2025 PLP 141 (PLC)

MUHAMMAD ASIF, J.

Through the instant writ petition, the petitioner has prayed for the following relief: - i. That the instant petition may graciously be accepted, impugned order dated 22.02.2024 of the learned Full Bench may be set aside. ii. And that the order dated 06.09.2023 of Single Bench NIRC which is against the observations made in the judgment of this Honourable Court dated 1620/2022 and also against the law and facts of the case, requires appropriate modifications. iii. Accepting the grievance petition No. 4B(70)/2015 of the petitioner, the order of removal from service dated 12.08.2015 may kindly be set aside, and the petitioner may be reinstated in service with full back benefits as she has not committed any kind of misconduct. iv. Case litigation cost since 2015 also be awarded, an affidavit to this effect is being filed very soon. v. As the NIRC has ignored and violated the specific and clear observations, and went beyond the clear directions of this honourable Court in Writ Petition No. 16520/2022, it requires serious interference of this Court. The case law PLD 1995 Karachi 347 and 1995 PLC 451, relied on by this Honorable Court, was also ignored. The petitioner has also suffered irreparable loss due to the act of forums below.

2. The facts of the case which are relevant for the disposal of the instant petition will be discussed in the later part of the judgment.

3. The learned counsel for the petitioner argued that the charge sheet issued to the petitioner on 11.11.2024 is time-barred; that the occurrence was committed between 23.01.2014 to 04.08.2014, wherein FIR No. 296 dated 02.09.2014 was registered against one Malik Hamood ur Rehman; that as per Standing Order 15(4) of the Standing Ordinance, 1968 ("the Ordinance"), it is mandatory to serve charge sheet within 30 days from the date of the alleged misconduct but the charge sheet was served to the petitioner after lapse of considerable time; that no regular inquiry was conducted, which is mandatory requirement of the Ordinance; that the petitioner has not provided an opportunity to cross-examine the witness even no witness was recorded in the presence of the petitioner, therefore, the inquiry proceedings are totally illegal; that the reply to the charge sheet has not been considered as the inquiry was ordered to be held before receiving a reply to the charge sheet; that the appointment order of the petitioner was issued by the In-charge personnel and Head of HRD, however, the removal order has been issued by the Group Head of HR, therefore, such removal order is not sustainable in the eye of law; that the copy of inquiry proceedings and report was not provided to the petitioner; that the main accused, Malik Hamood ur Rehman has admitted in his statement that he alone used to hack the IDs of the employees fraudulently and has embezzled the amount and no other employee is responsible/beneficiary for the alleged embezzlement, however, this fact has not been considered by the inquiry committee and the courts below; that during inquiry no charge of embezzlement has been attributed to the petitioner; that neither any amount was credited to the petitioner's account nor she took any such amount; that it is evident from the inquiry report that the co-accused, Malik Hamood ur Rehman has committed his guilt and the petitioner is guilty of negligence only; that the negligence on the part of the petitioner does not constitute misconduct against the petitioner; that both the forums below neither recorded the version of the petitioner nor any case law presented by the petitioner's counsel has been quoted and referred in the judgment; and that the impugned order dated 22.02.2024 and 06.09.2023 of the learned Full Bench of NIRC and learned Single Bench of NIRC respectively is totally illegal, arbitrary and against the law and facts of the case, therefore, the same are liable to be set aside.

4. The learned counsel for respondent No. 1 repelled the above submissions and argued that the petitioner twisted the facts to divert the attention from the factual position; that the petitioner was charge-sheeted on 11.11.2014 for committing fraud/embezzlement of funds amounting to Rs. 31,717,090/- through 28 different transactions. Out of these 28 transactions, 12 transactions amounting to Rs. 4,656,160/- were entered and executed through the petitioner's ID; that the petitioner, in reply to her charge sheet, has failed to explain these 12 transactions; that the petitioner took the stance that her ID/password was hacked by one of her colleagues/co-accused, Malik Hamood ur Rehman and he used it for the purpose of embezzlement, however, petitioner did not inform regarding the issue to the manager or superior offices that her ID was hacked and that the transactions were fraudulently entered between 23.01.2014 and 04.08.2014 until the same were detected; that the petitioner was charge sheeted, her reply was duly considered and she was given an opportunity to appear before the inquiry committee and explain her position; and that the petitioner was served with the final show cause notice dated 22.07.2015 and opportunity of personal hearing was also provided, however, she failed to prove her innocence, consequently the action was taken by following the Staff Service Rules, of the respondent bank, therefore, the instant writ petition may be dismissed.

5. I have heard the learned counsel for the parties and have gone through the record with their able assistance.

6. The perusal of the record reveals that the petitioner was appointed to the post of Officer Grade-III, vide letter dated 05.07.2010 in the Bank of Khyber ("Respondent No. 1"). After the internal Audit (I.A.D), the fraudulent transactions/embezzlement of funds of Rs.31,717,090/- was reported, pursuant to which, an inquiry was conducted by Respondent No. 1, and the petitioner was suspended and charge-sheeted on 11.11.2014 along with a statement of allegations issued to her by which a reply was filed on 19.11.2014, wherein, she denied the charge of "sharing password". Consequently, she was removed from service vide order dated 12.08.2015.

7. The inquiry was conducted in lieu of the inquiry report dated 09.02.2015 and eight officers of the branch were questioned and the petitioner was found guilty of negligence.

8. As per the inquiry report dated 09.02.2015, co-accused, Hamood ur Rehman (OG-III) admitted his guilt by confessing the allegations of fraud. In his statement, he stated that he had solely committed the fraud and all the other staff members of the branch were innocent and had no concern with the fraud.

9. Initially, the petitioner challenged the removal order before the NIRC Bench of Peshawar on 19.10.2015, however, the said learned Bench dismissed the petition, vide order dated 29.01.2019 for lack of jurisdiction by holding that the petitioner is not a workman. The petitioner assailed the said order before the learned Full Bench of NIRC, wherein, the learned Full Bench set aside the order dated 29.01.2019 by holding that the petitioner is a workman and the case was remanded for decision on merits, vide order dated 31.07.2019. The Respondent No.1 filed a Writ Petition No. 3821/2019 before this Court against the order dated 31.07.2019, which was also dismissed, vide order dated 09.10.2020, with the observations that the petitioner is a workman. The petitioner again approached the learned Single Bench of NIRC, however, the petition was dismissed on merits, Subsequently, the petitioner filed an appeal before the learned Full Bench of NIRC, which was also dismissed on merits vide order dated 09.02.2022. The petitioner once again impugned the orders of the courts below and filed Writ Petition No. 1620/2022, which was allowed, and the case was remanded to the learned Chairman NIRC for a decision afresh.

10. The learned Single Bench of NIRC partially allowed the petition and set aside the impugned order dated 21.09.2015 of removal from service and reinstated the petitioner into service by demoting her one step below along with half basic pay as back benefits from the date of her removal.

11. The Respondent No. 1 challenged the order ibid before the learned Full Bench of NIRC, whereby, the order dated 06.09.2023 passed by the learned Single Bench of NIRC was set aside.

12. In the present case nothing had been brought on record to show that the petitioner was directly responsible or had committed any gross misconduct or negligence in respect of the allegations as contained in the charge sheet, whereas, the guilt regarding allegations and charges in the instant case had been duly accepted through a confessional statement by another employee of the bank i.e. Malik Hamood ur Rehman (OG-III) against whom a criminal case was also registered, however, such aspect had been totally ignored while awarding the major punishment of dismissal from service, which, on the face of it, was otherwise not commensurate with the magnitude of the guilt and the role assigned to the petitioner. Neither in the charge sheet nor in the proceedings before the Disciplinary Cases Committee there was any direct charge of misconduct, fraud, embezzlement of fraud or even the connivance of petitioner with the offence committed by Malik Hamood ur Rehman who had accepted his guilt. In the given circumstances and in the absence of any substantial and cogent evidence placing the petitioner to be in collusion with Malik Hamood ur Rehman, would not be fair and justifiable.

13. The pivotal defect in the inquiry proceedings that the charge sheet dated 11.11.2014 had not been issued within a period of thirty days as required by the Standing Order 15 (4) of the 1968 Ordinance, and when an FIR was registered against the co-accused, Malik Hamood ur Rehman on 02.09.2014 then Respondent No. 1 came to know about the petitioner's alleged negligence.

14. The main question for consideration in this case is whether a major penalty of removal from service could have been imposed on the petitioner that although there was a charge of misconduct against her, however, as per the inquiry proceedings, she had been found guilty of negligence but a solitary act of negligence. The Standing Order 15 (3) of the 1968 Ordinance lists the acts and omissions that are to be treated as misconduct. According to Standing Order 15(3) (i), "habitual negligence or neglect of work" has been classified as misconduct. Presuppose, if the findings against the petitioner in the said inquiry report are correct (in that she was guilty of negligence), could a major penalty of removal from service be imposed on the petitioner?

15. The words "negligence or neglect of work" are not used in a disjunctive sense. There is perfect ground to hold so. Firstly, neglect of work is also a kind of negligence, and being of a lesser kind would be covered by it, which has a broader meaning. Secondly, it is a well-recognized principle of law that to carry out the intention of the Legislature, it is occasionally found necessary to use the conjunction "or" and "and" one for the other. Since the sub-clause in question is penal, I am inclined to construe it favourably to the employees. I would, therefore, hold that the neglect of work mentioned in this subsection must be of a habitual nature. One single instance of sleeping while on duty cannot be termed as habitual negligence or neglect of work so as to bring it within the mischief of the above-mentioned Standing Order. Reliance is placed upon the case of Saifi Development Corporation Ltd. v. Workers Union (PLD 19965 Karachi 347)

16. Admittedly, there is no allegation against the petitioner of having embezzled any amount, and on the contrary, there is an admission on the part of her co-accused, Malik Hamood ur Rehman, regarding the said embezzled amount, which he had admitted. On the basis of negligence, the petitioner could have been considered to be a lapse on her part, which could not entail the major penalty of removal/dismissal from service. Punishment should always be commensurate with the guilt proven.

17. It is pertinent to mention here that a single instance of negligence or neglect of work cannot bring the case within the mischief of Standing Order 13(3)(i). In this regard my view is strengthen by the case of OPAL Laboratories (Pvt.) Ltd. v. Raheela (1995 PLC 451) wherein the Labour Appellate Tribunal, Sindh has held that:- "Under Standing Order 15(3) all the workers were dismissed from service for misconduct. The only clause applicable to their case is Standing Order 15(3)(i) "habitual negligence and neglect of work". One or two instances of neglect during the entire career cannot be regarded as "habitual". It means neglect of work by habit which connotes continuous course of conduct".

18. The element of bad faith and willfulness may bring an act of negligence within the purview of misconduct but lack of proper care and vigilance may not always be willful to make it a case of grave negligence, inviting service punishment. The philosophy of punishment is based on the concept of retribution, which may be either through the method of deterrence or reformation. The purpose of deterrent punishment is not only to maintain balance with the gravity of the wrong done by a person but also to make an example for others as a preventive measure for the reformation of society, whereas the concept of minor punishment in the law is to make an attempt to reform the individual wrongdoer. In service matters, the extreme penalty for minor acts depriving a person from the right to earn would definitely defeat the reformatory concept of punishment in the administration of justice. Guidance is solicited from the case of Auditor-General of Pakistan v. Muhammad Ali (2006 SCMR 60).

19. In view of the above, I have observed that the case against the petitioner cannot be considered to be one of fraud, forgery, or embezzlement; rather, at most, it can be considered to be one of negligence. The major penalty awarded to the petitioner, i.e. "removal from service," is harsh and cannot be awarded just on the allegation of negligence, therefore, while taking a lenient view, the instant petition is allowed, and the orders dated 22.02.2024 and 06.09.2023 passed by the learned Full Bench of NIRC and the learned Single Bench of NIRC, respectively, are hereby set aside. The petitioner is reinstated into service with all back benefits from the date of her removal. SA/98/Isl. Petition allowed.