' SADIQ HUSSAIN BHATTI, J.---The petitioner, AVM (R) S.J. Raza, being aggrieved by and dissatisfied with the Order dated 31-8-2009, passed by Appellate Bench No,II of the Securities and Exchange Commission of Pakistan, whereby Appeals Nos.22 of 2007 to 25 of 2008, filed inter alia by the petitioner, were dismissed and the penalty imposed by respondent No,1 vide its order dated 30-5- 2008 was upheld, has filed this petition assailing the said orders.
2. The brief facts of the case are the petitioner is a director of Dawood Investment Bank Limited, a company incorporated under the Companies Ordinance, 1984. In November, 2006, under the orders of Executive Director (Specialized Companies Division), the Inspectors of respondent No,1 carried out an on-site inspection of the said company to verify its status and its compliance of the statutory and regulatory framework in order to determine its health as on September 30, 2006. The Inspectors, after conducting the inspection, submitted their report to the Specialized Companies Division which pointed out that the following investments were made by Dawood Investment Bank Limited in violation of the relevant laws/rules:--
(a) Investment of Rs, 50 million in Jamshoro Joint Venture Limited.
(b) Investment of Rs, 23.94 million in World Bridge Connect (Private) Limited.
(c) Investment of Rs,4.94 million in Caldwell New York Partnerships II Units, and
(d) Investment of Rs, 5.0 million in Cybersoft Technologies Limited.
3. Accordingly, respondent No,1 issued show cause notice dated 31 October, 2007 under section 282(J)(1), (2), (3) and (5) read with section 282(M)(1) of the Companies Ordinance, 1984 (hereinafter referred to as the "Ordinance, 1984") for violation of Prudential Regulations for Non- Banking Finance Companies, 2004 (hereinafter referred to as the "Regulations, 2004") to the respondents under section 282-D of the Ordinance, 1984 and Rule 7(2)(h) of the. Non-Banking Finance Companies (Establishment and Regulation) Rules, 2003 (hereinafter referred to as "Rules, 2003"). This show cause was replied by the petitioner vide letter dated 17 November, 2007.
Thereafter, after hearing the petitioner, the respondent No, 1, vide order dated 30-5-2008, found that the "the violation committed by the Company and the Directors sand established and have been conceded to by the Directors..." and accordingly a fine of Rs,1.0 million was imposed on the CEO and the Directors of the said company. The petitioner challenged this imposition of fine before the Appellate Bench No,II of the respondent No,1, but without any success. Hence, he filed the present petitioner.
4.
4. Mr. M. Saleem Thepdawala, learned counsel for the petitioner submitted that under section 196(2)(h) of the Ordinance, 1984, the Directors of a company have been entrusted with the powers of invest the funds of the company. He also submitted that the show cause notice was issued without any authority as the power conferred on the issuing authority was withdrawn which rendered the show cause notice issued by the Executive Director void and without jurisdiction and, therefore, no proceedings thereon were maintainable under the law. He also contended that the show cause notice was issued for violation of provisions contained in Rule 7(2)(h) of the Rules, 2003 which was in negation of section 196(2)(e) of the Ordinance, 1984 and the same was subsequently amended through S.R.O. No,1131(1)/2007 dated 21-11-2007. Since the show cause notice was issued 31-10-2007, therefore, according to the learned counsel, the show cause notice became infructuous.
5. On the other hand, Mr. Khurram Rasheed, learned counsel for respondents Nos.1 and 2, at the very outset attacked the maintainability of this petition on the ground that adequate remedy by way of an appeal under section 34 of the Securities and Exchange Commission of Pakistan Act, 1997 (hereinafter referred to as the Act of 1997") was available to the petitioner but instead of availing the same he has approached this Hon'ble Court under its writ jurisdiction. He denied that the authority delegated to the Executive Director was ever withdrawn or that any such alleged withdrawal of the authority rendered the show cause as illegal and void. He also stated that the proceedings were validly initiated against the petitioner under the relevant laws/rules. He submitted that no such ground was taken by the petitioner before the Appellate Bench and, therefore, the petitioner cannot raise the said plea for the first time before this Court. He, therefore, prayed for dismissal of the petition.
6. We have heard the learned counsel for the parties and have gone through the record with their assistance.
7. Before touching the merits of this case, we would first like to dilate upon the maintainability of this petition.
8. It is an admitted position that when the respondent No,1 issued show cause notice dated 31 October, 2007, to the petitioner for violation of provisions of the Ordinance, 1984 as well as Rules, 2003, the same was replied vide letter dated 17 November, 2007. Thereafter, after hearing the parties; respondent No,1, vide its order dated 30-5-2008, found the petitioner guilty of such breaches and imposed a fine of Rs,1.0 million inter alia on the petitioner. The petitioner challenged the order dated 30-5-2008 through an appeal under section 33 of the Act before the Appellate Bench No,II of respondent No,1 which decided the case vide order dated 31-8-2009 in the following terms:- "In view of the foregoing, we hereby modify the Impugned Order passed by the then Commissioner (SCD) to the extent that penalties imposed on Mr. Safdar Rashid and AVM (R) Raza stand reduced to Rupees 0.8 Million and Rupees 0.2 Million respectively as they were not on the BoD at the time of investment in securities mentioned in paragraph 10(e) above. The rest of penalties imposed in the Impugned Order, except the one on Mr. Shamshad Ahmed are upheld."
' After dismissal of the appeal by the Appellate Bench of the Commission, the petitioner was required to file an appeal under section 34 of the Act of 1997. It would be advantageous to reproduced provisions of section 34 of the Act of 1997, the same read as under:--
34. Appeal to the Court.---.(1) An appeal shall lie to the Court referred to in Part II of the Ordinance in respect of an order of the Commission comprising two or more Commissioners or the Appellate Bench.
(2) The appeal under subsection (1) may be filed within sixty days of the date of the decision and shall be accompanied by a fee of one hundred rupees.
' Thus, it would be seen that the Act of 1997 provides a remedy against an order passed by two or more Commissioners or the Appellate Bench. However, at this juncture, for reasons best known to the petitioner himself, instead of following the route provided to him by the Act for assailing the order passed by the Appellate Bench, he abandoned such process altogether and rushed to this Court by filing the instant petition. It is noted with concern that lately the tendency to by-pass the remedy provided under the relevant statute to press into service constitutional jurisdiction of the High Court has now assumed alarming proportion. This will render the remedies provided by the relevant statutes as redundant which cannot be appreciated at all. In the case reported as Al-A hram Builders (Pvt.) Limited v. Income Tax Appellate Tribunal (1993 SCM R 29), the Hon'ble apex Court, at page 38, held as 'under:- "9. We may now revert to the question, whether the appellant was justified to file above Constitution Petition against the order of the Tribunal instead of invoking section 136 of the Ordinance for making a reference to the High Court. According to Mr. Rehan Naqvi a reference under the above provision would not have been adequate and efficacious remedy as it would have taken years before it could have been heard. The same could be true for a Constitution Petition. The tendency to bypass the remedy provided under the relevant statute to press into service constitutional jurisdiction of the High Court has developed lately, which is to be discouraged. However, in certain cases invoking of constitutional jurisdiction of the High Court instead of availing of remedy provided for under the relevant statute may be justified, for example when the impugned order/ action is palpably without jurisdiction and/or mala fide. To force an aggrieved person in such a case to approach the forum provided under the relevant statute may not be just and proper.
10. In the present case, the appellant had opted to avail of the hierarchy of forums provided for under the Ordinance upto the stage of filing of appeal before the Tribunal and, therefore, it would have been proper on the part of the appellant to have invoked section 136 of the Ordinance for making a reference to the High Court instead of filing a constitutional petition. In our view, once- a party opts to invoke the remedies provided for under the relevant statute, he cannot at his sweet will switch over to constitutional jurisdiction of the High Court in the mid of the proceeding in the absence of any compelling and justifiable reason.
' In the present case, the appellant had succeeded before the Appellate Commissioner, but upon filing of appeal, the Tribunal set aside the appellate order and remanded the case to the I.T.O. For framing assessment. Against the above order, the proper course would have been to file a reference under section 136 of the Ordinance as observed above. Apparently, there was no compelling and justifiable reason, which could have prompted the appellant to file above constitutional petition.
11. Though the High Court had declined to exercise its constitutional jurisdiction for the reasons other than the above ground, but refusal to press into service above jurisdiction is sustainable on the above ground. We are, therefore, not inclined to interfere with the impugned judgment. The appeal is, therefore, dismissed with no order as to costs with the observation that the remark of the High Court as to the evasion of the income tax by the appellant in the impugned judgment is to be ignored and it will still be open to the appellant to contest the impugned notice under section 65 of the Ordinance in accordance with law".
10. In the present case, on receipt of the show cause and imposition of fine by the Respondent No,1, the petitioner rightly approached the forum provided under section 33 of the Act of 1997. However, when the appeal of the petitioner was dismissed by the Appellate Bench No,II, the petitioner, instead of filing an appeal under section 34 of the Act of 1997 before the appropriate forum to challenge the levy of fine; filed the present Constitutional petition. As held by the Hon'ble apex Court in the above cited case of Al-Ahram Builders, it was not open to him to approach this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan "in the absence of any compelling and justifiable reason". Learned counsel for the petitioner has not disclosed any reason, what to speak of "any compelling and justifiable reason" as to why the petitioner approached this Court rather than availing the remedy provided under the Act of 1997.
11. In the case reported as Shabbir Ahmed Shaikh v. Government of Baluchistan and others (1988 CLC 2267) the term 'adequate remedy' was discussed in the following terms:-- "There can be no cavil to the proposition that if an adequate remedy is available to the petitioner by way of appeal or a suit etc. Which is also specific, prompt and efficacious, the extraordinary remedy by way of writ would not be competent. But there are circumstances under which the superior Courts of the country have exercised writ jurisdiction in cases where authorities have acted in excess of the jurisdiction or where the alternate remedy is not prompt or efficacious. The word 'adequate' appears to have been used in general sense which connotes not sufficiency but promptness in obtaining relief. In cases where relief sought for is neither convenient nor speedy or efficacious and order passed is in excess of jurisdiction, the superior Courts normally do not hesitate to exercise writ jurisdiction, if otherwise the facts and the circumstances of the case so required. In the instant case, it was the respondent No, 1 who declined to approve the highest bid offered by the petitioner, and therefore, having resort to his authority by way of appeal would not have been efficacious and adequate remedy. The petitioner cannot be penalized to be asked to go before the authority in appeal that has already rejected his highest bid. Reliance, if necessary may be placed on the following authority:--
12. In the case in hand, the learned counsel has not been able to show that the remedy available by way of an appeal under section 34 of the Act of 1997 was not adequate. It may also be noted that the petitioner availed the remedy available under section 33 of the said Act by filing an appeal before the Commissioner, however, when the appeal was dismissed, instead of approaching the forum provided by Act of 1997, they directly approached this Court under the writ jurisdiction without availing the remedy provided under section 34 of the Act of 1997. As . Held by the Hon'ble apex Court in the case of Al Ahram Builders (Supra), the petitioner cannot, at his sweet will, switch over to constitutional jurisdiction of the High Court in the midst of the proceeding in the absence of any compelling and justifiable reason.
13. Even on merits it may be observed that it is an admitted position that the show cause notice was issued to the petitioner on 31-10-2007 while the alleged withdrawal took place on 21-11-2007.
Although any such amendment is denied by the counsel for the respondents Nos.1 and 2 but if the contention of the learned counsel for the petitioner is assumed to be correct for the sake of arguments only, even then the show cause notice could not be termed as without jurisdiction as amendment, if any, took place after the issuance of the show cause notice. Thus, at the time when the show cause notice was issued to the petitioner the same was validly issued. It is not the case of the petitioner that the amendment was made with retrospective effect. In terms of section 6 of the General Clauses Act, 1897 repeal of an Act does not annul the proceedings initiated under the repealed provisions and or enactment.
14. So far as the exercise of power under section 196(2)(e), of the Ordinance, 1984 is concerned, it may be observed that by virtue of the Rules, 2003 an investment company is required to obtain permission of the SECP before making any investment in unquoted shares. Section 196(2)(e) of the Ordinance, 1984 enumerates the general powers of the directors of a company while the specific law i,e, the Rules, 2003 and Regulation 6(1)(c) of Part II of the Regulations, 2004 were to be followed by the petitioner before making any investment in unquoted shares. A perusal of the record shows that the company, after realizing the mistake, approached the SECP for ex-post facto approval.
Thus, even the Directors were mindful of the default committed by them.
15. It may also be worth mentioning that the impugned order was passed on 31-8-2009 and, as per section 34 of the Act of 1997, the petitioner was required to file the appeal under section 34 of the said Act within sixty days. However, it is noted that the petition was presented in this Court on 25-11- 2009 i,e, well after the expiry of the period of limitation. Thus, it seems that it was an afterthought that the present petition was filed. Otherwise, if the petitioner were so eager to challenge the impugned order, he should have challenged the same as early as possible but not beyond the period of limitation provided for the filing of the appeal. There is no cavil with the proposition that no limitation period is provided for filing of a petition but at least the petitioner has to be vigilant.
Therefore, the petition is liable to be dismissed on the ground of laches also as no explanation for such delay was given.
16. Since Article 199 of the Constitution clearly imposes as embargo on the filing of a writ petition in case adequate and alternate remedy is available to the petitioner, therefore, we are not inclined to entertain this petition.
17. In view of the above discussion, we are of the view that on merits as well as on the point of maintainability of the petition due to non-availing of the adequate alternate remedy provided under the law, this petition is liable to be dismissed. Writ jurisdiction of this Court cannot be used to circumvent limitation and/or as a substitute of alternate and efficacious remedy available under the law. See Khalid Mehmood v. Collector Qf Customs, Customs House, Lahore (1999 SCM R 1881).
We, accordingly, dismissed this petition in limine vide our short order dated 16-1-2013. The above are the reasons for the same.