2025 PLP (C (PLC(CS))

SHUJAAT ALI KHAN, J.

Through this, single judgment, I intend to decide W.P. No.36245 of 2021 (this petition) as well as Writ Petitions Nos.69927/2021 and 9582/2022 (connected petitions) having commonality of law and facts.

2. Unnecessary details apart, the petitioner, in this petition, was issued charge sheet, dated 19.11.2019, containing five charges. The petitioner submitted reply to the said charge sheet and upon conclusion of the proceedings, the petitioner was awarded penalty of demotion to next lower grade with immediate effect in addition to debarring him from holding supervisory position for three years, through Office Memorandum dated 08.06.2020, against which the petitioner filed an appeal but without any success as the same was dismissed by the appellate authority factum whereof was conveyed to the petitioner through communication dated 12.04.2021.

3. Insofar as factual background of W.P. No.9582/2022 is concerned, the petitioner in the said case was issued charge sheet, dated 12.11.2019. The petitioner submitted detailed reply to the allegations levelled in the charge sheet and upon conclusion of the proceedings, the petitioner was awarded penalty of demotion to next lower grade with immediate effect in addition to debarring him from holding supervisory position for three years, through Office Memorandum dated 08.06.2020. Being dissatisfied with the penalty imposed against him, the petitioner filed an appeal but without any success as the same was dismissed by the appellate authority factum whereof was conveyed to him through communication dated 29.10.2021.

4. Now taking up Writ Petition No.69927/2021, I have noted that the petitioner was issued charge sheet on 04.12.2019 to which she submitted detailed reply on 09.01.2020 and upon conclusion of the proceedings, the petitioner was awarded penalty of demotion to next lower grade with immediate effect in addition to debarring her from holding supervisory position for three years, through Office Memorandum dated 08.06.2020. Being aggrieved of penultimate order, the petitioner filed an appeal but without any success as the same was dismissed by the appellate authority factum whereof was conveyed to the petitioner, through communication dated 13.10.2021.

5. Mian Bilal Bashir, Advocate in support of this petition, submits that while imposing penalty against the petitioner and dismissing his appeal both the competent as well as appellate authorities failed to consider that the scam was reported in the Foreign Exchange Department of the National Bank of Pakistan and the petitioner having no concern with the said department, in any manner whatsoever, could not be held liable for any omission or commission in the said department; that mala fide on the part of the bank authorities is evident from the fact that though the petitioner never remained as Incharge Credit Administration Department, National Bank of Pakistan but in the charge sheet the petitioner was portrayed so and that ft impugned penalty is also not justified in view of the pa: service record of the petitioner inasmuch as his performance gauged as very good/outstanding by his superior officers while recording their remarks in his Annual Performance Appraisal.

6. In support of Writ Petition No.9582/2022, Mian Bilal Bashir Advocate submitted that when the petitioner was no signatory of any document which was part of the alleged scam he could not be connected therewith in any manner whatsoever; that though Inquiry Officer was appointed but neither he recorded any evidence to prove allegations against the petitioner nor provided him an opportunity to cross examine any person to defend himself or to discard the credibility of the documents being relied upon by the bank authorities and that performance of the petitioner remained excellent throughout his career, thus the impugned penalty of reduction to lower grade is not justified.

7. Barrister Haris Azmat, Advocate representing the petitioner in W.P. No.69927/2021 argues that since at the relevant time the petitioner was working as Senior Vice President, she was not associated with the alleged scam in any capacity; that non-speaking nature of orders having been passed by the competent as well as appellate authority is established from the fact that neither any reason has been given by the competent authority while imposing penalty against the petitioner nor the grounds agitated in his appeal were attended to by the appellate authority and that during the pendency of the appeal of the petitioner the appellate authority called for the comments of the supervisory officer of the petitioner, who endorsed innocence of the petitioner but while dismissing appeal of the petitioner the said fact was not taken into consideration by the appellate authority.

8. Mr. Umer Abdullah, Advocate representing the respondent-bank in Writ Petition No.69927/2021 submits that at present terms and conditions of service of petitioner are governed under the National Bank of Pakistan Staff Service Rules, 2021 ("the Rules, 2021"). The said Rules being non-statutory in nature, this petition is not maintainable as the Rules, 2021 were enforced after approval by the Federal Cabinet and that if the petitioner was not associated with the scam, her negligence towards performance of her supervisory duties in respect of her subordinate was there.

9. Mr. Abid Hussain Ch., Advocate representing respondent-Bank in this petition as well as in W.P. No.9582/2022, in addition to the arguments put forwarded by Mr. Umer Abdullah, Advocate, submits that since the petitioner in present writ petition has died, the same cannot proceed as the same stands abated. Adds that when the petitioners in both these petitions failed to perform their supervisory rules, no illegality has been committed by the competent as well as appellate authority while passing the impugned orders.

10. Mian, Bilal Bashir, Advocate, while exercising his right of rebuttal, submits that since the question relating to jurisdiction of this Court to deal with any matter arising out of terms and conditions of employees of National Bank of Pakistan was put to rest by the Hon'ble Supreme Court of Pakistan in case reported as Muhammad Tariq Badar and another v. National Bank of Pakistan and others (2013 SCMR 314), the objection raised by Mr. Umer Abdullah, Advocate against maintainability of writ petitions filed by him is not maintainable and that death of the petitioner in this petition is immaterial as this Court has to decide the fate of the orders impugned in this petition.

11. Barrister Haris Azmat, Advocate, while exercising his right of rebuttal, submits that since the petitioners in these petitions were proceeded against under the National Bank of Pakistan Staff Service Rules, 1973 ("the Rules, 1973"), the same being statutory in nature, these petitions are maintainable.

12. I have heard the learned counsel for the parties and have also gone through the documents appended with these petitions as well as those forming part of report and parawise comments in addition to the case-law cited at the bar.

13. Firstly, taking up objection raised by the learned counsel for respondent-Bank against maintainability of these petitions, I am of the view that admittedly the petitioners were charge sheeted in the year 2019 when the Rules, 1973 were in existence meaning thereby that the proceedings against the petitioners were initiated under the said Rules. The competent authority imposed penalty against the petitioners through Office Memorandums, dated 08.06.2020 and at that time the Rules, 2021 were not in existence meaning thereby that all the proceedings were not only conducted but also concluded against the petitioners under the Rules, 1973, hence the question of jurisdiction of this Court is to be determined in the light of the judgment of the Hon'ble Supreme Court of Pakistan Muhammad Tariq Badar case (supra) wherein the question under discussion has been responded in the following manner:- 16.********Before further proceeding with the matter it may be mentioned that according to the settled law a change in the substantive law which divests and adversely affect the vested rights of the parties shall always have prospective application, unless by express word of the legislation and/or by necessary intendment/implication such law has been made applicable retrospectively. In other words the vested and substantive rights of the parties are and should be decided according to the law which was prevalent when the action was initiated and the door of the Court was knocked; and/or the machinery (of the Court) was set in motion. There can be no two opinions that the right of appeal available to a litigant under the law at the time of commencement of the us lis a substantive and a vested right, which cannot be stultified by giving a retrospective effect to a repealing law, to obliterate such right, when otherwise the repealing statute does not ordain its retroactive application or take away such right, expressly or by necessary implication; this is not the position in the present case as section 2A has been simply omitted. If a precedent of this Court is required in this behalf, reference can be made to Manzoor Ali and 39 others v. United Bank Limited through President (2005 SCMR 1785). (emphasis provided)" If objection raised by learned counsel for the respondent-bank is, adjudged in the light of the afore-quoted judgment of the apex Court of the country there leaves no ambiguity that jurisdiction of this Court is aptly attracted. B Considering from another angle, the apex Court of the country in case reported as Haroon-ur-Rashid v. Lahore Development Authority and others (2016 SCMR 931) has held that when an employee is proceeded against under statutory intervention, the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is fully attracted irrespective of the fact as to whether the rules governing terms and conditions of the employee concerned are governed under statutory or non-statutory service rules. B

14. Though learned counsel for respondent-bank, while questioning the maintainability of these petitions, argued that since before the decision of the appeal filed by the petitioners, the Rules, 2021 were in existence, the jurisdiction of this Court is debarred, I do not see eye to eye with the learned counsel for the reason that no law/rules/regulations has retrospective effect until and unless law/rules/regulations was declared in the amending law/rules/regulations which is not position in the case in hand. In this scenario the objection raised by learned counsel for respondent-bank is spurned.

15. Now reverting to the merits of the case, I have noted that the alleged scam took place in the Foreign Exchange Department of the National Bank of Pakistan Main Branch Lahore whereas none of the petitioners were posted in the said department, thus issuance of charge sheet to them without specifying their role with reference to alleged scam was not justified.

16. There is no cavil with the fact that when the supervisory officer fails to perform his/her duties diligently to supervise his/her subordinates it can be attributed the allegation of negligence but when the petitioners were neither immediate authorities nor supervisory authorities of Usman Saeed, the then Vice President, Foreign Exchange Department, National Bank of Pakistan, who was master mind of the scam, the initiation of the proceedings against them were nothing but to make as scapegoat for the misdeeds of somebody else.

17. It is relevant to note that the allegations against the petitioners were that they failed to supervise their subordinates or to perform their duties diligently, the said stance of the bank authorities also stands belied from the documents appended with this writ petition at pages 12 to 18 which relate to grant of special increment/reward in lieu of excellent performance/ achievement award/performance bonus/letter of appreciation. Likewise it has not been denied by the learned counsel for respondent-bank that performance of the petitioner in Writ Petition No.69927/2021 as well as in W.P. No.9582/2022 were found satisfactory by their superiors, while recording their remarks in their Annual Performance Appraisal. Had the petitioners been so negligent, there was no debarring the reporting officers/countersigning officers to note the said fact in their remarks but in absence of said remarks, the petitioners, who have decade of service at their credit, cannot be considered as inefficient or negligent towards performance of their duties.

18. It is important to observe over here that upon filing of appeal by the petitioner in Writ Petition No.69927/2021 the appellate authority referred the matter to her supervisory officer for remarks about her work and conduct. In response, the supervisory officer of the petitioner in the referred case inter alia recommended as under:‑ "She was appointed as RM CAD vide office order No.HO/CMG/ADMN-11/2023 dated 20.07.2011 (post issuance of 178/2011) the JDS were performed according to the circular. Keeping in view of above facts, reported circulars and actualities she may be exonerated from the date of charge sheet." From above, the innocence of the petitioner in the case, under discussion, was also endorsed by her immediate supervisory officer but the appellate authority did not utter even a single word about the said fact which stands proof of the fact that instead of deciding the fate of the departmental proceedings against the petitioners in line with the principle of fair play, the appellate authority proceeded to dismiss her appeal in a mechanical manner.

19. Learned counsel for respondent-bank repeatedly argued that if the petitioners were not associated with the alleged scam, even then they being negligent in performance of their supervisory duties were rightly demoted by the competent authority. In this regard I am of the view that when the involvement of an employee is not established in respect of an incident which was used as an edifice to trigger the departmental proceedings, the proceedings from its inception would be a nullity in the eyes of law and such approach cannot be let un-noticed rather deserves to be deprecated with full vigor.

20. This Court is cognizant of the fact that the bank employees should endeavor to maintain the confidence of the public at large in the banking system of the country by rendering the exceptional services and they should not indulge in any malpractice but at the same time it is equally true that no bank employee should be made to suffer by way of departmental proceedings until and unless his/her role towards any scam is established which is not the position in case in hand. Neither the competent authority nor the appellate authority has referred to any material connecting them with the commission of the scam in any capacity whatsoever.

21. As a necessary corollary to the discussion made in the fore-going paragraphs, I have no hesitation to hold that neither the competent authority was justified to initiate proceedings against the petitioners without associating them with the commission of the alleged scam nor the appellate authority decided their appeals in line with the law on the subject. Consequently, these petitions are accepted and the impugned orders passed by the competent authority as well as appellate authority are set aside.

22. Before parting with this judgment, it is observed that if the competent authority lays hands on any material connecting the petitioners with the alleged scam it would be at liberty to initiate proceedings against them. No order as to costs. MQ/M-68/L Petitions allowed.