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Civil Appeal No. Q‑69 of 1981, decided on 22nd May, 1983.

(On appeal from the judgment of High Court of Baluchistan, dated 22‑12‑1980 passed in R . S . A . No. 12 of 1979) .

‑‑‑Art. 185(3)‑‑State Bank of Pakistan (Staff) Regulations, Regln.22‑ Leave to appeal granted to consider question, amongst others, whether High Court went wrong in holding that declaratory suit was maintainable at instance of petitioner when there was no controversy as to breach of any Rule relating to enquiry under Regulations.

‑‑‑Art. 185(3)‑‑State Bank of Pakistan (Staff) Regulations, Regln.22‑ Leave to appeal granted to consider whether High Court had wrongly held that Manager of Bank who was only officer under R.22 of Regulations competent to dismiss respondent from service, could not award punishment of dismissal as he was biased and that such exercise of power offended against principles of natural justice.

‑‑‑S. 96‑‑State Bank of Pakistan (Staff) Regulations, Regln.22‑‑First Appellate Court not to transform itself as an appellate authority sitting over judgment of Administrative Tribunal.

‑‑‑Regln. 22‑‑Civil Procedure Code (V of 1908), S.96‑‑Departmental proceedings‑‑Discretion lies only with Administrative Authority to take a lenient or harsh view of matter.

‑‑‑Regln. 22‑‑Dismissal‑‑Departmental enquiry held against employee in full accord with Regulations and no violation of any Regulation complained against‑‑No objection taken by employee during departmental enquiry to the effect that Enquiry Officer was biased or not impartial or was subordinate to Manager of Bank‑‑Finding of Courts below, that Manager of Bank who was only officer under Regln. 22 of Regulations, was biased against respondent, not rooted in evidence but based on conjectures and surmises‑‑Finding of appellate Courts below set aside and judgment and decree passed by trial Court upheld.

Mamnoonul Hassan, Advocate Supreme Court and M. Shabbir Ghaury, Advocate‑on‑Record for Appellant.

Mir Hazar Khan Khoso, Advocate‑on‑Record for Respondent.

Date of hearing: 22nd May, 1983.

‑Facts of this case briefly stated are that on 4‑7‑1970, Branch Manager of appellant‑Bank on a surprise check found the respondent who was employed as a Chowkidar missing from duty and sleeping in his quarter. As it was a case of dereliction from duty show‑cause notice was issued to respondent which was followed by a charge‑sheet and thereafter a departmental enquiry was held by the Accounts Officer of the appellant‑Bank, which culminated in the order of respondent's dismissal from service on 24-10‑1970. He filed an appeal against this order to the Governor State Bank of Pakistan but it was dismissed. He then filed a civil suit praying that the order of his dismissal from service be declared as illegal and the appellant be directed to re‑instate him in service. In defence; appellant raised several pleas, inter alia that since petitioner was dismissed from service on being held guilty of misconduct after a proper departmental enquiry under Regulation 22 of the Staff Regulations, the suit was not maintainable.

The trial Court dismissed the suit but on appeal the Additional District Judge, Quetta decreed the suit in respondent's favour. Appellant filed second appeal in High Court of Baluchistan but it was dismissed by the judgment, dated 22‑12‑1980. Leave to appeal was granted by this Court in order to consider the question, amongst‑ others, whether "the High Court went wrong in holding that the declaratory suit was maintainable at the instance of the petitioner when there was no controversy as to the breach of any Rule relating to the enquiry under the Regulations" and also whether "the High Court had wrong held that the Manager, who was the only officer under Regulation 22 of the Regulations competent to dismiss the respondent from service, could not award the punishment of dismissal as he was biased and that such exercise of power offended against the rules of natural justice".

As stated earlier, the suit was dismissed by the trial Court. On the main issue whether the order of respondent's dismissal and the subsequent orders in appeal are illegal, void and without lawful authority, the finding given by the trial Court was against the respondent. The relevant portion of the judgment of the trial judgment may be usefully reproduced hereunder:‑

"Regulation 22 of the State Bank of Pakistan (Staff) Regulations prescribes the penalties for the misconduct etc. of the employees and also the procedure for taking action accordingly. The plaintiff was called to explain the position and charge‑sheet given, inquiry officer appointed who had given ample opportunity to the plaintiff. The evidence adduced by the plaintiff and his own statement shows that he has no other grievance except that the Manager of the Bank used to get private work from the plaintiff to which he has refused and it is because of this that the defendant had made these charges and dismissed his service. The plaint shows that the plaintiff has several reasons to establish his case whereas no cogent evidence has been brought by the plaintiff. The first reason the plaintiff has alleged that the defendant had not at all applied his mind to the explanation of the plaintiff to the show‑cause notice. The record shows that the plaintiff was called upon to explain that on the visit of the Manager it was found that the plaintiff was sleeping inside the room and was not on his duty outside whereas the plaintiff has not replied to this charge but added other irrelevant matters only to save his skin. The second reason is that the Enquiry Officer was the subordinate to the defendant but there is no such evidence that the plaintiff had raised this objection and submitted any application that the Enquiry Officer is not impartial . . . . . . . . ."

In view of this I have come to the conclusion that order, dated 24‑10‑1970 and subsequent dismissal of appeal were not illegal, void and without lawful authority and as such this issue is decided in negative."

On appeal the first ground that prevailed with the learned Additional District Judge in reversing the judgment and decree passed by the trial Court was that the order of respondent's dismissal from service offended the principles of natural justice, in that, the Enquiry Officer was subordinate to the Manager of the appellant‑bank and "by no stretch of imagination I can presume that Mr. Rehmatullah could be able to decide the enquiry against the appellant". Learned Additional District Judge further held that "while looking into evidence I can safely observe that the respondent (appellant‑bank) used to get private work from his employees as alleged by the appellant and that on refusal he agitated cases against his employees". Learned Judge finally held that since respondent "had a service of so many years in the Bank and during all this time this was the first allegation against him, if at all any fault had been committed‑ by the appellant (respondent) he could be punished leniently" and "the last choice of the punishment taken against him was not in accordance with the natural justice".

Learned Judge of the High Court who heard the second appeal noticed that "there is no allegation of the violation of the rules" regarding the departmental enquiry held against the respondent. Learned Judge also rightly upheld that the first appellate Court could not have transformed itself as an appellate Authority sitting over the judgment of the administrative Tribunal" and also that "it is within the discretion of the administrative authority only to take a lenient or harsh view of the matter." However, the learned Judge agreed with the first appellate Court that since the Enquiry Officer was subordinate to the Manage of the appellant‑bank principles of natural justice were violated and on this view of the case he directed that "the appellant‑State Bank of Pakistan should hold the enquiry afresh through impartial agency to determine innocence or guilt of the respondent and only then the competent authority should pass appropriate orders".

We have heard the learned counsel for the parties in the light of the record before us. It has been throughout held that the departmental enquiry held against the respondent was in full accord o the rules; in fact no violation of the departmental rules was complained against. It was not even the case of the respondent during the departmental enquiry that the Enquiry Officer was biased and in this behalf the learned trial Judge has observed that there is no evidence that the respondent had raised objection that the Enquiry Officer was subordinate to the Manager of the Bank or that he had made any application to the effect that the Enquiry Officer was not impartial. Since no plea of bias was raised against the Enquiry Officer during the departmental enquiry and this plea was not even proved in evidence before the trial Court the finding of the learned Additional District Judge, so also the High Court, in this behalf is not rooted in evidence but is rather based on conjectures and surmises. This appeal must, therefore, succeed and is accordingly allowed with the result that the judgment of the first appellate Court as well as that of the High Court are set aside and the judgment and decree passed by the trial Court is upheld.

In the circumstances, however, the parties are left to bear their own costs. .

M. Y. H. Appeal allowed.

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