IN THE HIGH COURT OF SINDH AT KARACHI
SUIT NO.903 of 2007
Plaintiff : Allahdino Khaskheli
Through
M/s Mansoor-ul-Haq Solangi
&
Imtiaz Manzoor Solangi, Advocate
Defendant : HBL,
through Mr. Faisal Mehmood Ghani,
Advocate
Date
of hearing : 6th May 2016
Date
of hearing : 8thAugust 2016
SALAHUDDIN PANHWAR, J. This
judgment will dispose of the above suit, filed by the
plaintiff against the defendants for Damages with following prayer (s):
a)
Declare
that the dismissal order is an unlawful, illegal, issued to mala fide act of the defendant no.2,
hence no force in law;
b)
Direct
the defendant to pay the damage amount Rs.7689312.80 by way of remaining
salaries, bonuses, leave encashment, provident fund, HBL Employees
Welfare Fund Units etc to the plaintiff;
c)
Grant
any other relief (s) that this Hon’ble Court may deem
fit in favour of the plaintiff against the defendants, according to facts and
circumstances;
d)
Cost
of litigation;
2.
Succinctly, relevant facts are that plaintiff
was appointed as an Officer Grade-III by defendant no.4, Habib Bank Ltd. (HBL), on 30.4.1990 ; promoted
to Grade-II in year 1999 on performance; served the HBL more than 16 years and
remained as task manager a different
HBL branches. It is further pleaded that defendant no.3 assigned discretionary
powers to plaintiff to expand the HBL business in area of Agriculture
Production Finance (APF) through initiating and sanctioning loans to Agriculturists
subject to submission of Agriculture Pass Books (APB); he (plaintiff) sanctioned APF loans on verification reports of
Agricultural Field Officer (AFO). He (plaintiff)
received a show cause from defendant no.3 dated November 28, 2005 regarding
not-verifying the APBs of various agriculture finances of million
of rupees at different branches so also sanctioning Agriculture Finances to
various borrowers against false books;
plaintiff replied the same denying allegations but it was not considered by
defendant nos.3 and 4. Plaintiff received second show cause notice dated
February 27, 2006 in continuation of 1st
show cause which the plaintiff also replied but his versions were not taken
into consideration by Inquiry Officer during course of inquiry proceedings. The plaintiff was later dismissed from service
vide letter No.TM/MAB/366550 issued by defendant no.2 which the plaintiff
claimed as illegal, wrong and malafide and even without proper hearing.
Plaintiff claimed his remaining service as 23 years hence calculated an amount
of Rs.7689312.80 which he could have received as per policy if his services
would not have been dismissed. Plaintiff also claimed damage to his reputation
due to manner of his dismissal from services. Plaintiff sent an application U/s
46 of IRO which was served upon defendant nos.1 & 4 but without any
fruitful result so plaintiff filed the suit.
3.
In response to notices of the suit, the defendant(HBL) filed written statement denying the
allegations and entitlement of plaintiff for damages; it was pleaded that plaintiff
was found guilty by Investigating Committee in matters of agriculture finance; report was submitted / placed
before competent authority and disciplinary inquiry was approved against
plaintiff. Show cause notice was issued and inquiry committee, consisting on three members, conducted
inquiry wherein plaintiff fully participated and concluded his defence; it was claimed that plaintiff was rightly dismissed
from services; it was pleaded that relation between plaintiff and defendant was
that of ‘master & servant’ hence
claim of plaintiff is not sustainable.
4. Out of the pleadings of the respective
parties, the following issues were struck:
1.
Whether
employment of the plaintiff was governed by law of master and servant? If yes,
whether any declaratory or injunctive relief can be granted?
2.
Whether
any employment benefits and salaries can be claimed or allowed for further
service where the employment is governed by the law of Master and Servant?
3.
Whether
the plaintiff has been illegally and unlawfully dismissed from service by the
defendant?
4.
Whether
the plaintiff sustained mental loss / damage after dismissal from service?
5.
Whether
the Defendant breached the contract of employment as per employment policies of
Defendants?
6.
Whether
the plaintiff has been dismissed from service after the disciplinary process?
7.
What
should the decree be?
5. In order to prove the issues, the
plaintiff filed his affidavit-in-evidence
and produced certain document (s); he was cross examined. The defendants on
their turn submitted affidavit in evidences of DW-1 Muhammad Mujatiba Bari as Aijaz Ahmed
Sheikh and produced certain documents; they were also cross examined.
6. While reiterating his pleadings, learned
counsel for the plaintiff has argued that it stood established / proved that
plaintiff was wrongly dismissed from services hence plaintiff is entitled for
the relief. He relied upon Abdul Aziz Khan vs. the Post Master General, Lahore
(2000 PSC 1248), Malik Gul Muhammad Awan vs. Federation of Pakistan (2013 SCMR 507), Municipal
Corporation of Delhi vs. Association of Victims of Uphaar
Tragedy (2012 SCMR 1549), Abdul Majeed Khan vs. Tawseen Abdul Haleem (PLD 2012 SC
80), Zakir Rasheed Khan vs.
Chairman, PIAC (2015 PLC 1461), unreported case CRP No.171/2013 (Mehboob Ahmed Soomro vs.
Federation of Pakistan).
7. On the other hand, learned counsel for
the defendants (HBL) stoutly argued
that since relationship between plaintiff and defendants (HBL) was that of ‘master
& servant’ hence no claim for future earning can be claimed by an
employee who is removed from employment; no relief of declaration or injunctive
nature can be claimed in such like matter. The reliance was placed on case
laws, reported as 2012 PLC (CS) (Supreme Court) 582; PLD 1962 (W.P) Karachi 899
and PLD 1967 Karachi-1. The principle of ‘undesirable
servant cannot be foisted upon an unwilling master’ was also insisted while
relying on case laws, reported as PLD 1961 SC 53; 1995 SCMR$ 453; 2002 PLC 124;
2003 PLC (CS) 11 and 2010 PLC (CS) 1436; the dismissal of plaintiff was pleaded
to be bonafide and legal and reliance was placed on
the case laws, reported as 2009 SCMR 903, 2007 SCMR 198 and 2001 PLC 721
(Supreme Court) on the point that gross negligence, disobedience and failure to
observe rules is also a ‘misconduct’. Reliance
was placed on 1999 SCMR 734, 2006 SCMR 104 and 2007 PLC 2007 (C.S) 348.
8. Having heard learned counsel for
plaintiff and defendants and have also meticulously examined the available
material. My findings on the issues with reasoning are as under:-
F
I N D I N G S
Issue
No.1 As discussed.
Issue No.2 Affirmative.
Issue No.3 Negative
Issue No.4 Negative
Issue No.5. Affirmative.
Issue No.6 Affirmative.
Issue No.7 Suit of the plaintiff is dismissed.
ISSUE NO.1.
Whether employment of the plaintiff was
governed by law of master and servant? If yes, whether any
declaratory or injunctive relief can be granted?
9. The issue no.1 is purely legal in its nature which is consisting on two parts. It is now a well settled principle of law that the relationship between a
Corporation, having no Statutory Rules, and its employees could be nothing but that of ‘master
and servant’. Though, no reference is required for a well
established principle of law however the reference to the case of
‘PIA Corporation v Suleman Alam
Rizvi (2015 SCMR 1545) is made hereunder:-
‘8.
There is a plethora of judgments to the effect that no petition lies in the
matters pertaining to the terms and conditions of service of employees
of a Corporation, where such terms and conditions are not governed by statutory
rules. It is an admitted position that the terms and conditions of
the employees of the appellant Corporation are not governed by statutory Rules,
and is now well settled that the relationship between the appellant
Corporation and its employees is that of a ‘master and servant’.
(Emphasis supplied)
A corporation may frame regulations, instructions or directions
for its internal affairs but same shall not equate with ‘Statutory Rules’ which requires prior consent of government; gazetting
thereof and approval by the Assembly. A reference in this regard may be made to
the case of Pakistan International
Airline Corpn. V. Tanweer-ur-Rehman
(2010 PLC SC 676) wherein it is held that:
‘18…. .
It was further held that ‘ the PIAC has the
regulations which have been framed by the Board of Directors of the PIAC, pursuant
to the power contained in section 30 of the Act ; however, there is nothing on record to indicate that the above
regulations have been framed with the previous sanction of the Central
Government or that they were gazetted and laid before
the National Assembly in terms of section 31 of the Act; …’
(Emphasis supplied)
Nothing has been brought onto the record
by the plaintiff to establish that the defendants has any Statutory Rules who (defendants)
otherwise claim its status as ‘Corporation’,
having no Statutory Rules hence the
burden was upon the plaintiff to have brought Statutory Rules, if any, on record which he didn’t though claimed
himself capable of producing the same, as is evident from his cross examination:
‘It is incorrect to say that the defendant Bank has no
statutory Rules. At this moment I cannot produce such statutory Rules of the
defendant Bank. I can produce these Rules later.
Thus, first
part of the issue no.1 is answered in ‘affirmation’. As regard the second part of the issue no.1, it shall
be suffice to refer the following cases wherein the honourable Apex Court has
categorically held regarding right of an employee of ‘Corporation’ as:
‘PIA Corporation v Suleman Alam Rizvi (2015 SCMR 1545):
8. There is a plethora of judgments to the effect that no
petition lies in the matters…….. The private respondents remained indolent in
the matter and approached the Federal Service Tribunal only after the
Tribunal’s judgment dated 28.2.2004, being relied upon by them for seeking benefits,
was passed by the Federal Service Tribunal. There proceedings before the Tribunal abated as noted above, and thus the only course left to the said respondents
was to file a suit for redressal of their grievance.
UBL v Ahsan Akhtar (1998 SCMR 68)
’10…..The facts of
the instant case warrant interference by this Court at this stage. It had been
consistently held by this Court inter
alia in the cases referred to hereinabove in para.
8(i) to (viii) thatrelationship
between a Corporation and its employees was that of master and servant and that
the remedy for wrongful termination of service of an employee was a suit for damages
and not relief for reinstatement.
Pakistan International Airline Corpn. V. Tanwee-ur-Rehman (2010 PLD SC 676):
18…. petition’. Likewise, in Raziuddin v. Chairman
PIAC (PLD 1992 SC 53) , this Court has held that ‘ the legal position obtaining
in Pakistan as to the status of
employees of the Corporation seems to be that the relationship between Corporation and its employees is that of
Master and Servant and that in case of wrongful dismissal of an employee
of the Corporation, the remedy, is to claim damages and not the remedy of
reinstatement;…….., it has been held that ‘ an employee of a Corporation in the absence
of violation of law or any statutory rules could not press into service the
Constitutional jurisdiction or civil jurisdiction for seeking relief of
reinstatement in service; his remedy against wrongful dismissal or
termination is to claim damages’.
Federation
of Pakistan V Muhammad Azam Chattha
2013
SCMR 120
‘The question is that a person whose fate has been so
determined, although he was a contract employee, had no legal entitlement to
continue in contract employment because subject to holding him entitled to draw
salary in lieu of the notice period, he could not have agitated the matter in
any manner. In addition to it, it is a cardinal principle of law that a
contract employee instead of pressing for his reinstatement to serve for the
leftover period can at best claim
damages to the extent of unexpired period of his service.
(Emphasis supplied)
From above it can safely be concluded that such an employee shall not be entitled for any other relief except that of ‘damages’ , including to extent of unexpired period of his service, per
contract. In other words, if the ‘wrongful
termination / dismissal’ would not have happened the ‘servant’ is believed to have continued with his job. This squarely falls within meaning of ‘special damages’ as has been defined
in the case of Abdul Majeed Khan v. Tawseen Abdul Haleem (2012 PLC (C.S)574, relied by counsel for
the defendants wherein term ‘special
damages’ has been defined as:
‘3. At this stage,
it is to be noted that there are two types of damages namely; ‘special damages’
and general damages’. The term ‘general damages’ refers to the special
character, condition or circumstances which accrue from the immediate, direct
and approximate result of the wrong complained of. Similarly, the term ‘special
damages’ is defined as the actual but not necessarily the result of injury
complained. It follows as a natural and approximate consequence in a particular
case, by reason of special circumstances or condition…….
‘6. The principle is, therefore, well
settled that damages are intended to put
a person in the same position as he would have been in, had he not received the
injury. We will endeavor to examine the measure of damages which the
plaintiff is entitled to get in the light of the above principles. In the
instant case, the plaintiff is only entitled to get as special damages all
expenses actually and reasonably incurred during the medical treatment of his
family members; on the litigation before the competent form, whereby, his
claims were accepted and the orders of the authority were set aside; and loss of earnings which would have
accrued to him due to non-payment of salary, e.tc, subject to the condition
that the same are specifically pleaded and proved. ….
(Emphasis supplied)
In the same case, it was observed by his
lordship Mr. Justice Khilji Arif
Hussain as:
‘The above analysis show that where an employee who was
wrongfully dismissed from service to his position, he is entitled to that salary for the
period he remained out of job from his employer, ….
I am conscious that in matters of ‘Master
& servant’ , the ‘Master’ has some privileges over the ‘servant’ and
can bring an end to such relationship leaving the ‘servant’ with no right to claim ‘reinstatement’ , however, such privilege does not authorize the ‘Master’ to ‘wrongfully dismiss/ terminate’. There appears no reason or logic
behind the settled principle of law that in event of ‘wrongful termination /
dismissal’ his / her rights have been confined only to ‘damages’ to extent of his / her expired
service.
10. Thus,
I can safely conclude that since ‘fate’ of
such a lis shall entirely rest on determination of
a question that ‘whether dismissal /
termination was wrongful or otherwise? hence declaration to such extent only is sustainable in such like matter. Now, I can safely answer
the second part of the issue no.1 as ‘negative’ with an exception stated
above.
ISSUE
NO.2
Whether any employment benefits and salaries can be
claimed or allowed for further service where the employment is governed by the
law of Master and Servant?
11. In
view of the discussion made while attending the issue no.1, the answer to the
issue no.2 shall need no much debate but shall, without any hesitation, be answered in ‘affirmation’.
ISSUE
NO.3, 5 & 6.
Whether the plaintiff has been illegally and unlawfully
dismissed from service by the defendant?
Whether the defendant breached the contract of
employment as per employment policies of Defendants?
Whether the plaintiff has been dismissed from service
after the disciplinary process?
These issues are strongly interlinked with each other hence needs to be discussed jointly. The light, provided by
judgments of honourable Apex Court, on matters of ‘Master & Servant’ permit me to say that to succeed in a case
for ‘damages’ the plaintiff (servant) shall not succeed unless and
until he / she establishes his / her termination / dismissal as ‘wrongful’ hence the burden shall
remain upon the plaintiff (employee). Before
proceeding further, it is relevant to refer Black’s Law Dictionary to unfold meaning of the term ‘’wrongful’ which is:
Wrongful. Characterized by unfairness or
injustice.
2. Contrary to law, unlawful (wrongful termination). 3. Of a person not
entitled to the position occupied.
Prima facie, the
plaintiff will be required to prove / establish that his / her removal /
termination or dismissal was either unfair, unjust or contrary to law or the
manner through which he / she was removed /terminated or dismissed was falling
in all or any of these qualities. Since, an employee of ‘corporation’ does not
fall within meaning of ‘civil servant’ hence
such employee shall not claim to be
enquired / tried as a civil servant shall
be. However, since every body, including an employee
of corporation even is entitled to ‘fair-trial OR due process’. The term
fair trial or due process shall fall short of its true meaning if :
i)
the
person has no notice of proceedings which are to affect his / her rights;
ii)
the
person is not given a reasonable opportunity
to defend himself;
iii)
the
adjudicatory tribunal or forum is constituted in a manner that it does not
convey a reasonable assurance of its
impartiality;
iv)
the
adjudicatory tribunal or forum is not otherwise
competent;
I
am guided in concluding so by the case of Ishtiaq Ahmed v. Hon’ble
Competent Authority (2016 SCMR 943) wherein it is held
:
4. The right of due
process is not new to our jurisprudence and finds expression in the provisions
of Article 4 of the Constitution. This right has been interpreted by this Court
in several pronouncements. The case of New
Jubilee Insurance Company v. National Bank of Pakistan (PLD 1999 SC
1126) summarizes the features of that right very aptly. It is held that the
right of due process requires that a person shall have notice of proceedings
which affect his rights; such person must be given a reasonable opportunity to
defend himself; the adjudicatory tribunal or forum must be so constituted as to
convey a reasonable assurance of its impartiality and that such tribunal or
forum must possess competent jurisdiction. Insofar as the right of fair trial
under Articled 10A of the Constitution is concerned in Suo Motu Case No.4 of 2010 (PLD 2012
SC 553) that right has been interpreted to ensure the grant of a proper hearing
to an accused person by an unbiased competent forum; that justice should not
only be done but be sent to be done. The above noted features of this right
share attributes associated with the fundamental right of access to justice
enunciated by this Court in Benazir
Bhutto v. Federation of Pakistan (PLD 1988 sC
416 at page-489), Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC
324) and reiterated in Liaquat Hussain v.
Federation of Pakistan (PLD 1999 SC 405 at pge-562). This right casts
on an adjudicatory tribunal or forum a duty to treat a person in accordance
with law, to grant him a fair hearing and for itself to be an impartial and a
fair tribunal. Upon comparison, the said constitutional conditions requirements
expand the principles of natural justice which according to our jurisprudence
are treated as inherent rights that underlie the elements of fairness, both in
terms of hearing as well as impartiality of the forum.
The
plaintiff no where denied that no notice (show cause) was served upon him rather
he admits that show cause notice dated November 28, 2005 (Annexure-C) was served upon him (plaintiff) which contained following charges/allegations:-
1)
Taking
bribe from the borrowers;
2)
Gross / willful
negligence, inefficiency and indolence in performance of duties;
3)
Misuse of
discretionary powers;
4)
Willful loss to
bank’s business;
5)
Breach of rules &
regulations of the bank;
The
plaintiff admittedly submitted his
reply to such show cause notice. The record further shows that plaintiff was
served with 2ndShow cause
notice (Annexure-D) which, being material is reproduced hereunder:-
2nd SHOW CAUSE
NOTICE.
We refer to Inquiry
Notice bearing No.SMA.MBK/033 dated 21.01.2006 and
subsequent inquiry held in connection with the charges leveled against you vide
Show Cause Notice No.SMA/MBK/2371 dated 28.11.2005.
The inquiry
officer, on the basis of documentary and recorded evidence, has found you
guilty of the charges leveled against you vide show cause notice No.SMA/MBK/2371 dated 28.11.2005. A Photocopy of inquiry
report is enclosed herewith.
Since the charges
leveled against you constitute misconduct, you are hereby issued 2nd
Show Cause notice to explain in writing within seven days from the receipt of
this letter as to why your service should not be dismissed on account of the
charges proved against you.
In case you want to
avail the opportunity of personal hearing, you may do so within the above said
period.
The
above 2nd show cause notice is self-explanatory of following facts:
i)
the
plaintiff first was served
with show cause notice;
ii)
Inquiry
Committee was then constituted;
iii)
the plaintiff fully participated in inquiry proceedings and even
enjoyed the opportunity of cross examination;
The
above fact finds support from cross-examination of the plaintiff himself whereby he admitted that:
‘I am shown Enquiry Proceedings annexed with the
written statement and say that it bears my signature at every page.’
‘I see annexure ‘M’ to written statement and say that
it bears my signature at every page (containing 48 pages). I produce the same
as Ex.P/5).
‘Annexure-M is a
document showing constitution of committee, acknowledgment of plaintiff to have
received show cause; questionnaire, examination of representative of bank &
that of plaintiff himself’
It
is also material to mention that after completion of examination of either sides i.e representative of bank and that of plaintiff, the Chairman of the
Enquiry Committee had following specific question (s):
‘Q: Were you
pressurized during the course of enquiry from any side for deposing or not
deposing, for producing not producing any documents?
A: No.
Q: Do you
want to produce any other document or witness?
A: No.
Q: Were you
at liberty during the course of enquiry?
A: Yes.
Q: Are you
satisfied with the enquiry proceedings?
A: Yes.
The
above is sufficient to indicate that requirement of ‘due process’ stood fulfilled and since the plaintiff during whole process of inquiry proceedings did
not allege any malafide on part of the ‘Enquiry
Committee’ or any of its members and even the manner in which it (inquiry) was conducted; he (plaintiff) even never showed any
concern or grievance against the Enquiry committee at relevant / material times hence
the plaintiff at any subsequent stage was / is not legally entitled to take an exception to his own actions and
admissions, particularly when the plaintiff himself
‘reaffirmed’ said facts in his
cross-examination as:
‘It is correct
to say that before, during and after the enquiry proceedings against me, I had
raised no objection either against the Enquiry Officer, proceedings and / or
conduct of enquiry.’
The
above categorical admission of the
plaintiff himself is sufficient to
show that ‘impartiality of the Enquiry Committee’ was also not disputed.
12. Now, the question, if any, remains to be examined is whether dismissal of the
plaintiff was ‘dismissal for cause’ or otherwise, which means :
‘A
dismissal of a contract employee for a reason that the law or public policy has
recognized as sufficient to warrant the employee’s removal.’
While examining such a question the terms ‘wrongful’ &‘dismissal for cause’ are always to be kept in view. The ‘Master’
can well be sole authority to determine ‘policies / instructions’ for its internal affairs, including the one
applicable to its ‘servants’ which shall not be open to any exception if same are not in direct conflict with fundamental rights. A ‘servant’ while entering into contract acknowledges all the relevant
instructions and directives even if same are not specifically mentioned in its service contract but are of general
application and qualify the test of being not in conflict with fundamental rights. Therefore, I can
safely say that policies may vary from
‘master’ to ‘master’ because the policies are drawn subject to nature of work /
business. The defendant is a financial
institution (a bank) which is custodian
of public money but it (a bank) however
operates for its own business by
inviting customer(s) through
different modes, including ‘finance
facilities’. Needless to say that since all these operation(s) / affairs are dealt by giving certain discretionary powers to the ‘manager’ .
In
the case of Ghulam Mustafa Channa
v. MCB Ltd. 2008 SCMR 909, the honourable Supreme Court affirmed the
view of Honourable Supreme Court of India in the case of Divisional Collector, K.S.R.T.C v. A.T. Mane AIR 2004 SC 4761
wherein it was held:
‘..when a person is found guilty of misappropriating
corporation’s fund there is nothing
wrong in the Corporation losing confidence or faith in such a person and awarding a punishment of dismissal.
In
said case of Ghulam Hussain (supra)
honourable Supreme Court held that:
…The business of bank is based on mutual trust between
bank and the customers and further that the bank acts as a custodian of the
public money, any slightest doubt or suspicion with regard to its activities
and transaction and dishonesty of its employees would shake the confidence of
the customers resulting in ruination of
the business of the Bank. No exception can be taken to the above
weighty observations made by the High Court while refusing reinstatement of the
petitioner and ordering his dismissal. A natural corollary to the above would
be that the petition for leave to appeal filed against the refusal to grant back
benefits automatically become infructuous.
In
another case of Izzat Baig Awan v. Habib Bank Ltd.
2004 SCMR 98 it is held that:
3. A proper
show-cause notice had duly been issued to the petitioner which he had the
opportunity to meet with . His absence was not only
absolutely clear but besides that he had also gone into abscondence
which happened to enhance his absence. The institution of bank is one of
trust reposed by the public at large and they, in the peculiar nature of the duties of their employees, cannot afford
the breach of trust by retaining in service people who are involved in
criminal cases and whose absence therefrom, as it was in the instant case, was
not only obvious but unavoidable on the part of the official concerned. The
absence whether avoidable or unavoidable is the sole headache of the official
but so far as the bank is concerned, it cannot afford the luxury of the absence
as well as the loss of goodwill.
(Emphasis supplied)
The above discussion permits me to
conclude, in short, that the ‘manager’ is
the designata on whom a faith of millions of rupees
is placed, therefore, a slightest mistrust,
if proved, may well be a ground for such an institution for dismissal of such employee even.
13. Now,
I would revert to the merits of the case, the present plaintiff was charged with
number of allegations, including one of taking
bribe’ which however was not
proved during course of inquiry. I am conscious that the plaintiff has taken
plea of ‘malafide’ on part of the
Enquiry Officer and that of being not properly heard / prosecuted, which, legally cannot sustain at this stage in view of above referred
admissions of the plaintiff himself regarding
his entire satisfaction in ‘inquiry committee and proceeding,
conducted by it’.
The
plaintiff in his cross examination categorically
admitted that:
‘It is correct that
I was Branch Manager and being Branch
Manager I was responsible for all the affairs of branch.
The plaintiff has taken a plea of ‘discretionary powers’ in sanctioning
the loans. I have no hesitation in saying that one cannot act in against of the
policy or direction in name of the ‘discretionary
powers’ because such powers even
are to be exercised fairly, justly and
evenly, as held in the case of Abid Hassan
v. P.I.A.C 2005 SCMR 25 that:
’16. The judicial consensus seems to be that the functionaries
of any organization or establishment cannot be allowed to exercise discretion
at their whims , sweet-will or in any arbitrary manner; rather they are bound
to act fairly, evenly and justly.
The plaintiff produced such directive as
Annexure-B alongwith his affidavit in evidence. The operative and relevant part
thereof is reproduced hereunder:-
‘We are confident that you will exercise the discretionary
powers with due care and prudence in favour of bonafide
farmers of the Union Council / Town Committee allocated to your ranch only
after assessing their genuine needs and actual requirements of the agricultural
inputs in accordance with policies and guide lines provided by Head
Office. You are advised to please go through Credit Division, RG
Karachi circular No.2M/AGRI/1152 dated 11.07.2000 and all other relevant
circulars containing instructions carefully for meticulous compliance. ‘
14. It
is worth to add here that if an act, even may be claimed to be under discretionary
powers, if fails to qualify the requisite tests then it shall not have
protection available for ‘bonafide exercise of powers’ but would be considered as
‘misuse of powers’. I am guided in
such conclusion with the case of Abid Hassan (supra)
wherein it was held:
“14. in his Treatise ‘Discretionary Powers’ which is Legal
Study of official Discretion D.J. Galligan has
acknowledged that the general principles that discretionary decisions should be
made according to rational reasons means; (a) that there be findings of primary
facts based on good evidence, and (b) that decisions about the facts be made
for reasons which serve purposes of the statute in an intelligible and
reasonable manner’. According to the celebrated author,
the actions which do not meet these threshold requirements are arbitrary, and
may be considered a misuse of power.
Therefore, at no material times the
plaintiff (manager) was legally justified to grant / sanction loans at
his own whims and wishes but was required to follow the directives, issued by
Bank (defendants). Here, it would be
relevant to refer questions asked from plaintiff during his examination in
enquiry so as to see whether plaintiff exercised discretionary powers fairly and followed the directives properly
which are:
Q3. It means you had
disbursed unqualified loans as 69% there-from has become classified as loss,
which shows that I have rightfully charged upon you for gross / willful
negligence, inefficiency, indolence in performance of duties, misuse of
discretionary powers and willful loss to bank’s business. From the figure when
69% loans amongst total disbursement become loss how you can deny that charges
are wrongfully leveled against you?
A.
It caused to my transfer from the branch after short time.
The answer reflects that the plaintiff did
not deny allegation but took his transfer from branch as sufficient for said
charge / allegation.
Q6. Defendant is well
aware that under the directives of HOK, RHQ itself or through sitting Managers
got authentication of genuineness of pass books kept as security against agri.
loans. After this exercise pass books of his period have been declared as
bogus. Defendant can not deny that in administration
always correspondence undertaken at the late stage supersede previous one,
hence authenticity obtained in recent days can only be relied upon. What he
will say in this respect?
A When the loans were sanctioned we were
provided genuine pass books and other documents duly verified by the Revenue
Officials in the year 2003 if now the higher authorities of the bank again
approached the Revenue officials and they declared the said pass books as bogus
then what is my fault.
Although per directives , exhibited as P/W-4,
the manager was to:
ii)
To scrutinize / take the assistance of Branch Officers / AFO in
the scrutiny, verification, processing and sanction of finances strictly in accordance
with the procedure;
iii)
He has to ensure proper documentation, disbursement, control
and monitoring of the finance accounts / documents etc
with the help of his Branch staff.
iv)
He will maintain upto date record of specimen signatures of
Revenue officials of the area for verification purposes;
Thus, duties of the
manager (plaintiff) was not
confined simply to sanction the loans merely on production of a document under
claim of verified but his
responsibility was much more than that. The position shall stand clear from
another question, posed to plaintiff
during enquiry which is:
Q10 Is it
mandatory to verify the signatures of Revenue Authorities on receiving letters
from them with regard to genuineness or otherwise of pass books?
A Yes we verify the
signatures of Revenue Authorities on such documents which is also requirement
of CAD.
The next questions,
posed to the plaintiff during inquiry, leaves no room for the plaintiff
to take plea of ‘discretionary powers’ or
‘bonafide’ which
is:
Q11 If you have to verify the signatures
compulsorily on those papers which is also requirement of CAD then why you have
not verified signatures on some certificates (PW-14/05) in certificates of 2004
signatures have been verified but the same has not been done in certificates
obtained in the year 2005?
A It
is omitted.
Q13 When some pass books pertaining to the
defendant tenure and branches were declared fake / bogus by the Revenue
Authorities why you did not approach to higher Authorities of Revenue if you
are confident that those pass books are genuine?
A. We
feel ourselves helpless as they are taking different positions on different
time.
The above position makes it clear that the
plaintiff was prima facie negligent
towards his mandatory obligations which always required him to act judiciously strictly as per directives
of the defendants (bank). The act of
defendants (bank) to dismiss the
plaintiff on finding the plaintiff guilty of gross negligence cannot be said to be ‘wrongful’ but appears to be one ‘for a cause’ as the
proven negligence resulted in causing ‘loss’
to defendants (bank) which,
without any dispute, is a financial institution.
Accordingly,
I answer the issue no.3 as ‘negative’ while
the issue nos.5 and 6 as ‘affirmative’.
ISSUE
NO.4
Whether the
plaintiff sustained mental loss / damage after dismissal from service?
14. There
can be no denial that a ‘wrongful’ act
may result in causing mental loss and damages but one ,
in law, cannot succeed for such
relief by uttering words ‘mental
loss or damages’ but one shall be
required not only to plead specifically every
fact, constituting claimed loss / damage under each had but also to prove the same by leading evidence, as per required standard. Reference, if any,
can well be made to the case of Abdul Majeed Khan (supra).
In the instant case, the plaintiff in his
pleading (plaint) had asserted as :
‘Para-13………..It is to be mentioned here that due to his
dismissal from service, the Plaintiff’s reputation, credibility has been
damaged within financial institutions and also in the job market, which have
directly and indirectly damaged on his personality in the society at large.’
but he(plaintiff)
neither given any detail of mental suffering / damage except that of
calculating his service benefits with reference to his unexpired service. The
plaintiff even did not attempt to produce a single document to establish mental
suffering or other special damages therefore, without much debate, the issue
under discussion shall conclude in no other answer but ‘negative’. It is worth to add here that a ‘wrongful dismissal’ would
not entitle one to claim damages from employer under head of ‘loss to reputation’ as has been held
in the case of ‘Abdul Majeed Khan v. Tawseen Abdul Haleem & others (2012 PLC (C.S) 574 as:-
’24. The above analysis show that where an employee who was
wrongfully dismissed from service to his position he is entitled to that salary
for the period he remained out of job from his employer, but he
is not entitled to sue in tort to claim damages on account of the injury to his
reputation due to wrongful dismissal or for tort of malicious prosecution of
disciplinary proceedings.’
Further, in the same case, it was held
that disciplinary proceedings would not be taken as ‘malicious prosecution’ so as to sustain a suit for recovery of
damages for ‘malicious prosecution’ which
(tort for malicious prosecution)
otherwise has its own ingredients.
’26. I am in agreement with the reasoning
recorded in the cases of Gregory and Muhammad Amin (supra) that remedy of tort normally cannot be extended to
departmental disciplinary proceedings.
Thus, I answer this issue in ‘negative’.
ISSUE
NO.7
14 In view of the foregoing discussion on
the above issues, the suit of the plaintiff is hereby dismissed with no order
as to costs. Let such decree be drawn.