1. ' ARSHAD NOOR KHAN, J.---By this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has questioned the legality and validity of his compulsory retirement vide order dated 3-9-2004 issued by the respondents ' The relevant facts for disposal of the present petition in brief are that the petitioner was initially appointed as OG-III in respondents-Bank and gradually he was promoted to OG-II, and then Manager. It is further stated in the petition that during the course of his service he was posted at various branches of bank and lastly he was posted at FFC Township Branch on 19-7-2003, where according to him the new Manager was levelling unnecessary allegations against him. After his transfer some misappropriation was surfaced and on the complaint of one Jamil-urRehman the enquiry was initiated against him where investigation team recorded his statement and he was also served with the statement of allegations and charge sheet whereby levelling frivolous allegations against him which statement of allegations dated 31-12-2003 was issued under section 5(1)(a) of Removal from Service (Special Powers) Ordinance, 2000 which was replied on 17-1-2004.
2. In pursuance of said enquiry and after enquiry report, he was served with show-cause-notice dated 19-1-2004 alleging therein that his reply was not found satisfactory, which he also replied and the enquiry officer recommended stoppage of his two years salaries, but the respondent issued second show-cause-notice dated 1-6-2004 calling him to show cause as to why he should not be removed from the service, which he replied but vide order dated 3-9-2004 he was compulsorily retired from service. The petitioner challenged his compulsory retirement by way of filing departmental appeal which did not find favour and was dismissed in the month of January, 2005. The petitioner filed appeal before Federal Service Tribunal challenging his forcible retirement which was abated vide order of Federal Service Tribunal dated 1-2-2008 hence he filed the present petition challenging the legality and validity of his compulsory retirement.
3. ' The respondents have been served and filed application for dismissal of the petition on the ground that respondent's bank has been privatized w.e.f, 26-2-2004 and the petition against the respondent's bank after privatization is not maintainable.
4. ' We have heard the petitioner in person and Mr. Shahid Anwar Bajwa Advocate for respondents.
5. ' The petitioner vehemently contended that enquiry was initiated mala fidely as the said Jamil-ur- Rehman had recorded his statement stating therein that he had filed the complaint under misapprehension and mistakenly and since the loan amount has been paid therefore he wants to withdraw his complainant but still in utter disregard to the statement of complainant enquiry was conducted and he has been compulsorily retired under the provisions of the Ordinance, 2000.
6. According to him the respondents were not justified in issuing order regarding his forcible and compulsory retirement on the ground of alleged embezzlement which has not been proved, in view of the statement of complainant Jamil-ur-Rehman. In support of his contention he has relied upon the case reported as Habib bank Ltd. v. Ghulam Mustafa Khairati (2008 SCM R 1516) as well as case of Khalid Mehmood v. Habib Bank Ltd. Reported in 2005 M LD 1798.
7. ' Mr. Shahid Anwar Bajwa learned counsel for the respondents vehemently contended that the petition is not maintainable for the reason that respondent's bank has been privatized and after privatization of bank, the bank is functioning under the provision of Company Ordinance, 1984 and the petition against private company is not maintainable and that the enquiry was conducted against the petitioner which was proved and he was rightly punished by compulsory retirement and no illegality or irregularity is apparent on the record of enquiry, as such the petition is not maintainable and is liable to be dismissed.
8. ' We have considered the arguments advanced by the respective parties and have gone through the material available before us.
9. ' The main thrust of the petitioner is against his compulsorily retirement from service vide order dated 3-9-2004. The petitioner has admitted about the receipt of the show-cause-notice on the complaint of one Jamil-ur-Rehman who in his complaint stated that he never obtained any loan from the bank and has been served with the notice of deposit of loan obtained by him. On such complaint admittedly the enquiry was conducted against the petitioner wherein it is proved that he had opened 10 accounts of 50,000 each and had obtained the loan against these accounts which proves the embezzlement. No where petitioner has disputed in the petition that enquiry conducted against him by the enquiry officer was the result of any enmity against him or that the enquiry officer was not competent to conduct enquiry against him and that final show-cause- notice was issued against him malafidely. In absence of any allegation against enquiry officer it could not be said that enquiry conducted by enquiry officer against the petitioner required reconsideration. The conduct of enquiry and report of enquiry officer is purely a question of fact which could not be entertained and decided in constitutional jurisdiction of this Court. The respondents are not under obligation to follow the recommendation of enquiry officer and the maximum punishment provided under the law could be inflicted by the authority which has been done in the case in hand, which could not be said to be illegal. In the present case it was proved in enquiry that the petitioner was responsible for opening the fake accounts and sanctioning of loan against said fake accounts as such was found guilty of charge and embezzlement. Petitioner has not pointed out any illegality in the proceedings of enquiry which culminated against him. The case-law cited by the petitioner in our humble opinion speaks about different proposition which is not involved in this case as no criminal case in response to any F.I.R. Was proceeded against him.
10. ' This petition was dismissed by us vide short dated 9-2-2009 for the reasons to be recorded later on. The above are the reasons for the same.
11. (Sd.)
12. Arshad Noor Khan, J ' KHILJI ARIF HUSSAIN, J.---While agreeing with the conclusion, I will record my own reason.
13. ' Briefly facts to decide the petition are that petitioner was appointed as Grade III Officer in respondent-Bank. In the year, 1994 he was promoted as Officer Grade II. In August, 2000, the petitioner was transferred and posted as Branch Manager of Mirpur Matehlo Branch Sukkur on the recommendation of the then Regional Chief Executive Hyderabad Region. The petitioner received transfer order through Fax on 19th July, 2003 at about 12-30 p.m. From Regional Office. The petitioner has been transferred to FFC Township Branch as Manager. It was alleged that new Manager posted in place of the petitioner became instrumental to the manipulation conceived by the then Regional Chief and started creating confusion mistrust between the customer and borrowers regarding their banking as well as finance transaction.
14. ' The respondent-Bank received complaint in respect of banking as well as finance transaction and a team was deputed to probe the matter by the Investigation Division of respondent-Bank. The investigation team also recorded the statement of the petitioner. The petitioner then was served with the statement of allegations and charges vide letter dated 31st December, 2003. By a letter dated 19th January, 2004, petitioner was informed that the explanation submitted by him has not been considered satisfactory and in order to give fair chance to defend the management/competent authority of respondent-Bank, decided to hold domestic enquiry against the petitioner in exercise of power conferred under section 2(a) read with sections 3 and 5 of the Removal from Service (Special Powers) Ordinance, 2000, has the petitioner was asked to appear before the Chairman Enquiry Committee on 12th February, 2004. The petitioner appeared before the Enquiry Committee where his statement was recorded. The Enquiry Committee of the respondent found the petitioner guilty under the charges made against him and show- causenotice was issued as to why punishment of compulsorily retirement should not be imposed upon the petitioner. The petitioner replied the said show-cause-notice.
15. ' The respondent-Bank vide order dated 3rd September, 2004 informed the petitioner that the competent authority by taking lenient view has decided to compulsorily retire the petitioner from the service of the bank as punishment with immediate effect with usual retirement benefits.
16. ' Aggrieved by the order dated 3rd September, 2004 by the respondent bank for compulsorily retirement, the petitioner filed appeal before the President of respondent-Bank and thereafter filed appeal before the Tribunal which was stood abated in view of the principle laid down by the apex Court. The petitioner now called in question the order of compulsorily retirement through this petition.
17. ' The petitioner appeared in person, argued that the Enquiry Committee, after investigation held that charges against the petitioner are fully proved and established and recommended for permanent stoppage of annual salary increase for two years but the authority instead of passing order, in terms of the recommendation of the Enquiry Committee, passed order for compulsorily retirement of the petitioner. Petitioner in support of his contention relied upon the case of Habib Bank Limited v. Ghulam Mustafa Khairati 2008 SCM R 1516.
18. ' Mr. Shahid Anwar Bajwa, learned Advocate for the respondent while questioning maintainability of the petition argued that the Bank was denationalized and government has less than 50% shares in the Bank and permanent management has 51 % shares in the Bank. The respondent-Bank is not managed by any government organization but is a private limited bank hence the petition is not maintainable against the respondent bank under Article 199 of the Constitution of Islamic Republic of Pakistan. He argued that various petitions filed against the respondent bank were dismissed on this sole ground. In support of his contentions he has relied upon unreported orders passed in cases of:--
(1) Zulfiqar Ali v. Allied Bank of Pakistan in C.P.No,D-109 of 2005,
(2) Abdul Rehman v. The President, Habib Bank Limited and others C.P.No,D-882 of 2007,
(3) Abdul Malik v. Habib Bank Limited in C.P.No,226 of 2007 decided by High Court of Balochistan, Quetta.
19. ' We would like first to discuss the question of maintainability of petition. The respondent-Bank was privatized on 20-2-2004 on which date management and control of the Bank was transferred to purchaser. The private parties purchased 51 per cent of the shares of respondent-Bank. The impugned order was passed under the Staff Services Rules of respondent-Bank. Number of petitions filed against the respondent were dismissed on the ground that petition against private person is not maintainable. Clause 5,.2 of the Agreement of Share purchase of respondent-Bank provided terms in relation to the existing employees and staff of the Bank. In terms of the said clause the private party who purchased the respondent Bank cannot change or vary or discontinue to the detriment of staff members and employees by the purchaser for a minimum period of one year from signing date be terminated laid off, retrenched or made to resign from the services of HBL.
20. ' In the case of the Chairman, Canara Bank, Bangalore v. M.S. Jasra and others AIR 1992 SC 1100, it was held that only right of an employee whose services are continued in the transferee bank, consequent upon amalgamation is to claim parity with the employees of the transferee bank itself of corresponding rank of status subject to equivalent qualification and experience.
21. ' In the case of Federal Bank Ltd. v. Sagar Thomas (2004)120 Company Case 63, in a case of disciplinary action having been taken against the employee by the appellant, a scheduled Bank.
22. The respondent's service with the bank stood terminated. The action of the bank was challenged by the respondent by filing writ petition under Article 226 of the Constitution of India. It was held respondent was not trying to enforce any statutory duty on part of the bank. That being the position the writ petition was not maintainable.
23. ' In the case of Allied Bank of Pakistan Ltd. v. Muhammad Ayub Tanweri and another 2001 PLC 607 after serving of grievance notice, the workman an employee of Bank moved to Sindh Labour Court.
24. During pendency of the matter before Labour Court section 2-A was inserted in the Service Tribunal Act, and Labour Court held that proceedings stood abated. Order of Labour Court was called in question before Labour Tribunal, where in view of majority shares are holding private parties, order was set aside, and matter was remanded to Labour Court . The Bank filed Constitutional Petition in this Court against the order of remand, the learned Division Bench of this Court after taking in consideration section 5(1) of Banks (Nationalization) Act, dismissed the petition while observing that by no stretch of imagination it could be assumed that Government continues to retain any controlling interest in the petitioner-Bank.
25. ' As regards the show-cause-notice under section 3 of Removal from Service (Special Power)
26. Ordinance, 2000 the said Ordinance is applicable only to the employees of government or person in service of corporation. The person in service of Corporation has been defined in Removal from Service (Special Powers) Ordinance, 2000 as, every person in the employment of corporation, corporate bodies, authorities or statutory bodies established, owned, managed or controled by th e government or by or under any law for the time being in force or a body or organization in which has a controlling share or interest.
27. ' Admittedly, respondent-Bank is neither corporate body setup, established own under the management or control by the government, and we are of view that Removal from Service (Special Powers) Ordinance, 2000 is not applied to respondent.
28. ' After show-cause notice, providing opportunity of hearing order impugned was passed by the respondent.
29. ' The respondent-Bank is not covered by the definition of 'person' given under Article 199 as respondent is not a corporation under the control of Federal Government or Provincial Government.
30. ' The principal laid down in the case of Muhammad Hussain (supra) is not applicable to the facts of this matter, ' Be that as it may, C.Ps.Nos.D-109/05, 1822/07 filed in this Court and C.P.No,D-226 of 2007 filed in Quetta High Court were dismissed as not maintainable against the respondent-Bank. Respectfully following the same as petitioner has failed to convince us to take a different view than view taken in the above referred constitutional petition, the petition is liable to be dismissed on this ground alone.
31. ' These are the reasons of our short order 9-2-2009.