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Petitioner: MUHAMMAD IQBAL VS Respondent: GOVERNMENT OF BALUCHISTAN And 2 Others
Court Name: Balochistan High Court Judge(s): Mir Hazar Khan Khoso, Ajmal Mian Title: MUHAMMAD IQBAL vs GOVERNMENT OF BALUCHISTAN And 2 Others Case No.: Civil Petition No.19 of 1985 Date of Judgment:1985-10-22 Reported As: 1986 PLC (C.S.) 81 Result: Petition dismissed
JUDGMENT
JUDGMENT AJMAL MIAN, ACTG. C.J.--This petition is directed against the order, dated 31st October, 1979 terminating the petitioner's services. The brief facts leading to the filing of the above petition are that the petitioner was appointed as Cashier in the Divisional Cooperative Bank Limited (hereinafter referred to as the 'defunct Bank) with effect from 16th December, 1964. He was promoted as Manager/ Administrator on 1st August, 1973. While the petitioner was working as the Manager of a Branch of the defunct Bank, the Establishment of the Federal Bank for Cooperatives and Regulation of Cooperative Banking Ordinance, 1976 (hereinafter referred to as the 'Ordinance') was promulgated through a Gazette of Pakistan, Extraordinary, Part I, dated 16th October, 1976 which inter alia, contemplated the dissolution of the existing various Cooperative Banks except in the provinces the Provincial Cooperative Bank Ltd., and also the establishment of a Federal Bank for Cooperatives. In pursuance of subsection (4) of section 42 of the Ordinance, the Registrar, Cooperative Societies Baluchistan (hereinafter referred to as the 'Registrar ) with the approval of the Provincial Government through his order No. 3677 RCS/Bale./76, dated 8th December, 1976 notified, inter alia, that the defunct Bank stood dissolved. This was followed by another order of the Registrar bearing No. 3696 RCS/Baln./F.B./76, dated 8th December, 1976 notifying that the Officers and Employees of the defunct Bank and other dissolved Cooperative Banks shall become Officers and Employees of the Baluchistan Provincial Cooperative Bank Limited. The petitioner has also filed a number of other documents to indicate that for all intents and purposes, he was absorbed in the Baluchistan Provincial Cooperative Bank Limited (hereinafter referred to as the 'Bank') and continued to perform his functions till on 31st October, 1979, when the Secretary of the Bank by his
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letter No. HO-16/70/104, dated 31st October, 1979 purported to terminate the petitioner's services. It may be advantageous to reproduce hereinbelow the contents thereof, which read as follows:--- "Telegram". Prov: Bank 786 Phone 74926 THE BALUCHISTAN PROV: CO-OP. BANK LTD. H.O. (JINNA H ROAD) QUETTA. Ref. No. HO-16/70/104, dated 31-10-1979 MR. MUHAMMAD IQBAL. MANAGER, Div. Coop Bank Ltd. (Dissolved), Liaquat Bazar, Quetta. Dear Sir, TERMINATION OF SERVICE. I am directed to inform you that your services have been considered surplus by the Committee of the Baluchistan Provincial Cooperative Bank Limited, keeping in view the financial position of the Bank/your service record. Therefore, you are hereby advised that your services are no longer required by the Bank after 30-11- 1979 and this letter may be considered as one month's notice. Yours faith fully, (Sd.) Secretary Committee. GENERAL MANAGER" On .The same day i.e.; 31st October, 1979, the petitioner was appointed in the Recovery Cell purely on temporary basis. It may also be pertinent to reproduce hereinbelow the above appointment letter, which reads as follows:-- "THE BALUCHISTAN PROV." CO-OP. BANK LTD. H.Q. JINNA H ROAD QUETTA. Ref. No. H 0-16/79/116, dated 31-10-1979 Mr. Muhammad Iqbal, C/o Baln. Prov. Coop. Ltd. Hub Chowki (Distt. Lasbella) Dear Sir, APPOINTMENT It has been decided to appoint you in the Bank's Recovery Cell on your existing salary which you are drawing at present in your dissolved bank. The appointment is purely temporary and initially for a period of three months. We shall be glad if you please convey your acceptance to us in writing by 15-11-1979 at the latest. Yours faith fully, (Sd.) (C.M. LATIF), General Manager." The petitioner did not accept the above termination and the appointment. But filed an appeal before the respondent No. 1, which was dismissed on 3rd January, 1980. It will not be out of context to mention here that the services of a number of other persons including a Manager, Mr. Maqbool Hussain, were also terminated. He had also filed an appeal against the above order, which was also rejected. The petitioner and said Maqbool Hussain filed Constitutional Petitions Nos. 23 of 1980 and 24/80. During the pendency of the above petitions, the petitioner in pursuance of a consent order, dated 4th January, 1980 started working in the Recovery Cell on the basis of above fresh appointment, dated 31st October, 1979 in terms of his letter, dated 19th April, 1980, addressed to the
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General Manager of the Bank, wherein it was stated that the petitioner was prepared to accept the job pending the final decision of the Honourable High Court of Baluchistan in Constitutional Petition No. 23/80. It seems that above Constitutional Petition was dismissed in default on 11th March. 1984. Thereupon, the petitioner's services were again terminated by a letter, dated 15th March, 1981. However, the above petition was restored by an order, dated 22nd April, 1984. But the petitioner was not reinstated. The above petition was allowed by a Division Bench of this Court through a judgment dated 11th November 1984 and the cases of the petitioner and of said Maqbool Hussain were remanded to the Appellate Authority with the direction to decide the appeals after nearing the petitioner and the said Maqbool Hussain. The petitioner's appeal was dismissed by an order, dated 26th February, 1985. Consequently, the petitioner has filed the present petition. It may be pertinent to mention that the appeal of the said Maqbool Hussain was allowed by an order, dated 7th August, 1985, in pursuance whereof, said Maqbool Hussain was reinstated by an order, dated 2nd September, 1985. 2. Mr. Iftikhar Muhammad, Advocate assisted by Mr. Khalid Malik, Advocate appearing for the petitioner has made the following submissions: -- (i) That the petitioner stood permanently absorbed in the Bank upon the promulgation of the, Ordinance and, therefore, the petitioner's services could not have been terminated; (ii) That para. 7 (iii) of Notification No. SOA(iv)144-20/78-Coop. 7193-95, dated 19th August, 1979 (hereinafter referred to as the 'Notification') issued by the order of the Governor empowering the Bank to dispense with the services, is ultra vires of section 42 of the Ordinance; (iii) That even otherwise, the requirements of above para. 7(iii) of the Notification have not been complied with; and (iv) That the action is mala fide. On the other hand, Mr. Muqim Ansari, learned counsel for the respondent No. 1 has contended as under:-- (i) That at no point of time, the petitioner was permanently absorbed in the Bank, as it could have been done in pursuance of an order of the Provincial Government; (ii) That under para. 7(iii) of the Notification, which was issued in terms of subsection (4) of section 42 of the Ordinance the Bank was competent to terminate the petitioner's services; (iii) That since the dispute related to a Cooperative Bank, the petitioner should have involved section 54 of the Cooperative Societies Act; and (iv) That the petitioner being an employee of a Bank, the relationship between the Bank and the petitioner is that of Master and Servant and, therefore, the petitioner has no right to maintain the above petition for reinstatement. 3. Adverting to the question, whether the petitioner was permanently absorbed in the Bank or not, it may be pertinent to refer to Explanation IV of subsection (4) of section 42 of the Ordinance, which reads as follows: -- "(IV) Save as otherwise decided by the Provincial Cooperative Bank, but subject to the order referred to in this subsection of the concerned Provincial Government, all officers and other employees of a cooperative bank, holding office immediately before the commencement of this Ordinance shall become, the officers and employees of the Provincial Cooperative Bank" A plain reading of the above explanation indicates that all officers and other employees of the dissolved Banks holding office immediately before the commencement of the Ordinance, were to become the officers and employees of the Provincial cooperative Bank, save as otherwise decided by the Provincial Cooperative Bank and subject to the order referred to in subsection (4) of the Provincial Government. We have already referred to above two orders, dated 8th December, 1976 issued by the Registrar (Annexures "B" and "C" to the petition). In addition to the above documents, it may be appropriate to refer to some other documents on record, which have direct bearing on
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the above question of fact, namely, the Registrar's Memorandum No---RCS/BALN/F.B./76, dated Quetta the ---.. November 1976 addressed to the Secretary. Government of Baluchistan, Cooperation Department, Quetta, which deals with the question of dissolution of Cooperative Banks in Baluchistan and the position of their staff. In this regard, it has been stated that the officers and the other employees, of these Cooperative Banks shall become the officers and employees of the Baluchistan Provincial Cooperative Bank Limited, as laid down in Explanation IV to subsection (4) of section 42 of the Ordinance. This was followed by the above Annexures "B" and "C". Reference may also be made to the Bank Resolution No. 2, dated 11th December, 1976 (Annexure "D" to the petition) in which, inter alia , it was resolved that the staff of the dissolved Bank would become the staff of the Bank. The relevant portion of the above resolution reads as follows:-- After that the Registrar by his order No. 3798-RCS/ BALN/F.B./76, dated 29th December, 1976 (Annexure "E" to the petition) issued the posting letter, inter alia, in respect of the petitioner. In response to the latter Annexure, the petitioner through his letter, dated 30th December, 1976 submitted to the Registrar his joining report as the Branch Manager of the Bank Liaquat Bazar Branch, Quetta with effect from 30th December, 1976, a copy whereof, was endorsed to the General Manager of the Bank. This was followed by the Registrar's letter, dated 7th June, 1977 whereby, the petitioner was allowed temporarily to continue as officiating General Manager subject to the confirmation by the Board of Directors. It may also be pertinent to observe that there was a proposal of closing three branches of the Bank in Quetta Town. In the above proposal, it was also provided that the staff working therein, would continue to be the employees of the Bank and would be provided some other jobs. The above proposal was approved by the Provincial Government and the Martial Law Administrator Zone "D". In this behalf reference may be made to Annexures "J" to "L". But the above proposal for some reason was not implemented. Reference may also be made to Annexure "L-1", which is a resolution of the Board of Directors of the Bank, dated 26th December, 1978 appointing the petitioner as the Manager of the newly opened branch at Hub Chowki. From the above documents, particularly from the aforesaid resolution No. 2 of the Board of Directors, dated 11th December, 1976, it is evident that the petitioner was permanently absorbed in the Bank. The question, whether the respondent No. 2 could have terminated the petitioner's services and, whether the petitioner is entitled to the relief of reinstatement, is to be dealt with hereinbelow with the question of relationship of that of Master and Servant between the petitioner and the respondent No. 2. However, it was contended by Mr. Muqim Ansari, learned counsel for the respondents Nos. 2 and 3 that the petitioner was paid his salary from the assets of the defunct Bank and that till the approval of the Provincial Government, the petitioner could not have been absorbed in the Bank. The factum that the petitioner was paid from the assets of the defunct Bank, is of no consequences, as admittedly, the said assets stood vested in the Bank. It is also devoid of any force that in the absence of the approval of the Provincial Government, the petitioner could not have been permanently absorbed. As pointed out hereinabove, under explanation (iv) to subsection (4) of section 42 of the Ordinance, the Bank is competent to absorb any employee of the defunct Bank or other dissolved Banks, but this is subject to the contrary order, if any, of the Provincial Government. In the present case, the Provincial Government had not passed any contrary order in relation to the petitioner in terms of the above explanation (iv) and, therefore, on the basis of the above resolution No. 2, dated 11th December, 1976 passed by the Board of Directors of the Bank, the petitioner in terms of the above explanation stood permanently absorbed. Reliance has also been placed by Mr. Muqim Ansari, learned counsel for the respondents Nos. 2 and 3 on para. 7(iii) of the Notification in support of the impugned order of termination of the petitioner's services. It may not be out of context to reproduce hereinbelow the above para. 7 in toto, which reads as follows:--
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"7(i) All officers and employees of the said Banks shall be deemed to be the officers and employees of the Provincial Cooperative' Bank and their seniority shall be fixed from the date they are taken by Provincial Cooperative Bank Ltd. (11) Such officers and employees shall be governed by the terms and conditions as may be determined by the Provincial Co-operative Bank Ltd; but such terms and conditions shall not be less favourable than the terms and conditions applicable to them immediately before their transfer to the Provincial Cooperative ` Bank, but they shall be liable to transfer throughout the Province of Baluchistan. (iii) Provincial Cooperative Bank Ltd. Shall have the right to dispense with the services of the employees of the dissolved banks by paying them dues on preference basis in case they are not considered to be useful for the bank in the light of their qualifications, service record, efficiency or any other reason. (iv) In case of termination of service of any officer or employee before integration into unified cadre such officer or employees shall be entitled to the benefits which were admissible to them immediately before their transfer to the Provincial Cooperative Bank Ltd. (v) The Provincial Cooperative Bank Ltd., shall have power to take disciplinary action against such officers and employees, whenever necessary, in accordance with its own Establishment Rules and Standing Orders." A perusal of the above-quoted para. Of the Notification issued in terms of section 42(4) of the Ordinance, reveals that all officers and employees of the Bank, were to be deemed to be the officers and employees of the Provincial Cooperative Bank and their seniority inter se was to be fixed from the date they were taken by the Provincial Cooperative Bank. It is also clear that they are to be governed by the terms and conditions as might be determined by the Provincial Cooperative Bank Ltd. But such terms and conditions were not to be less favourable than the terms and conditions applicable to them immediately before their transfer to the Provincial Cooperative Bank Limited. It may also be observed that sub-clause (iii) empowers the Provincial Cooperative Bank Ltd; to dispense with the services of the employees of the dissolved Banks by paying them dues on preference basis in case they are not considered to be useful for the Bank in the light of their qualifications, service record, efficiency or any other reason. It is true that under the above sub- clause (iii), the Bank has been given the power to dispense with the services of any of the employee, but in order to invoke this provision, it is incumbent to examine the case of the employee concerned on the basis of the criterion provided therein, namely, usefulness of his services to the Bank in the light of (i) his qualifica--tions, (ii) his service record, (iii) his efficiency, or (iv) any other reason. But the above para. Of the Notification would have been applicable to the petitioner if he would not have been permanently absorbed by that Board of Directors by Resolution No. 2, dated 11th December, 1976 prior to the issuance of the Notification. It cannot be made applicable retrospectively to those employees, who were already absorbed by, the Board of Directors of the Bank in the absence of any contrary order of the Provincial Government. It must follow that para. 7 of the Notification was not applicable. 5. As regards the second submission of Mr. Iftikhar Muhammad, learned counsel for the petitioner that para. 7(iii) of the Notification is ultra vires of section 42 of the Ordinance, it may be stated that under subsection (4) of section 42 of the Ordinance read with explanation (iv), the Government had the requisite power to lay down the terms and conditions for the purpose of transfer of the undertakings of the dissolved Banks, it had also the power to dispense with the services of the employees. The Notification, therefore, cannot be said to be ultra vires of section 42 of the Ordinance. The only question is, whether para. 7 of the Notification was applicable to the petitioner, which aspect has been dilated upon hereinabove.
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6. However, Mr. Iftikhar Muhammad, learned counsel for the petitioner has relied upon the following judgments:-- (i) Hirjina Salt & Chemicals (Pak) Ltd., Karachi v. The Union Council, Gharo and another, reported in PLD 1972 Kar. 145, in which, a D.B. Of the erstwhile High Court of Sind and Baluchistan while construing the provisions of Basic Democracies Order, 1959,and the West Pakistan Union Councils Dharat (Fees for Markets) Rules, 1961, observed that the rule cannot prevail upon the provision of a statute by simply providing that the rule shall be deemed to be a part of the statute and, in case, of any inconsistency between them, the statute must prevail. (ii) Haji Hashmatullah and 9 others v. Karachi Municipal Corporation and 3 others, reported in PLD 1971 Kar. 514. In the above case, a D. B. Of the erstwhile High Court of Sind and Baluchistan while construing the provisions of Municipal Administration Ordinance (X of 1960) and West Pakistan Municipal Committee (Property) Rules, 1962, held that the rules which deviate from the statute and confer excessive power, are. Repugnant to statute and void to that extent. (iii) The United Industrial Bank, Limited v. (i) Mohan Bashi Saha (11) The Central Bank of India, Limited, reported in PLD 1959 S.C (Pak) 296, in which. It was held that the rules framed under statute cannot defeat clear intention of legislature expressed in statute, and if they are as such, they cannot be relied upon. The propositions of law propounded in the above cited cases are well settled. If a rule is in deviation of the main provision of statute, or it is in conflict or it defeats the object of the statute, the same cannot be relied upon and will be void on account of being repugnant to the main statute. However, the above cited cases have no relevancy to the instant case, as we have already held that para. 7 of the Notification is not applicable to the petitioner. Furthermore, there seems to be no infirmity in, the above para 7 as to press into service any of the principles enunciated in the above cited cases. 7. Reverting to the learned counsel for the petitioner's contention that the requirement of para. 7(iii) of the Notification has not been complied with, it may be observed that since the respondents Nos. 2 and 3 have not placed the requisite record before us in spite of the order of this Court, it cannot be concluded that factually, whether the requirements of the above para were complied with or not, though the respondent No. 2 in its counter-affidavit has averred of having done so. But since we have held that above para. 7 of the Notification is not applicable, it is not necessary to probe into the above aspect any further. 8. This leads us to the submission of the learned counsel for the petitioner that the action is mala fide. In furtherance of the above submission, he has referred to the factum that the petitioner was allowed to work on the basis of consent order dated 14th January, 1980 passed in Constitutional Petition No. 23 of 1980 (Hub No. 6 of 1980), but upon the dismissal of the above petition in default on 11th March, 1984 the petitioner's services were terminated allegedly in pursuance of the judgment of the High Court by an order, dated 15th March, 1984 which reads as follows:-- "THE BALUCHISTAN PROVINCIAL COOPERATIVE BANK LIMITED QUETTA Ref. BPCB 35/84/385, dated 15th March, 1984. ORDER In pursuance of High Court of Baluchistan's judgment, dated 11-3-1984 on his appeal and decision of the Administrative Committee taken on 14-3-1984 the services of Mr. Muhammad Iqbal Qureshi an Officer of the Recovery Cell of dissolved Banks are terminated with effect from 15-3-1984 (afternoon)., (Sd.) GENERAL MANAGER. 15-3-1984"
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It, has been also pointed out that in spite of the restoration of the above petition on 22nd April, 1984 the petitioner was not taken back in service. Though the above facts indicate that the conduct of the respondent No.2 was not desirable, but at the same time, the petitioner has not given material particulars as to the persons or the reason of there being malice or mala fide against the petitioner. It cannot, therefore, be concluded that the impugned action is mala fide in fact, though it may or may not be mala fide in law. 9. Having dealt with the submissions made by the learned counsel for the petitioner, it may be pertinent to take up some of the submissions advanced by the learned counsel for the respondents Nos. 2 and 3. It has been urged by Mr. Muqim Ansari that the dispute relates to operative Bank, therefore, the petitioner should have invoked section 54 of the Cooperative Societies Act, 1954, which reads as follows:-- ---54. Arbitration:-- If any dispute touching the business of a society other than a dispute regarding disciplinary action taken by the society or its committee against a paid servant of the society arises; (a) between members or past members of the society or persons claiming through a member or past member or (b) between members or past members or persons so claiming and any past or present officer agent or servant of the society, or (c) between the society or its committee, and any past or present member of the society, or (d) between the society or its committee, and any past or present officer, agent or servant of the society, or a surety of such officer agent or servant, whether such surety is or is not a member of the society, (e) between a financing bank authorised under subsection (1) of section 34 and a person who is not a member of a society, it shall be referred to the Registrar for decision by himself or his nominee, or if either of the parties so desire, to arbitration of three arbitrators who shall be the Registrar or his nominee and two persons of whom one shall be nominated by each of the parties concerned. A dispute shall include the question whether a person is or was a member of a society and also claims by a society for debts or demands due to it from a member, past member or non member or the heirs or assets or a past member or non-member whether such debts or demands be admitted 'or not: provided that if the question at issue between a society and a claimant, or between different claimants, is one involving complicated questions of law and fact, the Registrar may, if he thinks fit, suspend proceedings in the 'matter until the question has been tried by a regular suit instituted by one of the parties or by the society. If no such suit is instituted within six months of the Registrar's order suspending proceedings the Registrar shall take action as laid down in paragraph 1 of this section". A plain reading of the above section 54 indicates that if any dispute touches the business of a society is raised other than a dispute regarding disciplinary action taken by the society or its committee against a paid servant of the society, the same is referable to the Registrar for decision by himself or his nominee, or either of the parties so desire, to arbitration of three arbitrators. It may also be noted that clause (d) provides that any dispute touching the business of a society other than referred to hereinabove, between the society or 114 its committee and any past or present officer, agent or servant of the society, or a surety of such officer agent or servant, whether such surety is or is not a member of the society, is also referable to the Registrar in the above terms. The question, therefore is as to whether the alleged termination of the petitioner's services will be covered by above clause (d). Of…
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