IN THE HIGH COURT OF SINDH AT KARACHI
C.P.No.D-95 of 2011
|
DATE |
ORDER
WITH SIGNATURE OF JUDGE. |
1. For hearing of CMA No. 14723/2021
2. For hearing of CMA No. 19913/2019
15.04.2022
Mr. Shoukat Ali Chaudhry advocate for the
petitioner
Mr. Muhammad Nishat Warsi DAG
-.-.-.-.-.-
Through
CMA No. 14723/2021, the petitioner seeks withdrawal of the amount deposited by
petitioner in terms of order dated 17.02.2021. It appears that this petition
was dismissed vide order dated 30.09.2015 for the following reasons:
“3. We have noticed that criminal proceedings
were initiated against respondent No.1 on account of allegations of
misappropriation of funds in his capacity as cashier. The petitioner lodged an
FIR and left the fate of the allegations to criminal proceedings. It is
admitted by the counsel for the petitioner that no departmental action was
taken. Even the letter of termination was not based on the allegations of
misconduct but was on the basis of the provisions of Section 12(1) of the
Standing Order Ordinance, 1968, which entitles the employer to terminate
services of an employee simplicitor. Insofar as limitation is concerned, we are
of the view that the period of limitation while a person is in jail is not to
be counted for the reason that limitation started after his acquittal and
eventual release from jail. It is an admitted position that upon his release on 12.08.2007 from jail, the respondent No.1 within 20 days
served a grievance notice which is to be served within 30 days under the law.
Thereafter the respondent No.1 also filed a Grievance Petition before the
Labour Court on 17.12.2007 which was also within time. The arguments that when
the respondent No.1 sought release of his salary, he could have also challenged
his termination, suffice to state that the service of the respondent No.1 were
terminated on the ground that his services cannot be made available during the
period of his incarceration in jail and there was no occasion for him to serve
the grievance notice while remained in jail. Secondly, the petitioner had two
options available at the same time i.e. to take departmental action against the
respondent No.1 for alleged misappropriation of bank’s funds and also initiate
criminal proceedings. The petitioner lodged FIR only. Thus the petitioner only
opted for initiation of criminal proceedings which culminated in respondent
No.1’s acquittal. The option for taking disciplinary action was never
exercised. It is well settled that even if criminal proceedings fail, the
departmental action, if available, can be taken and services can be terminated
if in the departmental proceedings allegations are established. As to the
argument that both the Courts below while reinstating the respondent No.1 back
in service did not grant right to the petitioner to take departmental action
against the respondent No.1, it is not for the Court to create a right for a
party which it voluntarily gives up by the afflux of time. Both these options
were available to the petitioner concurrently but it opted only for the
criminal action which failed. Both the Courts below did not commit any legal
error. On account of acquittal of respondent No.1 from the charges of
misappropriation, both the Courts below were justified in reinstating the
respondent No.1 back in service with back benefits. The counsel for the
petitioner further argued that someone else has been inducted in place of the
respondent No.1 after his termination. Suffice it to state that the principle
of last one first out is applicable in such cases. As the petitioner is a big bank and vacancies
continue to occur, the person who is lastly inducted as cashier is to be
accommodated in similar vacancy which may have already occurred or likely to
occur in near future. The respondent No.1 shall be treated to be in continuous
service from the date of his termination and shall be given all back benefits.
This petition is dismissed.
2. Order
passed by this Court was challenged before Honourable Supreme Court in Civil
Appeal No. 82/2016. The Honourable Supreme Court vide
order dated 26.04.2021 allowed the appeal, while setting aside the order passed
by this Court mainly as under:
“18. For reasons recorded above, we find that
the impugned orders/ judgments passed by the High Court as well as lower fora
are based upon a mistaken and erroneous view of the law and an incorrect
appreciation of facts and circumstances of the present case. These are
therefore not sustainable. The same are accordingly set aside. The order of
termination in simiplictor passed by the Appellant-Bank on 13.04.2006 is
accordingly affirmed, restored and upheld. Consequently, the Appeal is allowed.
“
3. Thereafter,
aforesaid application is submitted.
4. We have
heard learned counsel for the petitioner and DAG. Several notices were issued
against respondent No.1, but none appeared on his behalf. We have perused the aforesaid
orders and report of the Nazir, which is reproduced as under:
“It
is respectfully submitted that in compliance of Hon’ble Courts order dated
17-02-2021 Advocate for petitioner has deposited an amount of Rs.1,066,170
(Rupees One Million Sixty Six Thousand One Hundred Seventy Only) in shape
of Pay Order, being arrear of salaries of Mr.Zulfiqar Ali Shar w.e.f October
2015 to March 2019, which is lying/ invested with National Bank High Court
Branch, Karachi and some profit will also earned over the said amount. Copy of
Computerized Ledger is enclosed.”
5. In the
view of above circumstances, application for withdrawal of above amount is
allowed. Nazir is directed to return the same to the petitioner Bank after
proper verification and identification as per Rules.
JUDGE
JUDGE