PLJ 2001 Karachi 263 (DB)
Present: S. AHMED SARWANA AND MUHAMMAD MUJEEBULLAH SIDDIQUI, JJ.
ALLIED BANK OF PAKISTAN LTD.--Petitioner
versus
THE WAFAQI MOHTASIB (OMBUDSMAN) and others-
Respondents C.P. No. 1587 of 1992, decided on 1.2.2001.
(!) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (P.O. 1 of 1983)-
—Arts. 9 & 10-Constitutional petition u/A 199 of Constitution of Pakistan, 1973--Where anything is done, any action is taken or is purported to have heen taken, made or done under provisions of Establishment of Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, without jurisdiction, High Court has jurisdiction to declare same as illegal, without lawful authority and of no legal effect. [P. 268] B
(ii) Establishment of the office of Wafaqi Mohtasib (Ombudsman) Order (P.O. 1 of 1983)-
—Arts. 10(5) & 29--Civil Procedure Code, 1908 (v of 1908), S. l--Qanun-e- Shahadat Order, 1984 (10 of 1984), Art. 1--Proceedings before Wafaqi Mohtasib are not judicial in nature and provisions of C.P.C. and Qanun- e-Shahadat Order, 1984, are not applicable-Mohtasib can adopt such procedure as he consider appropriate for investigation and can make such inquiries as he thinks fit under Art. 10(5) of Establishment of Office of Wafaqi Mohtasib because the institution of Wafaqi Mohtasib has been established to provide speedy and expeditious relief to people" outside judicial hierarchy in order to avoid proverbial delay in dispensation of justice. [Pp. 267 & 268] A
PLD 1992 Kar. 339 ref.
(Hi) Establishment of the office of Wafaqi Mohtasib (Ombudsman) Order (P.O. 1 of 1983)-
—Art. 10(5)-Constitution of
(iv) Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order (P.O. 1 of 1983)--
—Arts. 9 & 10-Constitution of
PLD 1992 Kar. 339 distinguished.
Mr. Muhammad Muzaffarul Haque, Advocate for Petitioner. Date of hearing: 17.1.2001.
JUDGMENT
Muhammad Mujibullah Siddiqui, J.-The petitioner Allied Bank of Pakistan Ltd., has assailed the order dated 18.5.1992 by the Respondent No. 1. Wafaqi Mohtasib (Ombudsman) contending that the said order is illegal, without jurisdiction, void ab initio and of no legal effect.
Briefly stated the facts as alleged in the petition are that Messrs N.J.N. Garments and Hosiery (Pvt.) Ltd. and Mrs. Nighat Nusreen Respondents Nos. 2 and 3 respectively have bank accounts with the petitioners' Ancholi Branch, Karachi. They filed a written complaint to the President of the Bank to the effect that two cheques in the sum of Rs. 40,000 and Rs. 1,30,000 which were not signed by them were encahsed from their Current Account No. 589 and P.L.S. Account No. 212 respectively. The complaints were not entertained for the reason that after investigation, it was found that the cheques were signed by the Respondents Nos. 2 and 3 and there was no discrepancy. According to the petitioner, the signatures on the disputed cheques were genuine. Thereafter the Respondents Nos. 2 and 3 filed a joint complaint with the Respondent No. 1 who entertained the same on 16.9.1991. The petitioner was intimated that the action was being taken and the petitioner replied that the matter was got thoroughly probed through their Circle Audit Head, Karachi and the complaint was found baseless. The matter was heard by the Investigating Officer, appointed by Respondent No. 1 on 13.2.1992 when the petitioner contended that the Bank had been privatised on 12.9.1991 and its administration handed over to the new management and therefore, the Respondent No. 1 had no jurisdiction to entertain such claim. It is further contended that the action taken by the Respondent No. 1, does not fall within Articles 9 and 29 of the President's Order No. 1 of 1983 by virtue of which the Office of Wafaqi Mohtasib was established. It is submitted in the petition that the objection to the jurisdiction of Respondent No. 1 was not entertained and the cheques were sent to the A.I.-G. Police Criminalistic Division, Sindh, Karachi. The said A.I-G. sent a report to the effect that these cheques did not bear the signatures of the Account holders. It is alleged that the said report was not given to the petitioner to challenge the same in rebuttal and on the basis of said report and without giving further opportunity to the petitioners, it was ordered that the responsibility of honouring the cheques bearing forged signatures lies on the bank and into the account holders. The petitioner was directed to refund the amount so encahsed. It is further contended in the petition that the Respondent No. 1 is not a Constitutional office and has been established under a statute therefore, all those conditions which are attached to the Constitutional office are not available to him and the impugned action can be challenged by the petitioner in the Constitutional jurisdiction. It is stated in the grounds of appeal that the complaint of Respondents Nos. 2 and 3 does not fall within the meaning of maladministration as defined in the Presidential Order No. 1 of 1983.
When the petition was taken up for admission it was contended by the learned counsel for the petitioner that according to Article 9 of the Presidential Order No. 1 of 1983, the Wafaqi Mohtasib can undertake any investigation into an allegation of maladministration on the part of any Agency or any of its Officers or employees. The term "agency" is defined in Article 2(1) sf the said Order as follows :
"Agency means a Ministiy, 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."
It was submitted that since the petitioner is now privately owned, therefore, it does not fall within the purview of "Agency" and the learned Wafaqi Mohtasib (Ombudsman) had no jurisdiction to pass the impugned order directing the petitioner to refund the amount of Rs. 40,000 and Rs. 1,30,00 to Respondents Nos. 2 and 3 respectively. On 8.9.1992 the learned counsel for the petitioner placed reliance on a Division Bench decision of this Court in the case of National Bank of Pakistan v. Wafaqi Mohtasib PLD 1992 Karachi 339, contending that the judgement supported the petitioner's case. The petition was accordingly admitted for regular hearing. On 13.10.1992 the petitioner was directed-to deposit the amount in question with the Nazir of this Court with the direction to invest the same in some Government securities. The operation of impugned order was suspended till the decision of the petition. The amount was deposited with the Nazir of this Court on 25.5.1994. The petition was fixed for hearing on 29.11.1999, when it was contended by the learned counsel for the petitioner that the main question is whether the petitioner was an agency to whom direction could be given by the Respondent No. 1. The learned counsel was not able to show that, this was the position on 24.7.1991 when the application was made to the Wafaqi Mohtasib and that subsequent change shall have the effect of ousting the jurisdiction of Respondent No. 1. The learned counsel for the petitioner sought time to prepare himself on all the questions involved in the petition. On his request the hearing was adjourned to 16.12.1999. The petition however could not be heard till 17.1.2001.
On this date nobody was present for the respondents. The learned counsel for the petitioner was present. He addressed arguments in support of the petition but. he was no able to show that any subsequent change shall have the effect of ousting the jurisdiction of the Respondent No. 1. He is not able to deny that when the cheques were encahsed in the years 1988 and 1989 the petitioner was an agency as defined in Article 2(1). His contention that the act complained against does not fall within the purview of "maladministration" as defined in Article 2(2) of President's Order No. 1 of 1983 is not tenable for the reason that in the definition of maladministration contained in Article 2(2)(ii) neglect, inattention, delay, incompetence, inefficiency and ineptitude, in the administration or discharge of duties and responsibilities are also included.
Mr. Muhammad Muzaffarul Haque, learned counsel for the petitioner next submitted that the right of cross-examination was not afforded to the petitioner. We are not impressed with the contention because in Article 10(5) it is provided that Mohtasib may adopt such procedure as he considers appropriate for such investigation and may obtain information from such persons and in such manner and make such inquiries as he thinks fit.
A perusal of the impugned order shows that a meeting was held in the office of Investigating Officer, Mr. Shaukat Ali Sheikh. The following persons were present in the meeting :--
(1) Mr. Noor Ahmed Khan for complainants.
(2) Syed Hasan Saghir, Manager, A.B.L.
(3) Mr. Khalid Mahboob, Senior Vice-President, A.B.L.
(4) Mahir Raza, Zonal Chief, A.B.L.
During the discussion it was argued by all the parties that the issue hinges on the genuineness of the signatures on the cheques. The Investigating Officer after a thorough discussion with the parties came to the conclusion that the question, whether the cheques bore the signatures of the account-holders or not could be decided by a Handwriting Expert alone. The cheques were therefore referred to Mr. G.A. Jafri, A.I.-G. Sindh, Karachi
and the hearing was adjourned to 29.12.1992 which was attended by the following persons:—
(1) Mr. Noor Muhammad Khan complainant.
(2) Syed Hasan Saghir, Manager, A.B.L.
(3) Mr. S.M.I. Rizvi, Zonal Chief.
(4) Mr. G.A. Jafri, A.I.-G. Police, Sindh, Karachi.
At the hearing Mr. G.A. Jafri requested that the following documents be handed over to him for examination in the Laboratoiy :--
(1) Cheques in Original.
(2) Bank Specimen Cards.
(3) Account Opening Form.
(4) Ten Undisputed Cheques.
(5) Identity Card of the Account-holders.
(6) Signatures of the account-holders taken in presence of the Investigating Officer.
The next meeting was held on 21.4.1992 which was attended by the following persons :—
(1) Syed Hasan Saghir, Manager, A.B.L.
(2) Mr. G.A. Jafri, A.I.G., Police Sindh, Karachi.
The representative of the complainants was absent on the said date. Mr. G.A. Jafri submitted a report containing the conclusion that the disputed cheques did not bear the signatures of the account-holders.
On conclusion of the above proceedings and in presence of Handwriting Expert's report, the Respondent No. 1 held that the responsibility for honouring the cheques bearing the forged signature lies t;; the Bank which includes staff of the Bank and not on the account-holders. It was ordered that the respective amounts debited to the account of the account-holders be refunded to them. The petitioner was directed to submit a compliance report within one month of the receipt of the order. A perusal of the record made available to us shows that no objection was raised to the procedure adopted for investigating into the complaint before the Investigating Officer. On the contraiy the petitioner supplied the documents to the Handwriting Expert, Mr. G.A. Jafri vide their letter dated 8th March, 1992. After the submission of report by the Handwriting Expert no request was made for giving an opportunity for cross-examination of the Expert and no objections were filed thereto. Thus the petitioner is now estopped from raising plea that any prejudice has been caused to it by not providing an opportunity of cross-examining the Handwriting Expert. The proceedings before Wafaqi Mohtasib are not judicial in nature and the provisions of C.P.C. and Qanun-e-Shahadat are not applicable. As already observed earlier, the Mohtasib can adopt such procedure as he considers appropriate for investigation and can make such inquiries as he thinks fit under Article 10(5) of the President's Order No. 1 of 1983. No exception can be taken to the procedure adopted for deciding the complaint. The technicalities and niceties of the civil litigation in judicial proceedings, are not attracted to the proceedings before the Wafaqi Mohtasib because the institution has been established to provide speedy and expeditious relief to the people outside the judicial hierarchy in order to avoided the proverbial delay in the dispensation of justice. For the reason, no appeal or revision is provided against the order of Wafaqi Mohtasib except representation to the President under Article 32 of the President's Order No. 1 of 1983. The jurisdiction of the Courts is also barred under Article" 29 of the President's Order No. 1 of 1983, which reads as follows:
"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 make any interim order in relation to any proceedings before, or anything done or intended to be done or purporting to have been done, by or under the orders or at the instance of the Mohtasib."
However, we would unhesitatingly add that if anything it done, any action is taken or is purported to have been taken, made or done under the President's Order No. 1 of 1983 without jurisdiction, the High Court shall always have the jurisdiction to delcare the same as illegal, without lawful authority and of no legal effect. If any authority is required on this point it is available in the Division Bench judgment of this Court in the case of National Bank of Pakistan v. Wafaqi Mohtasib (Ombudsman), PLD 1992 Karachi 339. The burden to show that any action has been taken or any act has been done by assumption of jurisdiction not vested in the Wafaqi Mohtasib shall, however, always be on the person alleging the lack of jurisdiction so as to warrant interference by this Court in Constitutional jurisdiction.
Consequent to the above discussion it is held that the plea that the impugned order is bad for want of opportunity to cross-examine the Handwriting Expert is not available to the petitioner for the reasons that, firstly, it is not the requirement of any law, secondly, the procedure adopted by the Respondent No. 1 for investigating into the complaint is permissible under the President's Order No. 1 of 1983, thirdly the petitioner has already participated in the meetings held from time to time in the office of Investigating Officer of Respondent No. 1 without any objection to the procedure adopted, fourthly, it has not caused any miscarriage of justice and fifthly, the action taken by the Respondent No. 1, within its competence and jurisdiction cannot be challenged.
We would now revert to the last point which was agitated by the learned counsel for the petitioner on the first date of hearing and again raised on 29.11.1999. It is an admitted position that when the act complained against was committed, the petitioner was an agency as defined in Article 2(1) of the President's Order No. 1 of 1983 and so was the position when the complaint was made to the Wafaqi Mohtasib. The learned counsel for the petitioner has not been able to show how with the denationalisation of petitioner, the Respondent No. 1 shall be divested of the jurisdiction already assumed and acquired and that the proceedings pending before the respondent No. 1 shall stand abated. We are, therefore, of the opinion that the jurisdiction once acquired by Respondent No. 1 shall continue till the conclusion of the proceedings, notwithstanding the alleged denationalisation of the petitioner-bank. The reason being that when the Respondents Nos. and 3 were deprived of their money as a result of maladministration on the part of petitioner, the petitioner was admittedly in agency and when the jurisdiction was assumed even at that time the petitioner was an agency. The denationalisation takes place with the transfer of all the assets and liabilities. Until and unless is any law declaring that on denationlisation of the petitioner, the proceedings pending before Respondent No. 1 shall stand abated, the proceedings shall be deemed to be pending and continuing, with the result that the petitioner cannot wriggle out of the responsibility for maladministration and cannot be absolved of the maladministration resulting in deprivation of the Respondents Nos. 2 and 3 of their valuable right of protection to property. It is, therefore, held that the Respondent No. 1 passed the impugned order with proper jurisdiction. The objection raised in this behalf is not tenable as the learned counsel for the petitioner has not been able to substantiate the contention that the impugned action taken by the Respondent No. 1 was without jurisdiction. Although the learned counsel for the petitioner has not placed reliance on the judgment in the case of National Bank of
Consequent to have findings, it is held that the petition is without substance, which sands dismissed with cost.
Mr. Muhammad Muzaffarul Haq, learned counsel for the petitioner submitted that if the petition is dismissed the amount deposited with the Nazir of this Court may be released to the Respondents Nos. 2 and 3 but the profit earned thereon may be allowed to be appropriated by the petitioner. The request is not tenable. It is the money of Respondents Nos. 2 and 3, which had been invested under the orders of this Court in the month of May, 1994. The Respondents Nos. 2 and 3 have already been deprived of the profits of the money, which was wrongly encahsed from their accounts in the year 1988 and 1989. In between the years 1988/1989 and the years 1994, they have not reaped any benefit of this amount. They cannot be deprived further of the profit earned on their own money. The contention is, therefore, repelled and the Nazir is directed to release the amount deposited with him alongwith the profit earned on the investment to the Respondents Nos. 2 and 3 on proper verification and identification. The petition stands disposed of accordingly.
(A.P.) Orders accordingly.
No comments:
Post a Comment