2011 SCMR 261 (PLP)

TASSADUQ HUSSAIN JILLANI, J.

Appellant M. Anwar Sidhu joined the National Bank of Pakistan as a clerk/typist in the year 1974 and was subsequently promoted as Officer Grade III. While serving in the City Branch Sialkot, he was proceeded against departmentally on charges of various irregularities allegedly committed by him as a Manager. He denied the allegations but the enquiry culminated in the award of major penalty of dismissal from service vide order dated 26-10-1998. His departmental appeal and appeal before the Service Tribunal remained abortive. Leave was granted by this Court vide order dated 30-10-12-2009 in following terms: "Learned counsel for petitioner seeks leave on the ground that petitioner has an unblemished service record of more than 24 years in the respondent-Bank; that the alleged misappropriation is of Rs.2000 only and that during inquiry petitioner was not given opportunity of personal hearing and even on the departmental appellate stage, he was not given personal hearing which is against the law declared by this Court. He lastly submitted that in similar circumstances, the respondent-Bank had allowed the persons concerned to go on compulsory retirement rather than face the stigma of dismissal from service. Having heard learned counsel for the petitioner at some length, leave is granted, inter alia, to consider whether petitioner was given proper opportunity to defend himself and whether in the facts and circumstances of this case, compulsory retirement was a normal sentence awarded by the respondent-Bank."

2. Learned counsel for the appellant submits that the appellant has an unblemished service record spreading over twenty six year; that one of the charges which led to his dismissal related to embezzlement or personal gain or loss to the respondent-Bank; that he was condemned unheard inasmuch as before awarding the major penalty he was not provided with a copy of the enquiry report which is violative of the law laid down by this Court in Ismail Brothers v. Keval Ram (PLD 1981 SC 545) and Siddique Akbar v. Mian Abdul Majeed (2000 PLC (C.S.) 136). He added that the appellant was not provided with the opportunity of personal hearing either before awarding the punishment. He lastly submitted that the afore-referred irregularities during enquiry would at least make it a case for remand but he would not pray for that and instead would be satisfied if the penalty awarded is converted into compulsory retirement on account of the afore-referred service record.

3. Learned counsel for the respondent-Bank, on the other hand, defended the impugned judgment and referred to the charges levelled against the appellant during enquiry which reflected that on a number of occasions, the appellant withdrew the amount from certain accounts without a proper cheque. He, however, in all fairness added, that the amount was re-deposited by the appellant and no account-holder appeared during enquiry in support of even the temporary embezzlement. On Court query, he could not deny that appellant has an unblemished service spreading over 26 years.

4. Having heard learned counsel for the parties and having considered the submissions made, we are of the view that there was not allegation of personal gain or loss to the bank in the charge-sheet framed against the appellant. The allegation that he had withdrawn various amounts from different accounts on the face of it though could have made out a case for temporary retention of amount-but there was no finding that he made any personal gain or caused any loss to the bank. There is substance in the argument of learned counsel that if he had been provided with a copy of the enquiry report and granted the opportunity of personal hearing, he would have explained the bona fides of his acts but this was not done. A perusal of the enquiry proceedings, the charge-sheet and appellant's reply to each charge demonstrate that he had explanation for each act/omission which according to respondent-Bank itself was temporary retention of the amounts in question.

5. Be that as it may, since appellant is not seeking de novo enquiry or reinstatement and as learned counsel for the respondent-Bank has not denied that appellant has an unblemished service record of 26 years, we are of the view that the penalty imposed on the appellant was not proportionate to the gravity of the charges leveled. In Federation of Pakistan through Secretary Finance v. Khalid Javed. (2009 SCMR 720), in a case pertaining to a financial institution, this Court took a lenient view as there was no proof of loss caused to the institution or personal gain of the employee, the penalty of dismissal from service was set aside and punishment of compulsory retirement imposed by the departmental authority was restored. Respectfully reiterating the spirit of the said judgment, we are inclined to partly allow this appeal and set aside the penalty of dismissal from service and convert the same into compulsory retirement. Order accordingly. S.A.K./M-70/SC Order accordingly.