1991 PLP (C (PLC(CS))

(c) Civil Procedure Code (V of 1908)

S. 115

National Bank of Pakistan Staff (Service) Rules, 1980, R.42-- Revisional jurisdiction, exercise of

Two Courts below having not committed any material irregularity in the passing of judgments and had acted in the exercise of their jurisdiction properly, orders of said Courts could not be interfered with in revisional jurisdiction of High Court. Mr. Bilal A. Khawaja, Advocate for the petitioner has challenged the orders passed by the Civil Judge in the suit filed by the respondent, whose suit was decreed and he was ordered to be reinstated. The appeal against the same has also been dismissed by the First Additional District Judge, Karachi (South). The judgments of the two Courts below have proceeded on the main basis that the dismissal of the respondent on 19-4-1972 was without any show-cause notice and without the necessary enquiry having been conducted by the bank about the misconduct in respect of absence from his duty. The main contention of the learned counsel was that the two Courts below have not taken into consideration the factum that the respondent had not given any explanation about his absence from January, 1972 to April, 1972. However, I do not find that any opportunity of showing cause had been given to the respondent after October 1971, when the last communication passed between the respondent and petitioner-Bank. In September, 1971, the petitioner Bank had asked the respondent to resume duty otherwise he shall be deemed to have vacated his post. Immediately thereafter, came a reply from the father of the respondent that the condition of the respondent was serious and leave may please be extended up to 31-10-1971. Admittedly, there was no communication from the bank to the respondent in respect of this telegram sent by the father of the respondent. Even thereafter, the respondent had sent a medical certificate showing his illness. Of course, the said certificate was not from a doctor, who was on the approved list of the bank, but it was incumbent upon the bank to communicate to respondent that it was not satisfied with the said medical certificate and that the respondent was being treated as absent from duty but no such thing was done. It is common knowledge now that the principles of natural justice are to be treated as the part of every statute unless specifically excluded and of course statutory rules are also governed by the same principles. Mr. Bilal submitted that rule 42(iv)(a) allowed the petitioner not to issue show-cause notice. The said rule 42(i) & (iv) (a) is reproduced hereunder:

"Rule 42(i)--Before it is decided to dismiss an employee or to degrade him to a lower stage in his grade or to stop his future annual increment or to penalise him in any other way for an offence of which he has been reported guilty he shall be called upon to render a written explanation of the charges against him and show cause by such date as may be specified in this behalf as to why disciplinary action should not be taken against him. The employee's statement shall be submitted to the authority competent to award the punishment. (iv) The procedure provided by the foregoing sections shall not apply:-- (a) where the employee concerned has absconded or where in the opinion of the competent authority it is for other reasons impracticable to communicate with him." From the perusal of the above two sub-rules of Rule 42, it is clear that a written explanation of the employee has to be sought by the bank before any adverse action can be taken against him. The exemption is, however, provided where either an. employee has absconded from service or where in the opinion of the competent authority it is for other reasons impracticable to communicate with him. In the circumstances of the present case, I do not find any justification for reaching the conclusion by the bank that the respondent had either absconded from service or it was not practicable to communicate with him for any other reason: In fact the last communication was from the respondent himself and thereafter it was the bank itself, which had not communicated with the respondent and therefore the bank cannot urge that the employee had either absconded or he could not be communicated with. In these circumstances, I do not find any justification to admit this revision application, as I am of the view that the two Judges below have not committed any material irregularity in the passing of the two judgments and they have acted in the exercise of their jurisdiction properly. Revision Application No. 183 of 1987 is dismissed in limine. CMAs No. 857 of 1987 and 858 of 1987 are also dismissed as having become infructuous. H.B.T./N-365/K Revision application dismissed.