings which are not protected or covered by this judgment shall be deemed to have abated and the aggrieved person may approach the competent forums for redressal of their grievances within a period of 90 days and the bar of limitation provided by the respective laws, shall not operate against them till the expiry of stipulated period. (d) The cases in which the order of Service Tribunal has been implemented shall remain intact for a period of 90 days or till the filing of appropriate proceedings, whichever is earlier. (e) The Service Tribunal shall decide pending cases under section 2-A of the STA, 1973 in view of the above observations. However, if any of the cases is covered by clause `c' (ibid), a period of 90 days shall be allowed to aggrieved party to approach the competent forum for the redressal of its grievance."

8. On examination of the judgment of the High Court it clearly transpires that the High Court has not debarred the petitioner/bank from conducting the' enquiry but has passed directions for completing the enquiry expeditiously preferably within the period of three months with a further direction to the respondent/employee to cooperate in holding the enquiry. However, since the petitioner/bank could not initiate the enquiry proceedings within the period of four months stipulated by the Federal Service Tribunal in its judgment, as a consequence thereof, they have been directed to make payment of back-benefits to the respondent.

9. The above direction of the High Court is neither perverse nor fallacious, rather absolutely just and proper as the petitioners cannot be permitted to seek premium for the acts of apathy, stoicism and impassivity, displayed by them, no case for grant of leave is, thus, made out.

10. As a consequence of above discussion, the petition is dismissed and leave refused. M.B.A./Z-9/SC Petition dismissed.