' The petitioner filed this Constitutional petition originally with the following prayer:-- "It is respectfully prayed that:---
(i) the order passed by respondent No,. 1 dated 30-8-2001;
(ii) the show cause dated 4-8-2001 issued by respondent No,1;
(iii) the report of the respondent No,2 dated 8-6-2001;
(iv) the Audit report dated 23-1-2001 by respondent No,3;
(v) and the Charge-sheet dated 8-11-2001 by respondent No,5; ' be declared to be without lawful authority and of no legal effect.
' It is further prayed that respondents be directed to investigate the complaints and points made to them by the petitioner in his submissions and that it also be directed that the investigation be held in a clean and transparent manner.
' It is further prayed that respondents be directed that pending final determination of the matter, no adverse action be taken against the petitioner."
' The writ petition was dismissed vide order dated 26-11-2001 on the ground that petitioner has alternative remedy to file appeal before the Service Tribunal in view of newly-added section 2-A in Service Tribunals Act, 1973. The petitioner being aggrieved filed civil petition before the Honourable Supreme Court which was converted into Civil Appeal No,522 of 2002 which was accepted by the Honourable Supreme Court vide order dated 5-6-2003 and remanded the case to this Court for decision afresh on merits without being influenced in any manner from earlier order dated 26-11- 2001. During the pendency of the appeal before the Honourable Supreme Court, Governor State Bank of Pakistan passed order dated 15-3-2002 whereby permanently disassociating the petitioner and others from the Banking business. The petitioner filed C.M. No,945 of 2'003 under Order VI, rule 17 read with section 151, C.P.C. And also filed amended writ petition along with aforesaid application.
2. Learned counsel of the petitioner submits that impugned order was passed by respondent No,1 in violation of section 41-A(1) of the Banking Companies Ordinance, 1962 as the impugned orders show that impugned orders were passed by respondent No,1 without his satisfaction which is condition precedent to take action under section 41-A of the Banking Companies Ordinance, 1962.
He further submits that ingredients of aforesaid section are not attracted in case of the petitioner and the respondent-State Bank has not given any reason to pass the impugned orders against the petitioner. He further submits that action has been initiated against the petitioner on the basis of the impugned report of respondent No,2 dated 23-1-2001 which was manipulated as is evident from make up of the Committee and that one of the co-accused Mr. M. Saleem Sheikh Ex-President was allowed to sit on its proceedings. This fact alone is 'sufficient that the impugned order/report dated 23-1-2001 is result of mala fide. That is why respondent No,4 constituted another committee to consider the finding of the first committee and the impugned report. He further submits that petitioner sold his shares at the rate of Rs.22.50 per share and not Rs.84.78 as alleged in the report.
Therefore, the impugned report as well as final action taken by the respondents against the petitioner is result of malice. He further urges that report dated 8-6-2001 is not sustainable in the eye of law on the ground that it is based on the forged documents relied upon by the Audit report which is evident that respondent No,2 could not have proceeded in accordance with the report mentioned above as the audit report has already been reviewed. He further submits that charge- sheet issued by the respondents is also not sustainable in the eye of law and the petitioner did not commit any offence which falls within the category of misconduct. Even otherwise respondent has not provided copy of inquiry report to the petitioner, therefore, action of the respondent is also hit by the principle of natural justice. He further submits that petitioner has not committed any offence and Bank has not sustained any loss by selling the share owned by the petitioner. Therefore, foundation of the case in question does not exist at all.
3. Learned counsel of respondents Nos.1 and 2 raised following preliminary objections qua the maintainability of the Constitutional petition:--
(i) The petitioner has alternative remedy to file an appeal before the Central Board of Directors of State Bank of Pakistan in view of section 41-C(2) of the Banking Companies Ordinance, 1962. In support of his contention he relied upon judgment of the Division Bench of Karachi High Court passed on 11-3-2003 in C.P.Ds.Nos.525 and 669 of 2002.
(ii) The brother of the petitioner challenged the impugned orders dated 15-3-2002 before Karachi High Court which was decided vide judgment dated 11-3-2003 wherein respondent No,1 was allowed to pass any appropriate order on the basis of grounds a and b stated in the impugned order dated 15-3-2002.
(iii) Respondents Nos.1 and 2 have passed the orders against the petitioner at Karachi. Therefore, territorial jurisdiction regarding the subject-matter is only available with Karachi High Court.
' He further submits respondents Nos.1 and 2 have power to take action against the managerial persons of the Banking Companies in view of section 41-A of the Banking Companies Ordinance, 1962. He further submits that action of respondent is in accordance with law on merits. He further submits that in earlier round of litigation Constitutional petition was dismissed in limine on account of alternative remedy available to the petitioner in view of newly-added section 2-a in the Service Tribunals Act, 1973. Therefore, this Court has to first decide the question of maintainability of Constitutional petition in view of preliminary objection raised by respondents No,1 and 2 in report and parawise comments.
4. Learned counsel of respondents Nos..3 to 5 submits that petitioner has placed on record certain documents through C.M. No,749 of 2004 under section 151, C.P.C. For issuance of necessary direction to respondent No,4 to promote the applicant. On the basis of those documents he submits that grievances of the petitioner against Allied Bank of Pakistan are no more in the field and to the extent of Allied Bank of Pakistan the petition has become infructuous. He also adopted the arguments of learned counsel of respondents Nos.1 and 2 qua maintainability of writ petition.
5. Dr. Danishwar Malik, learned Deputy Attorney-General submits that Constitutional petition is not maintainable.
6. Learned counsel of the petitioner in rebuttal submits that Honourable Supreme Court remanded the case to be decided afresh on merits and also allowed the petitioner to challenge the vires of order dated 15-3-2002 passed by the Governor State Bank of Pakistan. Therefore, respondents have no lawful authority to raise objection of maintainability before this Court on the well-known principle of estoppel and waiver as the impugned order of this Court was set aside with consent of the learned counsel of the parties.
7. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused the record.
8. It is better and appropriate to reproduce certain basic facts to resolve the controversy between the parties qua maintainability of the Constitutional petition in presence of alternative remedy:--
(i) Constitutional petition was dismissed by this Court vide order dated 26-11-2001 on the ground that petitioner had alternative remedy to file an appeal before the Service Tribunal in view of newly-added section 2-A in the Service Tribunals Act, 1973.
(ii) The petitioner being aggrieved filed petition before the Honourable Supreme Court which was converted into appeal and appeal was accepted vide order dated 5-6-2003. Operative part of the judgment is reproduced as under:- "6. We are not impressed by his this argument because without challenging the order dated 15th March, 2002 passed by the Governor State Bank of Pakistan independently before the High Court, it would not be possible for us to examine its propriety as by doing so we would be depriving a party against whom the case would be decided by the High Court from the right of petition before this Court. Besides it, we would also be depriving ourselves from the benefit of decision of the High Court in respect of status of the order dated 15th March, 2003.
7. In addition to it, we are of the opinion that the impugned judgment is not sustainable because appellant has been non-suited for the reason not available to the learned High Court as the Allied Bank Ltd. Is a private Bank, therefore, Federal Service Tribunal would have no jurisdiction to grant relief to its employee, in exercise of jurisdiction under section 2-A of the Service Tribunals Act, 1973.
Learned counsel appearing for State Bank of Pakistan also conceded to this legal position. On this parties counsel agreed for disposal of instant appeal in the following terms:-
(1) The order impugned passed by the High Court dated 26th November, 2001 is set aside and case is remanded to the learned High Court for its decision afresh on merits without being influenced in any manner from its earlier order, expeditiously as far as possible within a period of three months, preferably.
(2) Meanwhile, appellant will submit amended Constitutional petition, challenging the vires of the order dated 15th March, 2002 passed by the Governor State Bank, subject to all just exceptions.
(3) Allied Bank Ltd. Shall not take any adverse action against the appellant during the period of three months, which has been specified for disposal of the petition before the High Court. However, if the petition is not disposed of by the High Court within specified period, then the Bank shall be at liberty to proceed against the appellant in accordance with the law.
' In view of consent of the parties counsel, appeal stands disposed of in the terms noted hereinabove. Parties are left to bear their own costs."
' It is pertinent to mention here that Constitutional petition was dismissed in limine vide aforesaid order which was set aside by the Honourable Supreme Court and the case was remanded to this Court to decide the case afresh on merits which does not mean that the respondents are debarred to raise preliminary objection qua maintainability of the Constitutional petition in presence of alternative remedy provided under the Banking Companies Ordinance, 1962. The respondents have raised preliminary objection in view of section 41-C (2) of Banking Companies Ordinance, 1962 as the petitioner has alternative remedy to file appeal before Central Board of Directors State Bank of Pakistan under section 41-C (2) of Banking Companies Ordinance, 1962. It is better and appropriate to reproduce section 41-A and 41-C (2) of the said Ordinance to resolve the controversy between the parties:-- 41-A. Power of the State Bank to remove directors or other managerial persons from office.---(1)
Where the State Bank is satisfied that:--
(a) the association of the chairman or director or chief executive (by whatever name called) or other officer of a banking company not being lower in rank than a branch manager, is or is likely to be detrimental to the interests of the banking company or its depositors or otherwise undesirable; or
(b) in the public interest; or
(c) to prevent the affairs of a banking company being conducted in a manner detrimental to the interest of its depositors or in a manner prejudicial to the interests of the banking company; or
(d) to secure the proper management of any banking company; ' It is necessary so to do, the State Bank may, for reasons to be recorded in writing, by order, remove from office, with effect from such date as may be specified in the order, any chairman or director or chief executive (by whatever name called) or other officer of the banking company.
41-C(1).................................
(2) Any person or banking company aggrieved by an order made by the Governor of the State Bank of Pakistan under section 41-A or section 41-B may make an appeal to the Central Board of Directors of the State Bank whose decision shall be final."
' Mere reading of section 41-A reveals that the said section was introduced in order to maintain purity of Banking Institutions with regard to mismanagement or irregularities which would be committed by the Management of the Banking. Institutions. In arriving to this conclusion I am fortified by the law laid down in Drug Inspector v. F.A. Zuberi and others 1986 CLC 2197. It is well- settled law that where a statute creates a right and also provides machinery for the enforcement of that right, the party complaining of the breach of the statute must first avail himself of the remedy provided by the Statute for such breach before he applies for a writ or order in the nature of writ as the law laid down by the Honourable Supreme Court in Tariq Transport Company v. Bhera Bus Service Sargodha PLD 1958 SC (Pak) 437; Imtiaz Ahmad v. Ghulam Ali PLD 1963 SC 382; Anjuman Arhtian, Khanpur v. Province of Punjab PLD 1990 Lahore 32; Ch. Muhammad Sadiq v. Muhammad Nawaz 1980 CLC 952; Messrs Punjab Club v. EOABI 1991 PLC 72 and Postmaster General v. Custodian Evacuee Property Sindh 1990 CLC 861. Meaning thereby the objection qua maintainability of the Constitutional petition in presence of alternative remedy has been sought without exhausting the existing departmental remedies of appeal and revision and adequate remedies being available the Constitutional jurisdiction cannot be invoked. Availability of adequate alternative remedy no doubt bars the Constitutional remedy under Article 199 of the Constitution and absence of such remedy is a pre-requisite for the invocation of Constitutional jurisdiction. Satisfaction, however, is to be reached by the Court that such projected adequate remedy is, in reality, an adequate one, in the sense of being equally expeditious, beneficial and efficacious. Mere reading of section 41-C(2) mentioned above clearly shows that it is efficacious remedy consisting of highly qualified expert Directors of Central Board of Directors of State Bank of Pakistan. That is why the Division Bench of Karachi High Court in judgment dated 11-3-2003 passed in C.P.Ds. Nos.525 and 669 of 2002 filed by the brother of present writ petitioner challenging the impugned order held that he had alternative remedy to file an appeal before the Central Board of Directors, State Bank of Pakistan. It is settled principle of law that Constitutional petition is maintainable in case the order is wholly without lawful authority but impugned order passed by the Governor of D State Bank is not wholly without lawful authority in view of parameters prescribed by the Legislature in its wisdom in section 41-A of Banking Companies Ordinance, 1962. It is also settled principle of law that question of law can be raised at any stage of the proceedings as the law laid down by the Honourable Supreme Court in Haji Abdullah Khan's case PLD 1965 SC 690. The objection of learned counsel of the respondents has a force in view of the law laid down by this Court in Writ Petition No,4174 of 1998 by my learned brother Ehsan-ul-Haq Chaudhry, J. (as he then was) and laid down the following principle:-- "There is recent tendency to file Constitution petition without exhausting the remedies under the Statute. This recent trend is dangerous. Honourable Supreme Court clearly held in the case reported as "in Sabir Shah v. Shad Muhammad Khan, N.-W.F.P. And another" PLD 1995 SC 66, "The Collector Custom, Karachi. v. Messrs. New Electronics (Pvt.) Ltd. And 59 others" PLD 1994 SC 363 and Riffat Askari v. State" PLD 1997 Lahore 285 that objection be raised in the proper forum but in spite of the petitioner without exhausting the remedies of appeal before the Collector of Customs (Appeals) and the Tribunal has filed this petition. It is noteworthy that according to the amendment made through Finance Act, 1997, now third appeal is competent in this Court also which is to be heard by at least a Bench of two Judges.
' It is consistent view of the Honourable Supreme Court that the opportunity must be given to the Department to adjudicate the matter first and then the petitioner should have to approach this Court after available all the remedies provided under the statute. I am supported by the judgment of the Honourable Supreme Court 1993 SCMR 29.
' In case contents of the Constitutional petition and report and parawise comments are put in a juxtaposition then it brings the case of the petitioner in the area of disputed question of fact. This Court has no jurisdiction to decide the disputed question of fact in Constitutional jurisdiction as the law laid down by the superior Courts in the following judgments, therefore, Constitutional petition is not maintainable in presence of alternative remedy coupled with the fact that by afflux of time almost all the grievance of the petitioner qua Allied Bank of Pakistan are no more alive except impugned order dated 15-3-2002 passed by the Governor State Bank of Pakistan under section 41- A of Aforesaid Ordinance on the basis of which Allied Bank has not posted him in Management side and this Court has ample jurisdiction to look into the subsequent events at the time of deciding cases:-- ' M. Hashim v. Provincial Election Authority 1985 SCMR 1338.
' Muhammad Younas Khan's case 1993 SCMR 618.
' Gul Muhammad v. Government of Sindh PLD 2004 Karachi 293.
' Funfair (Pvt.) v. Karachi Development Authority PLD 2004 Karachi 170.
' Mst. Amina Begum and others v. Mehar Ghulam Dastgir PLD 1978 SC 220.
' It is also settled principle of law that Constitutional jurisdiction is discretionary in character keeping in view the aforesaid circumstances as the petitioner has alternative remedy under the provisions of law, therefore, I am not inclined to exercise my discretion in favour of the petitioner in presence of alternative remedy as the law laid down by the Honourable Supreme Court in M.
Hashim v. Provincial Election Authority 1985 SCMR 1338 and Nawab Syed Raunaq Ali's case PLD 1973 SC 236.
9. In view of what. Has been discussed above, the Constitutional petition is not maintainable.
Therefore, the same is dismissed. In somewhat similar circumstances the Honourable Supreme Court has laid down following principle in Aslam Trader's case 2000 SCMR 65. The relevant observation is as follows:-- "In consequence, the petitioners are allowed to avail remedy of appeal before the proper forum within 20 days from today, which, if, filed, the said forum shall give benefit as regards delay of the period during which writ petitions remained pending before the High Court and shall decide the appeal on merits as well as the prayer for interim relief"
' Keeping in view the principle laid down by the Honourable Supreme Court in Aslam Trader's case supra the petitioner is well within his right to file appeal under section 41-C(2) of Banking Companies Ordinance, 1962 before the appellate authority then the appellate authority shall decide the same on merits and shall not dismiss the same as time-barred.
' The writ petition is disposed of in the aforesaid terms.