ABDUL HAMEED KHAN Versus NATIONAL BANK OF PAKISTAN

SYED ARSHAD ALI, J.---- This consolidated judgment is aimed at deciding the instant petition as well as connected Writ Petition bearing No. 2948-P/2023 as essentially adjudication of common questions of law and facts are involved in both the petitions.

2.The present matter pertains to the stealing of 62 bags of gold ornaments pledged with the National Bank of Pakistan at Thandkoi Branch, Swabi ("Bank") by a janitorial staff, namely, Sahil Muhammad. At the relevant time, the petitioners Ziaullah Shah and Abdul Hameed Khan were serving as Branch Manager and Cashier in the Bank respectively. The matter was reported by one of the petitioners Ziaullah Shah at Police Station Zaida, District Swabi on 07.11.2013. According to the investigation, a loss of Rs. 51 million was caused to the Bank. In order to investigate the matter by the Bank, a team comprised of Faheem Jan OG-I as well as Muhammad Aman Khan OG-I MTO National Bank of Pakistan at Mardan were appointed. The said team had thoroughly examined the record and interviewed the borrowers, who had obtained loans from the Bank. Some of the borrowers had stated that no loan was obtained by them and even the loan documents were fabricated/forged by the officer of the Bank. Accordingly, both the petitioners were charge-sheeted and show-cause notices were issued to them for their alleged involvement in the aforesaid scam by the Senior Vice-President ("SVP") . The precise charges against the petitioners are that they being Branch Manager and Cashier were jointly responsible for the loan caused to the Bank. An inquiry was conducted and as a result of the inquiry proceedings, the matter was placed before the Disciplinary Cases Committee ("DCC"), who had passed the order of dismissal of both petitioners on 28.11.2017. The said dismissal order was challenged before this Court by the petitioners through a Writ Petition bearing No. 2990-P/2018 and this Court vide order dated 07.05.2019 had directed the respondent to decide the appeal of the petitioners strictly in accordance with the National Bank of Pakistan (Staff) Services Rules, 1973 ("Rules, 1973") within a period of three months. However, the said appeal was dismissed by the appellate forum and the dismissal order was challenged before this Court by both the petitioners through separate Constitutional Petitions bearing Nos. 5441-P and 5816-P/2019. This Court vide consolidated judgment dated 02.12.2021 rendered in Writ Petition 5441-P/2019 had allowed the petitions on the sole ground that the charge-sheet was required to have been issued by the Senior Executive Vice President of the Bank; whereas in the present case, it was issued by the SVP, hence the entire proceedings were illegal and as a consequence thereof, the petitioner, namely, Abdul Hameed Khan was reinstated into service, however, by that he had reached the age of superannuation, therefore, his reinstatement was only made for the purpose of pension and related benefits; whereas the petitioner Ziaullah Shah was also reinstated into service leaving the competent authority at liberty to initiate disciplinary proceedings against the petitioners but in accordance with the rules and other relevant law.

3.After remand of the case, a fresh show-cause notice was once again issued by the SVP and the proceedings were initiated under the National Bank of Pakistan (Staff) Service Rules, 2021 ("Rules of 2021"). It would be important to note that the first inquiry was conducted against both the petitioners under Rules, 1973 "CSR, 1973" . The later Rules of 2021 were non-statutory in nature. The contents of charge-sheet were denied by both the petitioner and the matter was inquired through a fresh inquiry; the inquiry committee had provided the opportunity of hearing and allowed both the parties to produce their evidence. Both the parties were also allowed to cross-examine the witnesses and after hearing the parties, the inquiry committee recommended that the eleven (11) charges against both the petitioners stood proved. The inquiry report has been placed on file by the respondents along with the comments. Following the inquiry report, the matter was placed before the competent authority i.e. DCC, who while taking into consideration the inquiry report had passed an order for the dismissal of the petitioners from service with immediate effect.

4.The learned counsel representing the petitioners has mainly raised two essential questions; firstly, once it was held by this Court in the consolidated judgment dated 02.12.2021 passed in Writ Petition No. 5441-P/2019 that the SVP could not have issued the charge sheet and the matter was remanded back to the Bank for fresh inquiry, once again the charge-sheet was issued by the SVP; hence the entire edifice built upon the said charge-sheet being coram-non-judice is illegal and secondly, the second inquiry was conducted under the Rules, 2021. Since the petitioners at the time of initiation of disciplinary action were proceeded under CSR, 1973, therefore, the subsequent proceedings under Rules of 2021 are illegal.

5.First, we will address the main objection of the petitioners regarding the issuance of the charge-sheet by the SVP instead of the Senior Executive Vice President. No doubt, this Court through the consolidated judgment dated 02.12.2021 passed in Writ Petition No. 5441-P/2019 has held that SVP is not competent to have issued the show-cause notice, however, this matter has been elaborately desalt with by the Apex Court in the case of Muhammad Naeem Khan v. President National Bank of Pakistan and others (2021 SCMR 785) . Relevant paras from the said judgment are reproduced as under:‑

Reference to Rules

Nature of powers delegated

Competent Authority to whom powers delegated

Categories of employees in respect of which powers delegated upto

10

32, 33 and 34

Grant of permission to incur unsecured debt and giving guarantee, etc. to open accounts with other banks.

1(a)1(b) II

11.

37 and 39

Dismissal and other punishments

I(f) II III IV

12.

38 and 39

Suspension (pending enquiry) grant of permission to leave station during suspension and issue of show- cause notice

Managing Director Deputy Managing Directors (c) Heads of Administration Department, Head Office/Principal Offices and Senior Regional Manager. (d) Heads of Departments at Head Office/Principal Offices Regional Managers and Managers (Officers Grade I and above) (e) Managers of Branches (Officers Grade II and above (f) Managers of Branches (Officers Grade III and Junior Officers)

I(a) All Categories except 1(a), (b) and (c) II III

9. A perusal of the Appendix-I above reveals that delegation of powers in respect of issuance of show-cause notices have been mentioned at Sr. No. 12, thereof. In terms of the said item, the power to issue show-cause notice to all categories except (i)(a), (b) and (c) are delegated to Deputy Managing Director, Head of Administration Department, Head Office, Principal Offices and Senior Regional Managers. In the case in hand, the show-cause notice was issued by Executive Vice-President/Divisional Head, Head Office, Karachi. It would therefore appear that the show-cause notice to the Appellant has prima fade been issued by a competent authority. We, therefore, find that the power conferred through Rules, 1973 was rightly exercised by the Executive Vice-President and the objection of the Appellant in this regard is misconceived and is accordingly over ruled and repelled.

10. It also appears to us that the nomenclature of different designations has changed overtime. However, the powers of officers of various categories, in the matter of disciplinary proceedings remain the same. According to the learned counsel for the Respondent-Bank after change of nomenclature, various categories may be read as follows:

12. It appears that by virtue of the powers available under Rule 5(2), the President of the Bank delegated his powers to the DCC through Circular No 4 of 2003. In the same circular at point No.2(a) is dearly mentioned that the disciplinary cases falling within the competence of the President and the Board of Directors, shall be considered, deliberated upon and decided/recommended by the Committee". It further appears that under Circular No.4 of 2003, the President of the Bank delegated his own powers which by virtue of the Appendix are in respect of issuing show-cause notices to Deputy Managing Director, Senior Principal Officers and Principal Officers. In the case in hand, the matter is not in respect of issuing show-cause notice to any of the said officers because the Appellant was neither Deputy Managing Director, Senior Principal Officer nor the Principal Officer and in fact he was an Assistant Vice President. Therefore, his stance that only the Chairman/ DCC were the competent authorities to issue him show-cause notice is clearly misconceived. We have also gone through NBP Instruction Circulars; Office Circulars, Information Circulars and NBP Employee Discipline Policy (EDP). On perusal of lie said documents leads us to the conclusion that the charge sheet was validly and lawfully issued by an authorized officer, competent to do so.

13. Having dealt with the question of validity of the charge sheet, we have gone through the inquiry report and the material collected during the inquiry. It is clear and obvious to us that the Appellant being Branch Manager was responsible to keep an eye on the activities in his Branch relating to its business. There is no denial of the fact that fraud was actually committed and in the opinion of the inquiry officer, lack of vigilance for long periods of time and failure of the Appellant to put systems in place and maintaining the relevant registers perpetrated and perpetuated continuous fraud for almost four years. It also appears that the Appellant consciously and deliberately covered up the fraud and thereby facilitated commission of such fraud which resulted in misappropriation of substantial sums of money at the cost of the exchequer. There is no explanation available on the record why despite being intimated by a whistleblower and others including surprise audits the Appellant remained complacent, failed to take any action and taking steps to ensure that the delinquents were brought to book by way of appropriate action in accordance with law and that continuation of the fraud and misappropriation of public money was stopped. Instead, he pressurized the whistleblower to remain silent and ultimately removed him from the pension payment section and failed to take any action despite identification of fraud and misappropriation of funds from the pension account during surprise audits. This emboldened those who were misappropriating funds to continue their activities for years on end

14. A perusal of the record also reveals that the Appellant was provided all relevant documents required by him in order to build his defence and he was also given an opportunity to cross-examine the witnesses who appeared against him. The Appellant signed the inquiry proceedings confirming the fact that he was provided all due process rights for his defence and cannot be heard at this stage to take a different stance specially so where this stance was not even taken before the High Court.

6.The perusal of the aforesaid judgment would clearly show that over period of time, the position/nomenclature of various officers had changed, however, the competent authority to deal with the cases of employees were delegated under Rule-5 (2) of Rules, 1973 to the Chairman/Disciplinary Cases Committee ( "DCC" ) through Circular No. 04 of 2003 and the decision passed by the DCC in such like cases would be valid. In the present case too, the order of dismissal was passed by the DCC, however, while Writ Petition bearing Nos. 5441-P and 5816-P/2019 dated 02.12.2021, the attention of this Court was not drawn to the aforesaid legal dispensation which has been explained by the Apex Court in the case of Muhammad Naeem Khan (supra) , therefore, the objection of the petitioners that inquiry was conducted by the unauthorized officer is hereby rejected.

7.Moving on to the second limb of arguments of the petitioner that the inquiry under Rules of 2021. No doubt, the first inquiry was initiated against the petitioners under Rules, 1973, however, on 18.03.2021, the Cabinet Committee of the Federal Government approved the repeal of Rules, 1973 and on 21.04.2021, the NBP Board of Directors enacted Rules of 2021 under Bye-law 51 of the National Bank of Pakistan Bye-laws, 2015 and section 11 of the Banks (Nationalization) Act, 1974; thus, the de novo inquiry under Rules of 2021 has caused no prejudice to the petitioners. In the subsequent de novo inquiry, charge sheet/show cause notice was issued to the petitioners; inquiry was conducted through independent officer; the evidence was recoded; the petitioners were provided an opportunity to cross-examine the witnesses as well as an opportunity of personal hearing and the order of dismissal was passed by the competent authority. The close perusal of the inquiry report would clearly show that the petitioners were found involved in causing loss to the Bank and the fact that the gold was stolen from the Bank has not been denied by the petitioners, however, it is the case of the petitioners that a janitor was involved in the said theft. However, it is further evident from the inquiry report that the said theft was made by using a vault key which was supposed to be in possession of the petitioners, besides, there are allegations of disbursement of loans against fake documents. Since we are not dismissing the petitions on the ground that the Rules of 2021 are not statutory and even if it is assumed that the disciplinary proceedings were under CSR, 1973, the petitioners could not make out of the case for interference. We have neither any occasion nor mandate to substitute the discretion exercised by the competent authority dismissing the petitioners from service.

8.In view of what has been stated above, we are not inclined to interfere in the matter as the factual probe conducted by the Bank regarding the guilt of both the portioners does not call for interference and the hyper technical questions raised by the petitioners regarding the competent authority has already been settled by the Apex Court in Muhammad Naeem Khan's case (supra) ; therefore, both the petitions having no merit are accordingly dismissed.

MQ/148/P Petition dismissed.