PLJ 1996 Karachi 413
Present: ABDUL HAFEEZ MEMON, ACTING CHIE? JUSTICE AND NAZIM
HUSSAIN SIDDIQUI, J. HABIB BANK LTD.-Petitioner
versus MESSRS PAKISTAN INDUSTRIAL PROMOTERS (PVT.) LTD. etc.-
Respondents
Constitutional Petition No. D-1358 of 1995 dismissed on 30-10-1995.
Constitution of Pakistan, 1973-
—- Art, 199 read with Art. 29 of Establishment of the office of Wafaqi Mohtasib (Ombudsman) Order No. 1 of 1983-Writ jurisdiction-Invoking of~Jurisdiction of-Question whether validity of any action taken under Order No. 1 of 1983 can be examined-When action is taken under a special statute it must fulfil conditions of that statute in order to gain validity of action-Case has been dealt with within four corners of provisions of order-No jurisdiction in the matter-Petition dismissed.
[P. 418] A
Usman Ghani Rashid, Advocate for Petitioner Qaidr H. Sayeed, Advocate for Respondents No. 1 S. Tariq Ali, Standing Counsel.
JUDGMENT
Nazim Hussain Siddiqui, J.--The Petitioners have challenged the orders dated 30-10-1991 and 1-9-1994 of the respondents No 2 and 3 respectively. The facts relevant for decision of this Petition are as follows :-
2. The respondents No. 1 M/s. Pakistan Industrial PROMOTERS (Pvt) Limited since 1978 were maintaining account No. 403327/72 with the petitioners Habib Bank at their SITE Branch, Karachi. It is alleged by the respondents No. 1 that an amount of Rs. 34,73,400/- was withdrawn from their said account through bogus cheques, which were issued during the period from 5-1-1989 to 19-1-189. The respondents No. 1 filed a complaint before the respondent No. 2 Wafaqi Mohtasib at Karachi, and claimed the following reliefs:
"That the Bank may be directed to explain its position with regard to the gross negligence and carelessness in handling our account and maintaining the record in respect of it and should be ordered to reverse and delete all the bogus entries and all/any mark up/interest and added thereto as a consequence thereof viz. the forged documents in our Account No. 40332779."
3. The respondents Nos. 1 have claimed that the petitioners bank acted in flagrant violation of the norms of banking practice and procedure, in as much as the bank issued cheque book against forged requisition slip dated 3-1-1989. According to the respondents No. 1 these acts of omission and commission on the part of the petitioners by themselves speak about their mis-conduct, mal-administration, lack of vigilance, breach of fiduciary obligations and trust. The respondents No. 1 have claimed that these acts could not be done solely by any outsider and this indeed is a glaring example of "mal-administration" on the part of the petitioners. Further, it is said that without connivance of the staff of the petitioners, the forger of the requisition slip and the cheques could not know about the account number
of the respondents No. 1 nor the amount standing in their balance.
4. The Petitioners have admitted that the respondents were maintaining account at their SITE Branch and on the basis of the requisition slip dated 3-1-1989 cheque book containing 100 cheques bearing No. 07353201 to 07353300, was issued and from that cheque book 16 bearer cheques were issued between 5-1-1989 to 19-1-1989 for the total amount of Rs. 34,73,400/- and payment was made by the petitioners. It is the case of the Petitioners that on 6-2-1989 one Abdul Jalil made inquiries about the address of the respondents No. 1 from the staff of the petitioners and this created doubt in the mind of the staff that being holder of bearers cheques of respondents No. 1 he was not aware of their (respondents No. 1) address. Immediately, thereafter, the respondent No. 1 were contacted and said Abdul Jalil was handed over to the F.I.A. and the case was registered. The Petitioners have claimed that the account of respondents No. 1 was properly
handled with care and there was no negligence on their part. The Petitioners have also claimed that they have filed C.P. No. 157/1990 before this Court against the Judgment dated 15-8-1989 passed by the Special Court whereby accused Abdul Jalil and Syed Imdad Hussain were acquitted. It is urged that since the aforesaid petition is still pending for decision, the respondents No. 1 cannot insist for deletion of the said entries till said petition is finally decided.
5. The respondent No. 2 in his impugned Order dated 30-10-1991 held that it was an admitted position that forgery was committed. He observed that petition pending before this Court in respect of said forgery, is with regard to the criminal liability of the accused persons involved is said matter. He recommended for reversing all the debit entries made in the account of the respondents No. 1 and remit and mark up/interest as the consequence thereof and also ordered for reporting compliance of his recommendations in his officer by 30th November, 1991. The petitioners made representation, under Article 32 of the Establishment of the Office of Wafaqi Mohtasib(Ombudsman) Order No. 1 of 1983, hereinafter called Order No. 1 of 1983, before the President of Pakistan, who vide order dated 1-9-1994 as communicated by the respondent No. 3, had rejected the same. In this petition, both the aforesaid orders have been impugned by the petitioners.
6. In order to appreciate the points involved in this petition, it would be useful to reproduce the definitions of the words 'agency' and 'maladministration' and also Articles 9 and 29 of the Order No. I of 1983 which are as under :-
"Agency" means of Ministry, Division, Department, Commission or office of the Federal Government or a statutory corporation or other institution established or controlled by the Federal Government but does not include the Supreme -Court, the Supreme Judicial Council, the Federal Shariat Court or a High Court;
"Maladministration" includes-
(i) a decision, process, recommendation, act of omission or commission which--
(a) is contrary to law, rules or regulations or is a departure from established practice or procedure, unless it is bonafide and for valid reason ; or
(b) is arbitrary or unreasonable, unjust, biased, oppressive, or discriminatory; or
(c) is based on irrelevant grounds; or
(d) involves the exercise of powers, on the failure or refusal to do so, for corrupt or improper motive, such as, bribery, jobbery, favourtism, nepotism and, administrative excesses; and '
(ii) neglect, inattention, delay, incompetence inefficiency and inaptitude in the administration or discharge of duties and responsibilities;
Article 9. Jurisdiction, functions and powers of the Mohtasib. (1) The Mohtasib may on a complaint by an aggrieved person, on a reference by the President, the Federal Council or the National Assembly, as the case may be, or on a motion of the Supreme Court or a High Court made during the course of any proceedings before it or of his own motion, undertake any investigation into any allegation of maladministration on the part of any Agency or any of its officer or employees;
Provided that the Mohtasib shall not have any jurisdiction to investigate or inquire into any matters which -
(a) Are sub judice before a Court of competent jurisdiction or judicial tribunal or board in Pakistan on the date of the receipt of a complaint, reference of motion by him; or
(b) relate to the external affairs of Pakistan or the relations or dealings of Pakistan with any foreign state or government; or
(c) relate to, or are connected with, the defence of Pakistan or any part thereof, the military, naval, and air forces of Pakistan, or the matter covered by the laws relating to those forces.
(2) Notwithstanding anything contained in Clause (1), the Mohtasib shall not accept for investigation any complaint by or on behalf of a public servant of functionary concerning any matter relating to the Agency in which he is, or has, working in respect of any personal grievance relating to hi service thereon.
(3) For carrying out the objectives of this Order, in particular for ascertaining the root causes of corrupt practices and injustice, the Mohtasib may arrange for studies to be made or research to be conducted as may recommend appropriate steps for their eradication.
(4) The Mohtasib may set up regional office as, when and where required.Article ,29. Bar of Jurisdiction. No Court or other authority shall have jurisdiction--
(1) to question the validity of any action taken, or intended to be taken, or order made, or anything done or purporting to have been taken, made or done under this Order ; or
(2) to grant an injunction or stay or to order in relation to any proceedings before, or anything don* or intended to be done or purporting to have been done by, or under the orders or at the instance of the Mohtasib." Mr. Usman Ghani Rashid learned counsel for the petitioners strenuously argued that this case is not covered by the provisions of Article 9 of the Presidential Order I of 1983 and by no stretch of imagination the dispute could be taken to within the ambit of maladministration as defined in the said Order. He also submitted that the jurisdiction of respondent No. 2 does not extend to all the disputes emanating from civil liabilities. Learned counsel also contended that it is just possible that mischief may have been done by the respondents No. 1 through absconding accused Ch. Saleem.
8. As against above, Mr. Qadir H. Sayeed learned counsel for respondents No. 1 submitted that the petitioners, before the respondent No. 2, while admitting the factum of fraud, had only taken two pleas namely, that alleged forged bearer cheques, prima facie, appeared to "naked eye as proper" and secondly, the petitioners have filed the Constitution Petition No. 157/1990 before this Court, which is till pending for decision. He also argued that it has never been the case of the Petitioners before the Special Court (Offences in Banks) at Karachi, and respondent No. 2 Wafaqi Mohtasib that absconding accused Ch. Saleem had any link whatsoever with the respondents No. 1. Learned counsel also submitted that, albeit, the alleged fraud was committed in the year 1989 and inspite of the fact that a period of about seven years had passed, but the petitioners never directly or indirectly implicated the respondents No. 1 , nor any kind of legal proceedings were
taken against them. The counsel concluded that this by itself indicates that the petitioners were fully convinced that said fraud was committed by their staff and the respondents No. 1 were neither responsible for it nor they knew about the person or the person, who had committed said fraud.
9. We have thoroughly examined the respective contentions of the parties and are of the view that the petitioner are squarely responsible for the maladministration as defined in the Order I of 1983. The object of Order No. I of 1983 is to diagnose, investigate, redress, and rectify any injustice done to a person, through maladministration. It is not disputed, nor it could be disputed that the petitioner are agency, as defined in the said order. It being so, that respondent No. 2 had the jurisdiction in the matter arising from maladministration of the Petitioners, it is an admitted fact that an amount of Rs. 34,73,400/- was illegally withdrawn from the account of respondents No. 1, through forged bearer cheques, which were obtained on the basis of fake/bogus requisition slip. Learned Special Court referred to
earlier in its judgment held that the signatures on the 16 bearer cheques and requisition slip were dis-similar to the signatures of Mr. Muhammad Rashid Siddique and Mr. Shafiq Ahmad Khan, the two directors of respondents No. 1. It is also evident from said judgment that the signatures of above named two persons were forged. Forgery was established by the evidence brought on record, including the testimony of Mr. Zafar Mahmood Hand-Writing Expert. Further, it is clear from said judgment that forged requisition slip was printed on a much thinner paper and also the stamp of the petitioners bank bearing the words "SITE BRANCH" was apparently different. We are not making any comments on the said judgment of the Special Court, as the matter is still pending for decision, but have referred to the above facts only to demonstrate that the official acts and common course of business dealing in said Branch were not properly performed. Since the petitioners have admitted that the fraud was done, and by said fraud the amount in question was withdrawn, and they have not directly or indirectly implicated the respondents No. 1 for said fraud, ex-facie, the conclusion would be that the petitioners are responsible for maladministration, mal-adjustment, and malfeasance by their acts of omission as well as commission, as they failed to perform their duties and obligations, as were assigned to them. The plea that the forged bearer cheques appeared to "naked eyes in order" would not absolve them from their liability arising from their inexplicable negligence. Likewise, the plea that the matter being subjudice before this Court in C.P. No. 157/1990, the respondent No. 2 had no jurisdiction to investigate or inquire into the matter is without any substance. In said petition primarily the question under consideration is :to examine the extent of criminal liability of the accused persons, who were tried and acquitted by the learned Special Judge and it has nothing to do with the civil liability incurred by the petitioners due to their maladministration.
10. Another point to be considered with reference to the facts of this case is whether in writ jurisdiction, this Court can examine the question of validity of any action taken under the Order No. 1 of 1983. Article 29 of the Order bars the jurisdiction of Court or any other authority in respect of any action taken under the provisions of the Order No. 1 of 1983. It is significant to note that in the proceedings before the respondent No. 2 the petitioners had never raised any objection about the jurisdiction of the respondent No. 2. On the contrary, they contested the matter and placed their case before him who gave his findings having taking into consideration all the pleas raised on their behalf.
11. In case where the matter falls within the jurisdiction of respondent No. 2 and is resolved by invoking the provision of the Order I of 1983, no Court would have jurisdiction to disturb such findings. When action is taken under a special statute it must fulfil the conditions of the statutes in order to gain validity of the action so taken. The instant case has be n dealt within the four corners of provisions of the Order No. I of 1983, as such this Court, under Article 199 of the Constitution, has no jurisdiction in the matter.
12. Mr. Qaidr H. Sayeed learned counsel for respondents No. 1 cited the case of Almas Khanum vs. The Federation of Pakistan and others 1994 MLD 6 to contend that High Court would not ordinarily enter into examination of finding of facts arrived at by a forum to review it or to substitute the same with another possible view. This case was also under order I of 1983. In the instant case, the factual findings of respondent No. 2 have been confirmed by the President of Pakistan on representation made in him under Article 32 of the Order No. I of 1983. It is significant to note that as per Article 37, the provisions of Order No. I of 1983 overside the other laws. It being so, recourse to general law for nullifying the provisions of this order is not permissible.
13. In consequence, we hold that this Petition is not maintainable and is dismissed accordingly.
Petition dismissed.
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