2005 PLP (C (PLC(CS))

The learned counsel 'has contended that an inconsistent stand as to the petitioner's termination has been taken by respondent Habib Bank Ltd., he first indicating that the termination had come about on account of the Petitioner's arrest on a criminal charge and the second because the employee at a later stage claimed to have applied the rule of master and servant. In either case, we are of the view that the employment of the petitioner stands upstaged to that of a civil servant and that has come about on account of certain amendments in law. We have already said elsewhere that such amendments operate from the date pf the parent statute. On all these premises the Petitioner's exclusive remedy lies in the Service Tribunal. Accordingly, while we dispose of the matters listed above in terms the petitioner, apart from other available pleas, would be free to apply for condonation 'under section 5 of the Limitation Act for the reasons that the Petitioners as from 22‑4‑1997 to date has been pursuing this Petitioner diligently and in good faith. Order accordingly. (Sd) Wajihuddin Ahmed Chief Justice (Sd) Raja Qureshi Judge." Appellant then filed the C.P.L.A. No.152 of 1998 against the High Court's order dated 26‑11‑1997 passed in C.P. No.D‑1879 of 1997 which was dismissed by the apex Court vide its judgment dated 4‑6‑1998. The Hon'ble Supreme Court while dismissing the C.P.L.A. referred to above, observed as under:‑‑ "......The High Court was, therefore, right in disposing the appeal with the observation that the Petitioner may approach the Tribunal." After the Appellant's C. P.L.A. was dismissed by the apex Court, he, has approached this Tribunal.

16. The circumstances leading to the arrest of the appellant and his termination by the Respondent‑Bank and subsequent litigation has been detailed in the preceding paras. We will, therefore, address the contentious issues which are very briefly highlighted hereunder. The learned counsel for the appellant stated that the appellant's termination was because of his arrest in pursuance of F.I.R. No.98 of 1994 dated 26‑12‑1994 which, as stated earlier, has been quashed by the Hon'ble High Court vide judgment dated 20‑12‑2003. As stated above, the services of the Appellant were terminated on 26‑3‑1995 after arrest of appellant by the F.I.A. on 26‑12‑1994 on the basis of aforementioned F.I.R. The termination, as is evident, was done with undue haste and without ascertaining the correct facts which culminated in Appellant's arrest. The Respondent‑Bank should have exercised prudence and investigated the circumstances which led to the arrest of the Appellant and this was all the more necessary as the learned counsel for they Respondents himself admitted while submitting his arguments that the', Bank had not initiated any criminal proceedings against the‑ Appellant and nor did it have anything adverse against the Appellant. Under such: situation, it was, incumbent upon the Bank to go slow on the Appellant's termination as the Appellant had been promptly placed under suspension on 27‑12‑1994 i.e. on the very next day of his arrest. It is also difficult to comprehend how could the Respondent‑Bank assume on the very next day of the Appellant's arrest that his post could not be kept vacant for such a long time. The Bank should have waited for some reasonable time to know the outcome of the fake criminal charges against the Appellant before finally terminating his services. Appellant occupied a very senior post in the hierarchy of the Respondent‑Bank and he should have been proved assistance particularly when the Respondent‑Bank had not initiated the criminal proceedings against him. We feel that the Bank has acted with unwarranted haste which, in all probability, was because of the pressure from the ruling party.

17. It would now also be relevant to recall the letter of the Respondent‑Bank dated 26‑3‑1995, reproduced earlier, whereby his services were terminated. Para‑2 of the said letter indicates that it was on "the grounds of lack of confidence" that the Appellant's services were terminated. The thrust of the said letter is on Bank's lack of confidence on the Appellant rather than on his arrest because of criminal allegations. Respondent's changed their position on the Appellant's termination and in their letter dated 23‑8‑1995 through their Industrial Relations Advisers M/s. Shahid Anwar Bajwa and Company intimated that the services of the Appellant were terminated on the basis of "Master and Servant" relationship. The said letter‑reads as under:‑‑ "M/s. Badar Iqbal & Co. Attorneys at Law, Alnoor Building, 43, Bank Square, Lahore Dear Sir, Under instructions from our clients, Messrs Habib Bank Limited, Habib Bank Plaza, I.I. Chundrigar Road, Karachi, we address you asunder:

1. Our clients acknowledge receipt of your letter No. SIC/143/95 dated July 4,1995.

2. Mr. G.M. Khairati's services were terminated not by way of punishment but by the exercise of con1mon law right of master to terminate the contract of services at any time. Such a right is also available to the management of the Bank under .the Habib Bank Limited (Staff) Service Rules, 1981. There was no element of punishment involved in termination.

3. When the services of your client were terminated, he was informed that he is entitled to receive three months salary in lieu of notice period of three months as prescribed under the rules and in accordance with the terms of employment.

4. Therefore your clients request for reinstatement cannot be accepted and the same is hereby rejected. Very true yours For: SHAHID ANWAR BAJWA & CO. Advocates. " The perusal of the contents of the above letter clearly indicates that the Appellant's services were terminated on the basis of "Master and Servant" relationship and by way of punishment. There has been shift in the Respondent‑Bank's position vis‑a‑vis Appellant's termination, such fluctuation in the Respondents' stance does not impart credibility to their action against the Appellant.

18. The learned counsel for the Respondents articulating his arguments raised the issues of limitation, the principle of "Master and Servant" and that the Appellant has filed appeal under section 6 of the Service Tribunals Act of 1973.

19. We will first address the issue of limitation. The learned counsel for the Respondents contended that as soon as the Service Tribunals Act of 1973 was amended and section 2‑A was inserted therein all the proceedings relating to service matters pending in any Court abated automatically and that the Appellant should have immediately approached the Federal Service Tribunal without waiting for any abatement order by the High Court where his Constitutional Petition was pending. He further argued that the Hon'ble Supreme Court's order dismissing Appellant's C.P.L.A. No.152 of 1998 was released on 4‑6‑1998 and Appellant approached this Tribunal on 14‑9‑1998 i.e. after more than thirty days' limitation period. The rulings cited by the learned counsel for the Respondents on the issue of limitation have already been referred to in preceding paras. In rebuttal the learned counsel for the Appellant also cited rulings and stated that there was no limitation against a void order and also referred to the judgment of the Hon'ble Supreme Court in the case of Sui Gas Employees reported in 2003 PLC (C.S.) 796 and 2004 SCMR

146. The circumstances of the case very clearly indicate that an honest anti upright banker who had impeccable record and was holding a very senior post in the hierarchy of the respondent‑Bank was unethically and criminally victimized by Mr. Shahid Nazir, an MNA on the basis of false F.I.R. which was subsequently quashed by the Hon'ble High Court. The trauma of arrest on such an officer must have, we are sure left very deep and indelible scars on the mental canvas of the Appellant. We are surprised that he has still not lost his balance of mind through he must have been emotionally shattered due to great injustice perpetuated on him. Furthermore, Appellant while pursuing his case was not indolent but was diligently trying at different levels to get relief. Had he slept over and not moved Hon'ble High Court and the apex Court one could presume that the Appellant had been lethargic in pursuing his case. Under such circumstances and in exercise of vested discretion we condone the delay in filing this appeal and while doing so we are strengthened by the observations of their Lordships in the case of Sui Gas Employees reported in 2003 PLC (C.S.) 796 while upholding the discretionary powers of the Federal Service Tribunal' regarding condonation of delay have ruled as under:‑‑ "Besides above references, decision of the cases on merits have always been encouraged instead of non‑suiting the litigants for technical reasons including on limitation. In this behalf good number of precedents can be cited where question of limitation was considered sympathetically after taking into consideration the relevant facts. Reliance is placed on the cases of Muhammad Yaqub v. Pakistan Petroleum Limited and another (2000 SCMR 830), Messrs Pakistan State Oil Company Limited v. Muhammad Tahir Khan and others (PLD 2001 SC 980). Teekam Das M. Haseja, Executive Engineer, WAPDA v. Chairman, WAPDA (2002 SCMR 142). There are cases where even delay has been condoned by the Tribunal without receiving application from the appellant but no interference was made by this Court on the premises that Service Tribunal had passed order in exercise of its discretionary powers. In this behalf reference may be made to the case of WAPDA v. Muhammad Khalid (1991 SCMR 1765). Relevant para. therefore reads as under thus:‑‑ ".....................As regards the question that no application for condonation of delay had been filed by the respondent, the matter being one of the discretion, the finding of the Tribunal cannot be set aside, on a technicality alone .." In the same ruling their Lordships while dealing with the issue of limitation have also observed that technicalities should not be used to non‑suit the parties. 'In the latest ruling of the Hon'ble Supreme Court (2004 SCMR 146) cited by the learned counsel for the Appellant where the two years' delay condoned by the Federal Service Tribunal has been upheld by the Apex Court. Their Lordships in this judgment ruled as under:‑‑ ".......... It hardly needs any elucidation that sufficiency of cause for condonation of delay being question of fact is within the exclusive jurisdiction of learned Federal Service Tribunal and once the discretion concerning condonation of delay was exercised judiciously by the Service Tribunal it cannot be disturbed by this Court without any jurisdiction which is lacking in this case In this regard we are fortified by the dictum laid down in Syed Ali Hasan Rizvi. v. Islamic Republic of Pakistan (1986 SCMR 1086), Muhammad Azhar Khan v. Service Tribunal, Islamabad (1976 SCMR 262), Water and Power Development Authority v. Abdur Rashid Dar (1990 SCMR 1513) and Sher Bahadur v. Government N.‑W.F.P. (1990 SCMR 1519). The conclusion arrived at by the learned Federal Service Tribunal being strictly in consonance of law and being well based does not warrant any interference. The petition being meritless is dismissed and leave refused." We are also fortified by the ruling of the Hon'ble Supreme Court reported in 1991 SCMR 1765 wherein their Lordships ruled as under:‑‑ " .. As regards the question that no application for condonation of delay had been filed by the respondent, the matter being of one of discretion, the finding of the Tribunal cannot be set aside on a technicality alone ." We also rely on Hon'ble Supreme Court's ruling reported in 2003 PLC (C. S.) 488 on this point. As such the respondent's objection on the round of limitation is overruled.

20. The issue of "Master and Servant" was eloquently argued by the earned counsel for the Respondents but we do not subscribe to this stance. The Apex Court in its various rulings have ruled against the efficacy of this principle of "Master and Servant". The Hon'ble Supreme Court in the case of Muhammad Ashraf v. D.G. Multan Development Authority reported m 2000 PLC (C.S) 796 ruled as under:‑‑ "We also find that concept of law of Master and 'Servant does not emanate from any Constitutional provision or statute or Holy Quran and Sunnah by the Holy Prophet (P.B.U.H.)" In the case of Muhammad Akram v. Mst. Farman Bi (PLD 1990 SC 28) their Lordships on the point of "Master and Servant" observed as under:-- "The resort to a rule of common law of English in preference to the one of Pakistan Law or a rule of Islamic law or jurisprudence; or for that matter, the Islamic Common Law, is not now possible under the Pakistan Constitution and legal set up. Similar ruling was also given by the Apex Court in, its decision reported in PLD 1994 SC 72 as under:‑‑ "(b) Islamic Jurisprudence‑‑ "‑‑‑‑Master and servant‑‑‑Contract following unilateral and arbitrary reduction of salary without any fault having been proved against the employee is itself repugnant to Injunctions of Islam‑‑‑Unbridled power in the hands of the employer to convert the salary into a `subsistence grant' amounts to exploitation which is termed as `Gharar'. " In the latest ruling of the Hon'ble Supreme in the Sui Gas Employees case reported in 2003 PLC (C.S.) 796, this principle of "Master and Servant" has also been repelled. After the observations by the Hon'ble Supreme Court in this ruling we do not consider the concept of "Master and Servant" relationship any more valid as there is no tenable ground on the basis' of which it can be sustained in this Country. This practice originates from the English Law and after very express Constitutional provisions, Civil Servants Act of 1973, principle of natural justice so emphatically enunciated by the Apex Court in numerous judgments and Injunctions of Islam we consider the principle of "Master and Servant" relationship absolutely below the human dignity and we, therefore, do not find it sustainable. It is high time than the pleadings on the basis of "Master and Servant" relationship are discarded by the litigants as this principle insults the decency of human being.

21. The other issue of the learned counsel for the Respondents very forcefully contended that the Appellant has filed this appeal under section 6 of the Service Tribunals Act of 1973 which stipulates that any party prefer appeal before the Tribunal in respect of any issue pending in the Court. To appreciate its true impart the said section of the Act is reproduced as under:‑‑ "

6. Abatement of suit and other proceedings.‑‑‑All suits, appeals or applications regarding, any matter within the jurisdiction of a Tribunal pending in any Court immediately before the commencement of this Act shall abate forthwith: Provided that any party of such a suit, appeal or application may, within ninety days of the [establishment of the appropriate Tribunal, prefer an appeal to it]* in respect of any such matter which is in issue in such suit, appeal or application." He argued that in the Constitutional Petition before the Hon'ble High Court the pending issue was that of the limitation only and, therefore, the Tribunal was restricted to confine itself to the issue which was pending before the Hon'ble High Court, therefore the Tribunal should confine its order to limitation and not to the reinstatement of the Appellant. We are unable to agree with this line of arguments of the learned counsel for the Respondent which is absolutely untenable. The perusal of the Constitutional Petition No.1879 of 1997 filed by the Appellant before the Hon'ble High Court very clearly indicates that the issue pending before the Hon'ble High Court was that of his termination and not of limitation only. It would be relevant to reproduce the prayer of the Appellant made in the said Constitutional Petition which, inter alia, reads as under:‑‑ In view of the facts and circumstances mentioned above, it is respectfully prayed that this Honourable Court may be pleased to. (i) declare that the order of termination of the services of the Petitioner has been passed without lawful authority and is of no legal effect; (ii) declare that the impugned order being violative of the principles of natural justice is nullity in the eye of law; (iii) set aside the impugned order as being arbitrary, illegal and ultra vires and direct the Respondents to reinstate the Petitioner in service; (iv) grant any other relief which this Honourable Court deems fit and proper under the facts and circumstances of the case." Furthermore, the judgment of the Hon'ble Supreme Court (reproduced earlier) while dismissing the C.P.L.A. No.152 of 1998 filed by the Appellant very clearly mentions about the issue of termination challenged by the Appellant through his Constitutional Petition. We reproduce the relevant portion of para‑3 of the said judgment:‑‑ "

3. The petitioner challenged the order of his termination through a Constitution Petition in the High Court of Sindh at Karachi, inter alia, on the ground that although it was purported to have been passed in exercise of power derived from Master and Servant rule, would yet be deemed to be passed without lawful authority and of no legal effect, inasmuch as, it was passed without issuing show‑cause notice to the petitioner and without giving him an opportunity of hearing .." In view of the above facts, it is clearly evident that this line of arguments adopted by the learned counsel for the Respondents is misconceived and not sustainable. The basic issue pending before the Hon'ble High Court was the Appellant's termination when section 2‑A was inserted in the Service Tribunals Act of 1973 when the proceedings in the Hon'ble High Court abated.

22. The learned counsel for the Respondents also vehemently contended that the Appellant cannot claim reinstatement but only damages. In support, he cited the ruling of the Apex Court in the case of Anisa Rehman (1994 SCMR 2232). In this case the issue was not of termination but of reversion and their Lordships, however, observed in their ruling that "remedy for wrongful dismissal is to claim damages." Appellant's termination cannot be equated with dismissal which has totally a different connotation and effect.

23. The main plank of the Appellant's unceremonious termination, as stated above, being the respondent's inability to keep the post of the Appellant vacant for indefinite time though the Appellant's termination letter mentions "lack of the Bank's confidence" as the basis of the impugned order. In this regard, the learned counsel for the Respondents relied on three judgments. First one being that of the Hon'ble Supreme Court of India in Civil Appeal No.325 of 1994 and 174 of 1994 in the case of Burn and Company and their employees. The perusal of the said judgment indicates that a section of employees of the petitioner in Howra Iron Works were involved in litigation arid the Government of West Bengal issued a notification dated 16‑12‑1952 referring it to the First Industrial Tribunal for adjudication which comprised thirteen (13) items in the reference. The four of these were considered by the Hon'ble Supreme Court and one of the item being reinstatement of four employees namely S.N. Chatterjee, Ashimananda Banerjee, Ramchanan Rana and Joydeb Banerjee and/or payment of compensation to them. In this case one of the four employees i.e. Ashimananda Banerjee was arrested by the Police under West Bengal Act and detained in jail from 25‑1‑1949 to 5‑4‑1952. The company terminated his services on 22‑4‑1949 i.e. after a period of 2 months and 27 days whereas in the present case Appellant's was suspended on the next day of his arrest and, as such, the haste in which the Appellant' services were terminated is totally distinguishable from the judgment of the Hon'ble Supreme Court of India reported in AIR 1957 SC

38. With the Appellant's suspension his post became vacant and the Respondent's could appoint any replacement. The other judgment on this point which was very vehemently argued by the learned counsel for the Respondents was the ruling of the Sindh Labour Appellate Tribunal in the case of Muhammad Ramzan v. National Motors reported in 1980 PLC

780. This case is also distinguishable from the present case as in this particular case Appellant Muhammad Ramzan was convicted for one year by the Summary Military Court and was thereby imprisoned. In this case it was established fact that the Appellant being convicted and imprisoned could not resume duty for at least for a period of one year whereas in the case of Appellant in the appeal in hand, he had neither been convicted nor the trial had started and, as such, this case is also distinct from the Appellant's appeal. The third judgment cited by the learned counsel for the Respondents was that of N.I.R.C. in the case of Fazal Dad v. Attock Electric Company reported in 1997 PLC 364 where the Appellant was lodged in jail during investigation by the Police and he had applied from jail for six months' leave from duty. He was, however, directed by the Respondent namely, Attock Electric Company, to resume duties within ten (10) days, failing which he was warned that his services would be terminated. The facts of this case are also distinguishable from the Appellant's case in hand where, to repeat once again, Appellant was suspended on the next day of his arrest and later terminated without giving him any opportunity to report for duty or issuance of 'show‑cause notice or even personal hearing.

24. It would be relevant to recall that the learned counsel, for the Respondents had very categorically stated that the Appellant had received hi& three months' notice pay as visualized in the Banks Service Regulation. This is also distortion of facts, as the Appellant was not paid this amount and in fact his three months pay was adjusted against his wife's loan of a paltry sum of Rs.40,000 which was also recovered through the Bank decree. His wife had obtained this loan in her individual capacity as a separate entity and recovery of her loan could not be adjusted against the dues payable to the Appellant.

25. The upshot of the entire discussion clearly brings out that the Appellant was involved in false criminal charges and subjected to degradation of arrest. The criminal charges were quashed vide Hon'ble High Court's judgment referred to above. The circumstances which have been detailed in the preceding paras make it abundantly clear that the Appellant was made a victim of a conspiracy and vengeance of a private complainant which made the Appellant to undergo mental agony and torture besides making him lose his job in an unceremonious and void termination which was issued with indecent haste by the Respondent- Bank. It would be a great travesty of justice of the Appellant's rights are not restored and, as such the appeal of the Appellant is accepted and the impugned order dated 26‑3‑1995 is set aside and the Respondents are directed to reinstate the Appellant in service with full monetary and other, consequently benefits. H.B.T./128fFST Appeal accepted.