2009 PLP 1424 (MLD)

FAISAL ARAB, J.

The petitioner is an employee of respondent No.1 Bank. On 23-2-2005 respondent No.1 registered an F.I.R. complaining that the petitioner in his capacity as Manager has misappropriated a sum of Rs.332 million from the Bank's funds. The petitioner was then suspended and a Reference No.7 of 2005 was filed in the Accountability Court, which is pending adjudication. For the period of his suspension, the petitioner demanded salary as admissible to him but was denied by respondent No.1 Bank vide letter, dated 20-2-2006. The reasons for denying salary during the suspension period as given in letter, dated 20-2-2006 are as follows:-- "Please refer to your application, dated 5-1-2006 on the above Subject: As you committed a fraud consequently your services were suspended. On lodgment of F.I.R. you had been arrested by the NAB. You are still in jail custody, it is settled law that an employee is entitled to salary only if either he reports for duty or he is granted leave with pay. You are neither on duty nor have you been granted leave with pay. Therefore, you are not entitled to any salary. You have stated in your letter that other suspended employees in this case are receiving their salaries but you are deprived of it. It is clearly stated that no employee whatsoever who has been suspended or who is behind bars is paid salary except where he applies for leave and leave is granted in accordance with rules. As far as suspended employees who are not in jail are concerned, they are paid because such employees are available to the Bank whenever and wherever Bank wants them to come. Their suspension is an act of choice by the Bank. On the other hand, employees in jail are not in a position to come to the Bank and join duties or for inquiry or any other purposes."

2. Subsequently, the petitioner was terminated from service on the basis of separation from service policy with effect from 13-1-2007. His service benefits were calculated to the tune of Rs.3,820,845.76. From this amount outstanding liabilities towards house finance, car finance, income tax liability, furniture and fixtures dues etc., which the petitioner owed to respondent No.1 Bank were first adjusted and the remaining balance was adjusted against petitioner's share in the embezzled amount. The balance of embezzled amount was then demanded from the petitioner with 14% interest.

3. In this petition, the petitioner is claiming salary for the period of suspension and has also impugned the order of his termination as according to him there was no legal justification for taking both the impugned actions.

4. Learned counsel for the petitioner argued that respondent No.1 had no right to deny the petitioner salaries merely because his services were suspended and thereof direction be given to respondent No.1 to release petitioner's salary. He also contended that while the reference in the Accountability Court is still pending and the petitioner has not been found guilty, therefore, there was no justification for terminating petitioner's services. He therefore urged to declare the order of petitioner's termination as illegal.

5. Learned counsel for the respondent No.1 on the other hand argued that the petitioner has wrongly invoked the jurisdiction of this Court under Article 199 of the Constitution as respondent No.1 Bank was privatized vide Privatization Agreement, dated 26-2-2004 that was entered into between- the Federal Government and Agha Khan Fund for Economic Development. He therefore contended that the petition is liable to be dismissed on this score alone. He further contended that as the petitioner was in jail on account of embezzlement charges, there was no occasion for paying him the salary and in any case his services were terminated subsequently and all his service benefits were partly adjusted against his outstanding dues and partly against the embezzled amount and still a huge sum of the embezzled amount is recoverable from the petitioner.

6. From the agreement of privatization it is evident that 51% shares and management control of respondent No.1 Bank were to be transferred to Aga Khan Funds for Economic Development upon payment of sale consideration in various instalments. The process of payments for 51% shares was completed on 24-2-2006. Thus on this date, Aga Khan Fund for Economic Development became majority shareholder in respondent No.1 Bank. The cause of action, in so far .as the outstanding salaries during suspension period is concerned arose to the petitioner on 23-2-2005 when F.I.R. was lodged against him and he was suspended. At that time Federal Government owned and controlled the majority shareholding in respondent No.1 Bank. Hence, for this particular cause of action i.e. the salary benefits during the period of suspension upto 24-2-2006, this petition is maintainable in the constitutional jurisdiction of this Court.

7. We are therefore of opinion there was no lawful justification to deny the petitioner his salary during his suspension, notwithstanding the fact that he was in jail. He was in jail because of registration of case against him by respondent No.1 on account of allegations of embezzlement. Mere allegation of commission of an offence and registration of F.I.R. ipso facto does not make a person guilty of the offence for which he is charged. A person is to be presumed innocent unless found guilty by a competent Court of law. In the present case, reference against the petitioner is still pending. We therefore, hold that the petitioner is entitled to his salary from the date of his suspension till the transfer of controlling shares in favour of Agha Khan Fund for Economic Development, which was finalized on 24-2-2006. However, from his salary benefits, respondent No.1 Bank shall be entitled to adjust petitioner's outstanding dues such as house finance, car finance, income tax liability, furniture and fixtures dues etc.

8. As to the petitioner's grievance with regard to his termination from service, this happened in January, 2007 when the controlling shares and management of respondent No.1 stood already vested in Aga Khan Fund for Economic Development. For such grievance therefore, the petitioner is not entitled to invoke the constitutional jurisdiction of this Court.

9. We therefore allow this petition only to the extent that petitioner is. entitled to claim from respondent No.1 his salary dues from the date of his suspension till the transfer of controlling shares in favour of Agha Khan Fund for Economic Development, i.e. upto 24-2-2006 after his outstanding liabilities towards house finance, car finance, income tax liability, furniture and fixtures dues etc. are adjusted, which the petitioner owned to respondent No.1 Bank at the time of his suspension. H.B.T./R-29/K Order accordingly.