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,
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.
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’.
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; …’
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.
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. ….
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.
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?
Q: Do you want to produce any other document or witness?
Q: Were you at liberty during the course of enquiry?
Q: Are you satisfied with the enquiry proceedings?
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.
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’.
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’.
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.