MUHAMMAD ASLAM KHAN NIAZI Versus NATIONAL BANK OF PAKISTAN
Muhammad Aslam Khan, petitioner herein, an ex‑employee of the National Bank of Pakistan, Mianwali has challenged the; order of his dismissal and the order passed in appeal and review.
2. Briefly, the facts are that while posted as officer Grade‑I in Mianwali Main Branch, the petitioner was proceeded against departmentally, inquiry in the matter was held and vide order, dated 5‑6‑1988, he was ordered to dismissed from service by the competent authority under Rule 37(h) of National Bank of Staff Service Rules, 1980. Appeal against the dismissal order was rejected by the President of the Bank vide his order, dated 3‑3‑1991. Review filed against the aforesaid order was also dismissed vide order, dated 8‑6‑1991.
3. Learned counsel for the petitioner argued that the impugned dismissal of the petitioner is violative of the principles of natural justice, in that, he was never afforded an adequate opportunity of being heard either by the dismissing or by the appellate authority. He further submitted that copy of the inquiry report on the basis of which the, impugned dismissal order was passed was never supplied to the petitioner at any stage to enable him to rebut the charges purported to he proved against him. The precise submission of learned counsel for the petitioner is that Mr. D.M. Qureshi, although heard the petitioner in support of his appeal, but before he could record a decision, he was transferred and was succeeded by Mr. Nasim Ahmad and then by Mr. Inam Elahi. None of the aforesaid officers granted any hearing to the petitioner in support of the appeal. The case was fixed for hearing on a number of occasions, but as borne of Pakistan (Irshad Hasan Khan, J) out from letters, dated 30‑1‑1990, 6‑3‑1990 and 12‑3‑1990, hearing had been put off and ultimately the order of dismissal of the petitioner's appeal was passed on 3‑3‑1991.
4. Mr. Umar Alvi, Advocate, appearing on behalf of Mr. Javed Altaf, learned counsel for the respondent, raised a preliminary objection as to maintainability of the writ petition on the ground that relationship between the parties was that of a Master and servant. In support of his contention, reliance was placed on R.T.H. Janjua v. National Shipping Corporation P L D 1974 SC 146.
5. It is not disputed that the petitioner was dismissed under the National Bank of Pakistan Staff Service Rules, 1980. The status of these rules came up for consideration before a Division Bench of Sindh High Court in the case of National Bank of Pakistan v. Sindh Labour Appellate Tribunal 1990 PLC 593, wherein it was held that the National Bank of Pakistan Staff Service Rules, 1980, were not statutory rules. Also see Anwar Hussain v. Agricultural Development Bank of Pakistan PLD 1984 SC 194, wherein it was held that in case of dismissal or termination from service where the principle of "master and servant' is applicable, the remedy against the wrongful dismissal from or termination of service is by way of damages and not re‑instatement to a post.
6. When faced with this Syed Jamshed Ali Shah, learned counsel for the petitioner heavily placed reliance on Muhammad Abdullah Khan v. National Bank of Pakistan etc. 1980 PLC (C.S.) 105, where the National Bank of Pakistan Staff Service Rules, 1973 were treated as statutory rules. The case of Muhammad Abdullah Khan (supra) is not applicable here, in that, the petitioner was not removed from service under National Bank of Pakistan Staff Service Rules of 1973, but under the Service Rules of 1980 which cannot be equated with the statutory rules. Also refer National Bank of Pakistan v. Manzoor Hussain (Civil Appeal No.104 of 1992) and The Principal, Cadet College, Kohat v. Muhammad Shoaib Qureshi PLD 1984 SC 170, where it was held that in cases where the statutory rules govern the service conditions of an employee, Constitutional petition to enforce the rights of the petitioner would be competent but not otherwise. In this case, the service conditions of the petitioner are not governed by statutory rules and, therefore, the writ petition is not competent.
8. Needless to observe that Syed Jamshed Ali strongly relied on a judgment delivered by this Court 1991 PLC (C.S.) 492 wherein the order of removal from service was set aside as the High Court found that it was violative of the rules of natural justice. The submission of Syed Jamshed Ali that the petitioner was also removed from service in violation of the principles of natural justice and, therefore, he was entitled to be re‑instated is not sustainable, inasmuch as, the question of applicability of the rule of "master and servant' was neither raised nor determined in the said case and, therefore, the same cannot be treated as precedent for the purpose of controversy raised herein. Clearly, the case of the petitioner is governed by principle of "master and servant" and, therefore, the writ petition is not maintainable. Resultantly, the writ petition fails and is dismissed, but there shall be no order as to costs.
AA./M‑1473/L. Petition dismissed.