Concise facts of the case, necessary for the disposal of this writ petition are that Respondent No, 2 lodged a complaint under Chapter VI-A of the Banking Companies Ordinance, 1962, before Respondent No,
1. Respondent No, 2 asserted in his complaint that he maintains account with UBL Lohari Gate Branch, where he deposited Rs, 6,00,000/- (rupees six lac only) in cash against deposit receipt signed by an officer of bank, duty stamped as "cash received". Concerned officials of the branch undertook to issue cheque book, after its receipt from the Head Office. Thereafter various amounts were deposited at different intervals against cash receipts i,e, Rs, 10,00,000/- (rupees ten lacs only) on 23.11.2004, Rs, 2,50,000/- (rupees two lac fifty thousand only) on 29.11.2004, Rs, 8,00,000/- (rupees eight lacs only) on 8.12.2004, Rs, 12,00,000/- (rupees twelve lacs only) on 15.12.2004 and Rs, 15,00,000/- (rupees fifteen lacs only) on 31.12.2004. A total sum of Rs, 53,50,000/- (rupees fifty three lacs fifty thousand only) was deposited. No cheque book was issued despite demand by Respondent No, 2, who on 4,1.2005 withdrew a sum of Rs, 13,00,000/- (rupees thirteen lacs only) through cash voucher. During this period the branch staff was transferred and Respondent No, 2, when requested for withdrawal of his amount, he was informed that as per bank record on account in the name of Respondent No, 2 existed, except an entry in the Account Opening Register dated 4.1.2005. Respondent No, 2 then came to know that the branch manager with certain other staff has misappropriated large sums of the various customers of branch and investigation in this respect is being conducted by NAB. The victims of fraud will be paid after due scrutiny. Bank settled the claims of various account holders but the claim of Respondent No, 2, remained unsettled which gave him a cause to approach Respondent No, 1 for redressal of his grievance. Petitioner contested the matter/complaint before Respondent No, 1 submitted reply and controverted the assertion made in the complaint. Respondent No, 1, after hearing both the parties, decided the matter vide decision dated 8.12.2005, whereby it was held that bank/petitioner is liable to pay the amount of claim i,e, Rs, 40,50,000/-(rupees forty lacs fifty thousand only) besides Rs, 2,85,000/- (rupees two lacs eighty five thousand) towards compensation. Decision dated 8.12.2005, is now assailed in this petition.
2. Learned counsel for the petitioner has submitted that relationship inter se the petitioner and Respondent No, 2 is not that one of the banker and customer. The complaint pertains to the period prior to the opening of account. No account was opened on 27.11.2004 as alleged. Basic documents relating to account i,e, account opening form, specimen signatures, statement of account and cheque books are not in the branch record. Learned counsel in order to establish the bona fide has submitted that out of 145 complaints, the payment has been made to 140 complainants. It was found on scrutiny that Respondent No, 2 opening account on 4.1.2005 and no payment was received by the bank. Manager inserted name of Respondent No, 2 through an anate dated entry in "Account Opened and Closed Register", after the probe in the affairs of the Branch by the raiding party. Respondent No, 2 has been paying amounts to the manager of the branch in his personal capacity, outside the premises of branch. Petitioner is not liable for the acts of its branch manager vicariously, as these acts were not in the course of employment. Respondent No, 2 has never visited branch of the bank, which fact finds support from affidavits of the officers of branch. Deposits, statedly made by the Respondent No, 2 to the manager of the branch, were not normal banking transactions. Branch manager had no authority to receive cash of customer. Normal and usual course is to deposit amounts at cash counter in usual banking hours. Impugned transactions are without ostensible authority of the employer, do not make the employer vicariously liable. Learned counsel in this respect found support from the cases of "Kooragang Investment Put. Ltd. versus Richardson and Wrench Ltd" (1981) 3 W.L.R. 493], 'Armagas Ltd. versus Mundogas S.A. (H.L.(E))"
[(1986) 2 WLR 1063], "The King versus City of Westminister Assessment Committee" [(1941) 1 KB 53]. It was then submitted that the question of vicarious liability of the petitioner cannot be determined summarily. Proper trial through recording the evidence is needed to ascertain, whether or not the deposit were made in usual banking hours and within the premises of the branch. Case of "State Bank of India versus Smt Shyama Devi" (19901991 Banking Law Cases (Volume-I) page 349) was referred in support of this contention.
3. Learned counsel while .challenging the jurisdiction of Respondent No, 1 has submitted that jurisdiction of Banking Mohtasib is restricted to: banking mal practices; perverse, arbitrary or discriminatory actions; violations of banking laws, rules and regulations or inordinate delay or inefficiency and corruption; nepotism or other forms of mal-administration of transaction as envisaged in Section 82-A of the Banking Companies Ordinance, 1962. Learned counsel added that fixing of vicarious liability without proper determination thereof is violative of law. Fixing vicarious liability on employer falls outside the ambit and the powers of Respondent No,
1. Impugned transaction was private dealing of two individuals, for which question of vicarious liability does not arise. Learned counsel then submitted that Banking Mohtasib has no such powers as are vested in Wafaqi Mohtasib (Ombudsman) Order, 1983. Baking Mohtasib can call for information, as provided in Section 82(F) of Ordinance, 1962. No specific power of proper trial and recording of evidence vests with Respondent No, 1 who has exercised his jurisdiction in excess, by adopting the procedure of recording the statements etc. Learned counsel has submitted that it is evident from impugned order that after the conclusion of proceedings, the Respondent No, 1, inquired on phone from Mr. Qasim Irfan Manager of Riwaz Garden Branch, about the missing record of the account of Respondent No,
2. This inquiry was made behind the back of the petitioner, the bank was not allowed to controvert false information supplied by Mr. Qasim Irfan, Cases of 'Muhammad Jamil Asghar versus The Improvement Trust Rawalpindi" (PLD 1965 SC 698). 'Abdus Saboor Khan versus Karachi University and another" (PLD 1966 SC 536), 'Mehr Dad versus Settlement and Rehabilitation Commissioner and another" (PLD 1974 SC 193) and "Chief Commissioner Karachi and another versus Dina Sohrab Katrak" (PLD 1959 SC 45) were referred to contend that the impugned decision in nullity and violative of principles of natural justice. It was contended that Respondent No, 1 has not applied its conscious mind to the controversy before him. The claim regarding deposit dated 31.12.2005 was entertained, which is subsequent to the lodging of complaint. There is no sense or justification in depositing further amount, in the account in the same manner, without proper verification. Learned counsel submitted that this fact alone proves the falsehood of the claim of the Respondent No,
2. To meet the objection of respondent, about the maintainability of the petition, in presence of remedy of appeal, learned counsel submitted that the matter regarding fraud in the bank was already pending before State Bank. The appeal thus hardly remains a remedy. Case of 'Muhammad Abdullah versus The Road Transport Corporation and others" (PLD 1964 Lahore 743) was referred wherein it was held that where inquiry officer gives his finding in the inquiry, he is debarred to sit as one of the members of the tribunal to consider the case of the employee. He added that applying the same principle to the instant case, State Bank of Pakistan having ceased of inquiry regarding affairs of bank and its staff, cannot entertain the appeal of the petitioner.
4. Learned counsel for the respondent, on the other hand, has fully supported the impugned order of the Banking Mohtasib. He has emphasized that the remedy of appeal under Section 82E(4) of the Ordinance, 1962 against the order of Mohtasib was available to the petitioner, which the petitioner has not availed within stipulated period of 30-days, therefore, the writ is not competent.
Learned counsel in support of this contentions has referred to the case of "Allah Bakhsh and another versus Muhammad Ismail and others" (1987 SCMR 810). He has referred to the cases of "Collector of Customs, Lahore etc. versus Universal Gateway Trading Corporation and another"
(2005 SCMR 37), "Farzan Raza Naqvi etc. versus Muhammad Din etc." (2004 SCMR 400), 'Naeem Jafar versus Senior Superintendent of Police and 2 others" (1997 MLD 1198), 'Aslam Hassan Qureshi versus Government, State Bank of Pakistan and 4 others" (2004 CLD 1407), "Sui Southern Gas Company Ltd. and another versus Khawaja Muhammad Munir and another" (2000 SCMR 702), 'Abdur Rehman versus Haji Mir Ahmad Khan and another" PLD 1983 SC 21) and 'Anjuman Arhtian (Regd.) Khanpur versus Province of Punjab" (PLD 1990 Lahore 32) in support of his contention that writ of the petitioner is barred by doctrine of alternate remedy. Learned counsel has then submitted that a forum which has the jurisdiction to pass an order, it can pass an order rightly or wrongly. Mere wrong of erroneous order cannot be challenged in Constitutional jurisdiction. He in support of this contention has referred to the cases of "General Manager PC Hotel versus Farhat Iqbal" (PLD 2003 SC 952), 'Muhammad Samiullah Khan versus Addl. District Judge, Sargodha" (PLD 2002 Lahore 56) and "Federal Land Commission versus Mst. Gul Bibi and others" (1983 SCMR 818).
Case of "Syed Akhtar Hussain Zaidi versus Muhammad Yaqinuddin" (1988 SCMR 753) to contend that the documentary evidence cannot be rebutted through oral evidence; the former has precedence over the latter. Respondent has placed before the Banking Ombudsman deposit slips and to rebut the same petitioner had adduced oral evidence. It was contended that questions raised, in the writ petition are questions of fact; factual controversy cannot be gone into in the writ jurisdiction. Learned counsel supported this contention by referring to the cases of "Khairuddin and others versus Settlement Commissioner and others" (1988 SCMR 988) and "Allied Bank of Pakistan Ltd. versus Ejaz Ahmad Abbasi and another" (1990 SCMR 1713). While referring to 'pages 1320, 1321, 1329 to 1333 of Banking Law Theory and Practice by Gupta, it was contended that petitioner is vicariously liable for the acts of its Manager. Learned counsel has submitted that the complained act of Respondent No, 2, pertained to the mal practice and violation of banking laws, therefore, the learned Banking Mohtasib had the jurisdiction to entertain the complaint of the respondent within the contemplation of Section 82-A(3) of the Ordinance, 1962. Learned counsel has controverted the assertions of the petitioner that the receipts are signed by Manager and the transaction was between Respondent No, 2 and the Manager of the Bank in their personal capacity. It was submitted that the deposit slips contained the signatures of the Cashier and other officials. He has emphasized that the deposit slips duly stamped by the bank, received by the bank in its premises, cannot be termed as the acts of the Manager in his personal capacity. He stressed that the Manager acted on behalf of the bank and the complained act was not in the personal capacity.
140 customers of the bank who were victim of fraud of the branch manager have been compensated. There is no justification that Respondent No, 2, who was placed in identical situation, was not accommodated. It was argued that the affidavits, which the petitioner has filed with this writ petition, were not submitted before Banking Mohtasib. The affidavits at this belated cannot be considered.
5. Heard learned counsel for the parties and examined the record.
6. Learned counsel for the petitioner has stressed that the amounts received by the Manager in his personal capacity, cannot be taken as a transaction by the Manager in the course of his duty. It was private arrangement between the parties. The complaint of Respondent No, 2 relates to a period when the account of Respondent No, 2 was not opened, therefore, the matter falls outside the jurisdiction of the Banking Mohtasib. The arguments have no force as the jurisdiction of Banking Mohtasib is not confined to the transactions between the Banker and the customer. According to provisions of Section 82-A(3) the jurisdiction of Banking Mohtasib relates to the "Banking Transactions", where inquiry pertains to Banking mal-practice, perverse or discriminatory actions, violation of banking law, rules and guidelines, corruption, nepotism or other forms of mal- administration. It is the transaction and not the persons, which determines the jurisdiction of Banking Mohtasib. Receiving cash during the banking hours within the banking premises against the issuance of deposit slips, without opening the account of the customer, is the act of maladministration and banking mal-practice. Banking Mohtasib has rightly entertained the complaint of Respondent No, 2.
7. Petitioner has taken exception to the procedure which the Respondent No, 1 has adopted while entraining the complaint of Respondent No. 2. The Banking Mohtasib has the power to adopt any procedure as he deems appropriate for the investigation of a complaint. Section 82-D(3) in this respect is relevant, which reads as under:-- "82-D Procedure for making complaints....(1)....
(2) ............1
(3) The Banking Mohtasib may adopt any procedure as he considers appropriate for investigating a complaint: Provided that he shall not pass any order against a bank without first giving it a notice and an opportunity of hearing".
It is clear from the above provision of law that there is no bar for the Banking Ombudsman to adopt a procedure for the disposal of the complaint before him. I do not, therefore, agree with contention of the learned counsel of the petitioner that Banking Mohtasib, according to provisions of Section 82-F of the Ordinance, 1962 can only call for information and the relevant documents but is not vested with authority to record evidence or statements of the parties.
8. There is nothing on record to show that deposits by Respondent No. 2, are private transactions between the Manager and the complainant. Deposit slips signed by the Cashier and another Official of the bank which are duly stamped, sufficiently prove the transaction as a normal banking transaction. Further the bank has itself admitted five out of six deposit slips. Payment of compensation to 140 complainants out of 145 customers, further 1 proves that staff of the branch remained involved in mal-practice and fraudulent acts. Deposits made by the complainant/Respondent No. 2, in the ordinary course of banking, were not accounted for in the record of the bank. Petitioner is, therefore, liable for the fraudulent acts of its Manager namely Khursheed Butt. There is no illegality or infirmity in the finding of the Banking Mohtasib in holding the petitioner vicariously liable for the fraudulent acts of the Branch Manager.
9. It is reflected from the impugned order that learned Banking Mohtasib has called information from Mr. Qaiser Irfan, an Officer of the Bank, on telephone who appraised Respondent No. 1 that account opening form was taken away by the Branch Manager who kept the same at his home.
Learned Mohtasib gave due weightage to his statement. The information was sought from Mr. Qaiser Irfan after the proceedings were concluded. Learned Mohtasib in this exercise, has ignored the principles of Natural Justice. It was incumbent upon the Mohtasib to inform and provide the petitioner an opportunity to cross-examine Mr. Qaiser Irfan before drawing inferences against the petitioner on the basis of his statement. The petitioner had the right to controvert the statement of Mr. Qaiser Irfan through its evidence, which was not provided.
10.Another lacuna apparent in the impugned order, is granting the Respondent No. 2 a sum of Rs.
15,00,000/- which as per deposit slips is shown to have been deposited on 31.12.2005. It is reflected from the legal notice of Respondent No. 2 that this sum was deposited on 31.1.2005, however, Respondent No. 2 changed its stance and subsequently wrote to the petitioner that this amount was deposited on 31.12.2004. It is evident from the deposit receipt that it pertains to the year 2005 and not 2004. The petitioner has denied the veracity of this deposit slip. There was no admission by the bank to this effect. The award of an amount, without any proof thereof, is not legally tenable.
11.The compensation was also granted to Respondent No. 2 without any proof, as to the damages suffered, by the Respondent No. 2. The Banking Mohtasib can award compensation for the loss actually sustained and not in the form of damages. The right course available to the Respondent No. 1 was to leave the claim of damages/compensation to Civil Court. Damages cannot be awarded without proper determination and proof. The impugned order to this extent is without lawful authority.
12. The impugned order suffers from the legal defects mentioned in Paragraphs 9 to 11, therefore, is not sustainable to that extent. The case is sent back to learned Banking Mohtasib for re-writing the decision after curing the infirmities pointed out in Paragraphs 9 to 11 (supra).
13. Before parting with this order, I would like to treat the question of maintainability of Constitutional petition despite availability of alternate remedy. The question has already been settled by the Hon'ble Supreme Court of Pakistan in the case of "Town Committee Gakhar Mandi versus Authority under the Payment of Wages Act, Gujranwala and 57 others" (PLD 2002 SC 452).
Relevant part of the judgment is reproduced as under:-- "It is true that as a general rule a person would not be permitted to invoke the extraordinary Constitutional jurisdiction of a High Court under Article 199 of the Constitution if an adequate remedy was available to him to seek redress of his grievance. But then this is also equally true that such was held, more than once, that a writ of certiorari for instance, could, be granted, despite availability of an alternate remedy, where for example, the impugned order was ex facie without lawful authority or where it was a case of lack or absence of or even excess of jurisdiction.
Reference may be made to the cases of S.A Haroon versus The Collector of Customs (PLD 1959 SC
(Pak) 177); "Pakistan versus Zia-ud-Din" PLD 1960 SC 440); Lt. Col. Nawabzada Muhammad Amir Khan versus The Collector of Estate Duty and others (PLD 1961 SC 119) Nagina Silk Mills versus The Income Tax Officer and others (PLD 1963 SC 322) Premier Cloth Mills Ltd. versus The States Tax Officer (1972 SCMR 257) and Murree Brewery Co. Ltd versus Pakistan (PLD 1972 SC 279).
It was held by the Apex Court in the case of "Government of Pakistan and another versus Hudabia Textiles Mills, Faisalabad" (2001 SCMR 209) that in cases where it was argued that there was lack of jurisdiction or where the impugned orders suffer from illegality on the face of record, a writ may be issued even though the right of statutory appeal has not been availed. I am persuaded by the dictum of law laid down by the apex Court in the cases, to hold that Constitutional jurisdiction of this Court can be invoked to call in question the impugned order, which suffers from the defect of exercise of jurisdiction in excess and in complete obliviation of the principle of Natural Justice.