2025 PLP 216 (PLC)

SYED SHAHID BAHAR, J.

The captioned appeals have been directed against the judgment and decree passed by the learned Additional District Judge Mirpur dated 12.12.2020, whereby, while decreeing the suit in favour of plaintiff Mst. Shamim Raza, she was reinstated to her service with all the benefits.

2. The facts of the supra titled appeals are that plaintiff/appellant, herein, filed a suit for declaration, cancellation of order dated 08.12.2016, specific performance and restoration to her service along with the recovery of Rs.17,88,10,471/- before the learned Additional District Judge Mirpur stating therein that initially the plaintiff was appointed as Assistant Manager in Chaksawari Branch and later on was confirmed on 28.03.2008 and after taking time and again promotions, she was given numerous awards, however, on 09.08.2016, she was suspended and in this regard a show cause notice was also given to her and in reply, she categorically denied from all the allegations and put her presence before the inquiry Officer then on 08.12.2016, she was terminated from her service and against the said decision, she filed departmental appeal which could not be decided. It has been stated that different accounts were dealt with by different bank officials and loan amount, markup and all the other conditions were sanctioned by the high-ups of the HBL and later on all the transactions were made by the accountholders themselves, so, the plaintiff had committed no any illegal act and she was not cross-examined nor she was given an opportunity to controvert the evidence and all the allegations levelled against the plaintiff are baseless, incorrect and without lawful authority, therefore, the same are liable to be annulled and while accepting the suit, she may be restored to her service and a decree for recovery of Rs.178810471/- may be passed in her favour. After institution of the suit, defendants Nos.12 and 14 filed cognovit, however, defendants Nos.1 to 11 filed written statement by stating that the Court has no jurisdiction to entertain the suit and the suit filed by the plaintiff is barred under Specific Relief Act and after receiving complaints against the plaintiff, she was proceeded and during investigation she was found to be involved in misappropriate, malpractice and allowing fake finances and her reply wąs not satisfactory, moreover, she was also given chances of cross-examination and finally prayed for dismissal of the suit. The learned Cour below in light of pleadings of the parties framed 9 issues and directed the parties to lead their evidence and after necessary proceedings, the learned Court below restored the plaintiff to her service with all the benefits, vide the judgment and decree dated 12.12.2020, hence, the supra appeals.

3. The learned counsel for appellant Shamim Akhter vehemently argued that the respondents on termination of service have caused severe damage of carrier and financial loss to the appellant which she deserved and entitled to recover the salary amount including annual growth @ 13% per annum for her remaining service and other benefits up till the age of 59 years. He further argued that despite specific claim and prayer in the plaint, supported by the evidence, the learned Judge has not awarded the decree for alternate relief, therefore, the impugned judgment and decree is partially required to be modified in this regard.

4. In the cross appeal, the learned counsel filed written arguments wherein, it has been stated that the evidence produced on behalf of Bank is official bank record and has presumption of truth and correctness but the Court below while wrongly interpreting the law issued the impugned decree. It has further been alleged that the plaintiff's suit was time barred and pre-mature as the departmental appeal was not decided and she bypassing the relevant procedure and without waiting the decision upon appeal, approached the learned Court below. It has been averred that the plaintiff faced the inquiry proceedings and the witnesses were fully cross-examined by her and if she had any objections upon the inquiry officer, she may summoned the said officer thorough the Court in order to reach the final conclusion but the Court below kept aside all the procedure and illegally restored the plaintiff to her service, hence, the judgment and decree under challenged is not justified in any manner, which as per stance of the appellants/respondents is liable to be set-at-naught.

5. I have heard the learned counsel for the parties and gone through the written arguments as well as record of the case.

6. The appellant/respondent, HBL suspended Mst. Shamim Raza plaintiff from her services by levelling allegations of fake loan allowed/sanctioned, opening a fake account, activation of an inactive joint account, kept in her custody amount of a customer for 18 days, forged signature of account holders, marking lien on account without confirming physical presence of customer, fake LBC Schedule (Local Bills for Collection) fake discharge stamps of MCB etc, and against the suspension order the plaintiff/appellant, Shamim Raza filed an appeal before the competent authority of the bank but the same was not decided and thereafter, she challenged the proceedings made against here by the bank authority through a suit filed before the learned Court below. The plaintiff/appellant in support of her version taken in the plaint also produced oral and documentary proof and also got recorded her own statement in the trial Court. A perusal of record shows that defendants Nos.12, 14 therein, also filed cognovit, meaning thereby, that they have admitted the stance of plaintiff and besides that the said defendants have also recorded their statements which manifest that no any financial loss was caused to the account holders due to any act of the plaintiff as the accounts were rightly opened, so, it negates the version of the defendants/respondents that after opening the account the plaintiff made the transactions of the amount against the law, so, the statements as well as cognovit of defendants Nos.12 and 14 itself rebutted the claim of bank as the account holders themselves repudiated and contradicted the version of the bank. In the inquiry report neither any sort of nature of loss nor its value has been determined, so, without determination of the quantum of loss, punishing her is totally against the natural justice as well as basic principle of Islam. In rebuttal the defendants/Bank also filed documentary evidence which in my opinion neither supported their claim as after filing the cognovit and statements of the account holders, the same has become futile, ineffective and baseless, which was rightly turned down by the learned Court below. Hence, the appeal filed by the HBL for annulment of the judgment and decree of the learned Court below having no force is liable to be dismissed.

7. Be that as it may, the matter quo maintainability of the civil suit has already stood resolved by the Hon'ble Supreme Court1 Trite that civic Court is a Court of ultimate jurisdiction. Admittedly remedy of writ is not available against the private banks, thus, the only remaining remedy available to appellant Shamim Raza was to approach civil Court. There can be no cavil with the proposition that in terms of Section 9, C.P.C., 1908, the Courts have jurisdiction to try all suits of civil nature, excepting suits of which their cognizance is either expressly or impliedly barred. The well recognized maxim "Ubl Jus Ibi remedium" where there is a right there is a remedy can also referred to in this behalf, by virtue of provisions of aforesaid Section, civil Courts have been conferred with the general jurisdiction to try all suits of civil nature2.

8. It would indeed be anomalous to suggest that a victim of illegal action has to go without redress because sub-constitutional legislation does not lay down the mod for enforcing his rights. For this reason too, we were persuaded to hold that the provisions of Section 42 of Specific Relief Act are not exhaustive seems to be preferable

3. The concept of Master and Servant is being consciously discarded in all spheres due to rapid industrialization the modern trend is to provide safeguard to all kind of employees and efforts are being made to cover more and more fields of employment by statutory provisions and thereby the relationship of Master and Servant is being eliminated even in industrial and commercial organization

4. A civil suit can be filed as a matter of right for the recognition of a civil right, even vires of a law can be challenged before a civil Court5. 7(sic) In appeal filed by Mst. Shamim Raza, she prayed for modifying the impugned judgment and decree on the ground that the respondents may be ordered to pay the amount Rs. 178,810,471/- to the appellant. It is trite that during suspension period the employee is entitled to receive all the benefits like his/her salary and other allowances which she regularly takes during the month, so the learned Court below in this regard has already given its findings by reinstating her service that she was entitled to get all the emoluments during her suspension period. The learned trial Court, in my considered view, has rightly restored her service along with other privileges, so, the Impugned judgment and decree of the learned Additional District Judge Mirpur is purely in accordance with law which needs no interference at all particularly when she stood restored to her job. However, the appellant is at liberty to submit her claim regarding the supra emoluments before the competent authority in light of the subsequent situation. The crux of above discussion is that both the appeals fail, which are hereby dismissed with no order as to costs. MQ/7/AJK(HC) Appeals dismissed.