' IJAZ AHMED CHAUDHRY, J.--- Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Mst. Parveen Jahan petitioner has challenged the Office Order No,52 dated 2-2-2010 passed by the Enquiry Committee being Authority under the provisions of Rule 3(1)
(d)(iii)(iv & vii) of E&D Rules, 2004 of the Bank whereby the penalties of dismissal from bank service and recovery of pecuniary loss of Rs,350,000 have been imposed upon the petitioner.
2. The brief facts of the case are that the petitioner after qualifying from Punjab Public Service Commission had been appointed as Manager in the Bank, who then was promoted to the post of Chief Manager/Zonal Chief and during this period nothing was reported adverse against the petitioner, but the petitioner always performed her duties in the best interest of the bank. On 26-12- 2007, an Office Order No,581 was issued by the Acting General Manager, whereby an Inquiry Officer was appointed to hold a fact finding inquiry on the allegation that Demand Draft No,DD-0226035 dated 4-5-2005 for Rs,3,50,000 (Rupees three hundred fifty thousand only) had been issued by MC Bank Ltd (MCB), CMH Rawalpindi Branch in favour of the Punjab Provincial Cooperative Bank Ltd.
(PPCBL), to be drawn on MCB, Neela Gumbad Branch, Lahore and on 16-8-2005 the amount of said demand draft was illegally got credited by the petitioner Mst. Parveen Jahan, former Chief Manager, Properties Section presently posted as Head CRMD & CAD Division, Head Office, Lahore to her personal account No,2093-01 maintained with Main Branch, PPCBL, Lahore. Subsequently, she withdrew an amount of Rs,3,20,000 through self cheques No,1372584 on 20-8-2005 and remaining amount of Rs,30,000 on other different dates. Mr. Tassaduq Hussain former Chief Manager, A&I, Head Office, Lahore vide Office Order No,581 dated 26-12-2007 was appointed to hold preliminary inquiry. On the report of Inquiry Officer all the accused officers namely (i) Mr. Muhammad Umber, Officer, (ii) Mr. Muhammad Waseem, Manager, (iii) Syed Sajjad Hussain Shah, Manager, (iv) Mr. Muhammad Naseem, Acting Senior Manager and (v) Mst. Parveen Jahan, Chief Manager/petitioner were served upon with the show-cause notices by the Standing Sub- Committee/Authority under Rule 5(4) of E&D Rules, 2004 of the Bank with the approval of the President, PPCBL. Later on, vide Office Order No, 34 dated 28-1-2008 they were directed to appear before the Standing Sub-Committee/Authority on 14-2-2008. All the accused appeared before the Authority and explained their position except Mst. Parveen Jahan petitioner, Chief Manager, who filed Writ Petition No,1121 of 2008 in this Court challenging the Office Order No,581 dated 26-12-2007, Show-Cause Notice No,443-46 dated 25-1-2008 and Office Order No,34 dated 28-1-2008. This said writ petition was disposed of on 4-6-2009 with the direction that at first instance either the Administrator, PPCBL should himself hold inquiry in the matter or form a committee of the members, senior to the petitioner to hold the inquiry. In the light of direction of this Court, dated 4- 6-2009, an Inquiry Committee comprising of the following officers was constituted under the provisions of E&D Rules, 2004 of the Bank, vide Office Order No,218 dated 19-9-2009:---
(a) Liaqat Durrani, Managing Director/COO (Head Committee)
(b) Mr. Pervaiz Tariq Dar, Former A. General Manager, presently posted as Divisional Zonal Head, Lahore (Member Committee), and
(c) Mr. Muhammad Boota Sajid, Former Chief Manager, Credit presently posted as Head Business Development Division, Head Office, Lahore (Member Committee).
Then Office Order No,52 dated 2-2-2010, which is impugned in this writ petition, has been passed in the following manner:--- "Therefore, in consideration of dishonestly misappropriation/ embezzlement of Demand Draft No,0226035 dated 4-5-2005 Rs,350,000 made by Mst. Parveen Jahan, former Chief Manager, presently posted as Head CRMD & CAD Division, Head Office, Lahore with fraudulent intention, we the undersigned being Authority in this case under the provisions of Rule 3(1)(d)(iii)(iv) and (vii) of E&D Rules, 2004 of the Bank, do hereby impose the undernoted penalties upon her, with immediate effect:---
(i) Dismissal from Bank Service.
(ii) Recovery of Pecuniary loss of Rs,3,50,000".
3. At the very outset the learned counsel for the respondents contends that the Punjab Provincial Cooperative Bank, Ltd. Is a registered Cooperative Society under the Cooperative Societies Act, 1925 and as such it is not a statutory body having no statutory rules, therefore, the writ petition is not competent. In support of his contention, he relies upon The Lahore Central Cooperative Bank Ltd. v.
Saif Ullah Shah PLD 1959 SC 210 wherein it has been held that the writ petition was not proper remedy as matter is almost of master and servant, Faiz Ahmad v. The Registrar, Co-operative Societies, West Pakistan, Lahore PLD 1962 SC 315 in which it has been held that "Cooperative Bank employee not entitled to such notice even if Bank had adopted (by its bye-laws) Civil Service Rules for dealing with misconduct of its employees ---"Bye-laws" not "statutory" guarantee---Protection of section 240(3) not available to employees of non-Governmental concerns---Violation of mere rules not enforceable---Such employees not entitled as of right to copy of report of enquiry held against them." He has also relied upon Zainul Abaidin v. Multan central Co-operative Bank Ltd, Multan PLD 1966 SC 445 to contend that even against "wrongful dismissal of Co-operative Bank employee" writ is not proper remedy in view of Co-operative Societies Act". He has also placed reliance on PLD 1966 SC 848 and PLD 1971 Lah. 748, wherein it has been held that any society/body, which has no statutory rules, its employee cannot file writ petition. To strengthen his contention, learned counsel has also relied upon 1998 SCMR 1452, PLD 1972 Lah. 316, and an order dated 1-8- 2000 passed in Writ Petition No,15194 of 2000 by this Court. Learned counsel further contends that even otherwise the alternate remedy by way of filing an appeal before the Secretary, Co-operative Societies, as Administrator is available to the petitioner and this writ petition is not maintainable on this score as well.
4. In response to the preliminary objection it has been contended by the learned counsel for the petitioner that all the judgments relied upon by the learned counsel for the respondents are prior to the establishment of the Punjab Provincial Co-operative Bank Limited as the said Bank was established in the year 1976 while the bye-laws were made on 16-12-1976; that bye-laws empower the Registrar who is ex officio President of the Bank to'run business of the bank; that according to Bye-law No,6-B, Registrar, Cooperative Societies, Punjab, Chief Auditor, Cooperatives Department and three non-official Cooperators nominated by the Registrar without holding shares or incurring any liability will be members of the Cooperative Bank; that under bye-law No,8(b). A nominated member shall cease to be a member of the bank, if his nomination is revoked by the Registrar; that under bye-law No,14, general meeting shall be attended by the Ex-officio Members, nominated members and delegatees elected in district meetings of member societies, the word has been used in the bye-laws, 'Registrar', who is appointed by the Government of the Punjab under section 4 of the Cooperative Societies Act, 1925. The learned counsel for the petitioner has also referred to Bye-law No,31, which lays down that the Registrar shall sanction final budget; that the Board of Directors have been defined under Bye-law No,32, according to which Registrar, Cooperative Societies, Punjab shall be its Chairman and ex-Officio President of the Bank. Also refers to Bye-laws No,34, which empowers the Registrar to appoint an Administrator who shall have all the powers and duties of the Board of Directors and shall arrange to hold the General Meeting and election of new Board of Directors within 90 days of taking over, unless the period is extended by the Registrar; that Mr. Suleman Ghani, Chairman Planning & Development Board, Punjab was appointed as Administrator of Punjab Provincial Co-operative Bank, Ltd., by Mr. Khalid Pervez, Registrar, Co- operatives Punjab, Lahore on 20-4-2005; that all the powers vested with the Administrator, but the orders were passed by the Registrar of the Bank, who was not authorized in any case to pass such orders; that report and parawise comments have been filed by the President of the Bank/Registrar and not by the Administrator who was running all the affairs of the bank. Relies upon PLD 1984 SC 75, wherein the Registrar had passed the order who was a government functionary and order of the government functionary can be challenged by way of writ petition and even the government functionary is supposed to act in accordance with law; that in the bye-laws word, 'Registrar' has been used, hence, the order is assailable in the writ petition. Relies upon judgment of this Court specially para No,4 of Writ Petition No,7573 of 2005, M. Bilal and others v. Secretary, Cooperative and others. Reliance has also been placed on Writ Petition No,2181 of 1999 titled as Ch. Hameed v. Punjab Provincial Cooperative Bank Ltd. And Writ Petition No,9282 of 2003 titled as Ijaz Ahmad v. Punjab Provincial Cooperative Bank Ltd. Also relies upon D.B. Judgment of this Court, 2003 PLC (C.S.) 770 [Lahore High Court] to contend that under Article 199(1)(a)(i), directing a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a Province of a local authority, to refrain from doing anything he is not permitted by law to do, or to do anything he is required by law to do; that under E&D Rules as claimed by the other side have no statutory status and action of government functionary has been challenged and he has not performed duty in terms of E&D Rules. Learned counsel for the petitioner has further contended that Government of Punjab Finance Department, vide letter dated 2nd May, 2007 in its meeting held on 5th April, 2007 has decided for the merger of the PPCBL with the Bank of Punjab. On merits it is contended that the petitioner has been victimized, who was not guilty of any offence and she was even exonerated by the Acting Senior Manager of the Branch who had written the letter dated 7-2- 2008 that "...the demand draft vide No,0226035 dated 4-5-2005 in the name of PPCBL was deposited by inadvertent mistake/oversight by my staff members along with your house rent cheques amounting to Rs,3890 which was sent by you to deposit in your account No,2093-01 on 16- 8-2005 maintained with PPCBL, Main Branch, Lahore. As to my understanding the amount was paid back to the concerned party and there were left no issue." And it was further maintained in the said letter that "It is now a past and closed transaction further, there is no lose to the bank as proved in fact finding report and no body has complained about it till to date." but the same has not been considered while passing the impugned order by the incompetent authority and the members thereof were biased towards the petitioner; that no proper opportunity has been produced to the petitioner to defend herself, who has not been afforded the opportunity of personal hearing as well; that it was not expected from the petitioner at the 21st year of her service to play a blunder of depositing the impugned amount in her own account to create an evidence against her, who was not at fault as was exonerated above and the impugned order having been passed without jurisdiction by the incompetent authority, the same is liable to be set aside by this Court in the exercise of the constitutional jurisdiction of this Court.
5. In reply to the arguments of learned counsel for the petitioner, the learned counsel for PPCBL submits that Registrar is the Chairman and ex-Officio President of the Bank and name of the Registrar has only been mentioned in order to show that who was present and the inquiry order has been passed by the Inquiry Committee and not by the Registrar; that writ petition is not maintainable as there are no statutory rules and the petitioner has no statutory status, but she was employee of registered society.
6. I have heard the learned counsel for the parties and also gone through the report of the inquiry committee as well as the documents attached therewith.
7. After hearing the learned counsel for the parties and perusal of the documents attached with this petition and the relevant law it is admitted position that under Rule 10 of the Revised E&D Rules, 2004 of the Bank the petitioner has an alternate remedy by way of filing an appeal before the Administrator, who is Secretary, Co-operative Societies and in such a position this writ petition is not maintainable. I do not agree with the learned counsel for the petitioner that the said remedy will be a futile exercise as in fact the said Administrator was behind the passing of the impugned orders, who had constituted an illegal committee after passing of the orders by this Court in Writ Petition No,1121 of 2008 vide orders dated 4-6-2009 for inquiry against the petitioner by the three members, who are senior to her. At this stage this Court cannot go into the merits of the case lest it may prejudice the case of either party in the appropriate proceedings and when the remedy of appeal is available to the petitioner, the same should be first exhausted and all the grounds available to the petitioner may be urged before the competent authority, which will give its independent decision. So far as the preliminary objection raised by the learned counsel for the respondents that the Staff Service Rules, 1986 being not the statuary rules, this writ petition is not maintainable and on the other hand the contention of the learned counsel for the petitioner that earlier the following stance was taken by the learned counsel for the respondents in Writ Petition No,7573 of 2005 vide orders dated 9-5-2005:--- "Learned counsel for the respondent has placed before the Court substantive material showing the financial exposure of the Provincial Government to secure the obligation of the Bank, which is a scheduled Bank under the Banking Companies Ordinance, 1962. The Government of Punjab has issued a guarantee dated 26-6-2004 to the State Bank of Pakistan ("SBP") in the amount of Rs,9.00 billion to secure the liabilities of the Bank owed to the SBP for the financial year 2004-2005."
Will be resolved at some later stage in the appropriate proceedings. For the time being this writ petition is disposed of with a direction that the office shall transmit a copy of this writ petition along with all its Annexures to the Secretary, Cooperative Societies/Administrator, who shall treat it as an appeal and decide the same in accordance with law within a fortnight after affording opportunity of hearing to all the parties concerned. The parties are directed to appear before the appellate authority on 6-3-2010 and the petitioner will be at liberty to agitate the further grounds as well, if so desires, which will be considered as well by the appellate authority.