Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Syed AKBAR ALI BOKHARI VS Respondent: STATE BANK OF PAKISTAN AND 7 OTHERS
Court Name: Lahore High Court Judge(s): Karam Elahi Chauhan Title: Syed AKBAR ALI BOKHARI vs STATE BANK OF PAKISTAN AND 7 OTHERS Case No.: Writ Petition No, 1378-S of 1971 Date of Judgment:1976-05-31 Reported As: PLD 1977 Lahore 234 Result: Petition dismissed
JUDGMENT
JUDGMENT ' The petitioner was an employee of the State Bank of Pakistan and at the relevant time was holding the post of an Assistant Treasurer. On 29-10-1969 he was issued a charge-sheet in terms of Regulation 22 of State Bank of Pakistan (Staff) Regulations, which reads as follows:- "STATE BANK OF PAKISTAN POST BOX NO. 40, LAHORE ESTABLISHMENT DEPARTMENT ' Ref. No, Staff P. F. 69/18539 29th October, 1969. ' Mr. S. Akbar All Bokhari, Assistant Treasurer, ' State Bank of Pakistan, Lahore. CHARGE-SHEET ' The following charges have been framed against Mr. S. Akbar All Bokhari, Assistant Treasu-er, State Bank of Pakistan, Lahore in terms of Regulation 21 of State Bank of Pakistan (Staff) Regulations:- (I) That according to Section XI of the Revised Procedure for Sale and Encashment of National Prize Bonds every alteration in the list PB-35 has to be authenticated by the Listers, Checkers and Assistant Treasurers by putting their initials there against. In violation of the above instructions Mr. Bokhari, Assistant Treasurer has made nine alterations (as per list) attached himself in the list (PB- 35) relating to 19th and 20th Draws which fact has also been admitted by him. These alterations do not bear the initials of the Listers and Checkers. He has thus committed a serious breach of Office Procedure/Directions.
---
## Page 2
(N) That Mr. Bokhari Assistant Treasurer substituted other numbers of Prize Bonds in places of the numbers of Prize Winning Bonds already entered in PB-35 with a view to abstracting and did abstract the latter Bonds, and successfully claimed prizes in collusion with Mr. Muhammad Saeed, Assistant Treasurer of Quetta Office, thereby unlawfully depriving the Bank of the lawful custody of the prize winning Bonds in question as well as the prize money which was to be credited to the Government account. Thus he is guilty of gross misconduct as well as of knowingly acting in a manner highly detrimental to the interest of the Bank. 2. He is, therefore, called upon to answer the above charges in writing or in person in which case his defence will be taken down in writing and read out to him. Any defence which he may wish to proffer including the list of witnesses he may wish to produce, should be submitted to Mr B. H. Agha, Deputy Chief Officer, Banking Control Department, Lahore, who has been nominated as Enquiry Officer, not later than the 11th November, 1969. If he does not submit his reply within the stipulated period, ex parte proceedings will be taken against him. (Sd.) I. A. Faruqi, Manager." 2. The petitioner sumbitted his reply denying the charges. After some enquiry the enquiry officer compiled his report which was put up to Mr. Fiazul Haque, Manager, State Bank of Pakistan, Lahore, on 26-5-1970. The Manager called the petitioner on 25-1-1971 and put certain questions to him by way of further elucidation of certain matters. The proceedings of that date as contained in Annex: 'R/7' are as follows:- "After having studied the case thoroughly and before giving the decision in the case, the Manager called in his chamber Mr. Akbar All Bokhari, Assistant Treasurer in the presence of Mr. Riazul Hag Qureshi Account Officer (Prize Bonds Section), Mr. Sanaullah Qamar, Accountant (Cash) Mr. Muhammad Siddique, ex-Accountant (Cash), Mr. B. H. Agha, Enquiry Officer and Mr. Said-ud-Din, retired Currency Officer to produce any documentary evidence and/or witnesses in support of his defence made out by him in his explanation etc. Mr. Bokhari was asked the following questions and his answers thereto are recorded there-against:- Q. No, I.-Whether Mr. Bokhari could produce any witness in support of his assertion that the then Deputy Manager, Mr. Ansari absolved him (officially or even unofficially) from the charge in his preliminary findings of the case concurrently admitting Mr. Bokhari as the informer of the fraud committed in prize Bonds balances. Ans.-Mr. Bokhari showed his inability to produce any witness. Q. No, 11.-Whether he could produce any witness to establish the fact that the mistakes in PB-35 leading to the fraud, as soon as the same came to his notice, were reported by him to any higher authority either in writing or in person or could he produce any person who might have happened to see such a report (if any) initiated by him in the shape of noting or entering the fact in an irregularity register. Ans.-No, Q. No, 111.- Whether he could bring in any evidence to establish his plea that the cuttings/alterations etc. In PB-35 were authenticated by him under his hand on being asked by Mr. Abbasi the then Accountant, Prize Bonds Section, and whether he could prove that he resisted to such asking of Mr. Abbasi or even brought this fact to the notice of any higher authority. Ans.-No, ' The undersigned observed that Mr. Bokhari could not bring in any of the evidences asked for. Nevertheless he produced a noting of Cash Department which bore the orders of the then Currency Officer to incorporate some of the irregularities found in PB-35 in the prescribed irregularity register, but the noting in question was of a date far subsequent to the perpetration of the fraud in question and as such it had no bearing on the same. The noting referred to above being the office record was however, retained by the Manager." ' Thereafter the Manager on 30-1-1971, passed an order dismissing the petitioner from service, a formal communication whereof, in the form of Annexure 'C' (which was described as Staff Order No, 60) was sent to him on 1-2-1971. The petitioner on 19-2-1971, filed an appeal (Annexure `E') but
---
## Page 3
without any success as the same was dismissed by the Deputy Governor, State Bank of Pakistan, on 5-10-1971. The petitioner has come up in writ petition, under Article 199 of the Constitution, against the aforesaid proceedings and orders to this Court. Re: Preliminary objections 3. Raja Muhammad Anwar learned counsel for the respondents raised three preliminary objections. He referred to Article 199 of 1973 Constitution .And submitted that thereunder declarations could be made, orders and injunctions mandatory or prohibitive could be issued to a "person" or a "local authority" but as the State Bank of Pakistan was neither a "person" nor a "local authority" within the meanings of these words as used in the said Article, therefore, this Court had no jurisdiction to issue any orders of the kind contemplated in sub-Article (1) clauses (a) (i) and (a) (ii) against it. No doubt State Bank of Pakistan is not a "local authority", but the other part of the argument that it is not a "person" is not correct and the contention in that respect has no merit. Sub-Article (5) of this Article is quite clear on the subject, inasmuch as, it states that "in this Article unless context otherwise requires, "person" includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government and any Court or Tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the Armed Forces of Pakistan." In Article 260 of the Constitution also it is laid down "person" includes any body politic or corporate". All this should be read with section 3 of the State Bank of Pakistan Act (XXXIII of 1956) which clearly lays down that "(1) as soon as may be after the commencement of this Act, steps shall be taken to establish in accordance with the provisions of this Act, a bank to be called the State Bank of Pakistan or Bank-e-Daulat-e-Pakistan, for the purposes of taking over, as from the first day of July, 1948, the management of the currency from the Reserve Bank of India, and carrying on the business of Central Banking. (2) the Bank shall be a body corporate by the name of the State Bank of Pakistan or Bank-e-Daulat-e-Pakistan, having perpetual succession and a .Common seal and shall by the said name sue and be sued." This will show that the State Bank of Pakistan is a legal/juristic person, having a regular name, common seal and is capable of suing or being sued in its own name. It is thus a "body corporate" and "person" within the contemplation of clause (5) of Article 199 of the Constitution, and any plea to the contrary which is against the text herein before mentioned cannot be accepted and is hereby repelled, especially when even on general principles as explained in Wharton's Law Lexicon (Fourteenth 1949 Edition), page 262, column 2, "corporation is an artificial person established for preserving in perpetual succession certain rights which being conferred on natural persons only would fail in process of time, inasmuch as, the law knows only the body corporate and not the individuals constituting it. I had an occassion to deal with the status, kinds, positions and characteristics of corporations in general in W. P. No, 661-A of 1971 titled Lt.-Col. J. D. Malik (Retd.) v. Government of the Punjab and another (1) and maintained in Government of Punjab and another v. Lt.-Col. J. D. Malik (Rtd.) (2) and I need not reiterate that subject here over again as what has been written above is quite sufficient for the point under consideration in this case. 4. Learned counsel for the respondents then argued that even if the State Bank of Pakistan was a "person" it was not a person "performing functions in connection with the affairs of the Federation" within the meanings of sub-clauses (1) and (ii) of clause (a) of sub-Article (1) of Article 199 and from that point of view this Court could not give declarations about (1) P L R 1975 Lab. 400 (2) PLD 1974 SC 241 its orders or proceedings or issue any kind of directions to it. This brings me to the question as to what are the affairs of the Federation. In Article 97 of the Constitution, as far as relevant for the present case, it is laid down that, "subject to the Constitution, the executive authority of the Federation shall extend to the matters with respect to which Parliament has power to make laws, including exercise of rights authority and jurisdiction in and in relation to areas outside Pakistan. ".
---
## Page 4
This is to be read with Article 142 of the Constitution, where it is written that subject to the Constitution (a) Parliament shall have exclusive power to make laws with respect to any matter in the Federal Legislative List: (b) Parliament, and a Provncial Assembly also, shall have power to make laws with respect to any matter in the Concurrent Legislative List; (c) a Provincial Assembly shall, and Praliament shall not, have power to make laws with respect to any matter not enumerated in either the Fedeal Legislative List or the Concurrent Legislative List; and (d) Parliament shall have exclusive power to make laws with respect to matters not enumerated in either of the Lists for such areas in the Federation as are not included in any Province". The other relevant provision which extends scope of Federal Legislature is Article 144. The procedure for enactment of laws is contained in Articles 70 to 89 with which we are not concerned in this case. The lists containing items falling within the spheres of Federal and Provincial Legislature are contained in Fourth Schedule of the constitution. In the Federal Legislative List, item 8 is, "currency, coinage and legal tender". Item 9 is "foreign exchange, cheques, bills of exchange, promissory notes and other like instruments". Item 10 is, "public debt of the Federation, including the borrowing of money on the security of the Federal Consolidated Fund; foreign loans and foreign aids". Item 28 is "State Bank of Pakistan; banking, that is to say, the conduct of banking business by corporations other than corporations owned or controlled by a Province and carrying on business only within that Province". Item 31 is, "corporations, that is to say, the incorporation, regulation and winding-up of trading corporations, including banking, insurance and financial corporations, but not including corporations owned or controlled by a Province and carrying on business only within that province, or cooperative societies and of corporations, whether trading or not, with objects not confined to a Province, but not including universities". Item 58 is "matters which under the Constitution are within the legislative competence of Parliament or relate to the Federation; and item 59 relates to "matters incidental or ancillary to any matter enumerated in this part". After having seen the scope and extent of the executive and legislative authority of the Federation and the Federal Legislature, respectively, stage is now ripe to attend to the provisions of State Bank of Pakistan Act. Section 3 of the Act has already been quoted, which makes State Bank of Pakistan as a body corporate. Section 4 states that the Central Government shall not have less than 51 % of shares in this Bank. Its capital can be changed with the approval of the Central Government. Business and functions of the Bank are contained in Chapter IV of the Act which consists of section 17 to section 40. It has a complete monopoly of issue of the paper currency and is under an obligation to convert different forms of currency into notes of smaller denominations or coins. It controls the credit system of the country by purchase and sale of security and sterling to maintain the standing exchange rate as well as to maintain internal rate of interest. It acts as agent to the Central Government in various types of transactions, makes and issues bank notes which are legal tenders and float as currency everywhere and are guaranteed by the Central Government, It has two departments namely issue department and banking department. The functions of the issue department are such functions which actually are affairs and functions of the State but are being performed by the Bank. The functions of the Bank are co-related to various affairs of the State indicated in numerous items of the Federal List mentioned above. If the functions performed by the Bank are studied with reference to various items of the Federal List no room is left for doubt that the Bank is a person performing functions in connection with the affairs of the Federation and in certain cases of the Provinces. The objection of want of jurisditcion raised by Raja Muhammad Anwar Advocate on the ground that the State Bank of Pakistan was not a "person" performing functions in connection with the affairs of the Federation within the contemplation of Article 199 of the Constitution has thus no merit. Reference at this place may be made to The Chairman, East Pakistan Industrial Development Corporation, Dacca and another v. Rustom Ali and another (1) which was a case of a corporate person known as the East Pakistan
---
## Page 5
Industrial Development Corporation (E. P. I. D. C.) created under Ordinance XXXVII of 1962 and in which it was held that E. P. I. D. C. Was a person within the meaning of clause (2) of Article 98 of 1962 Constitution which corresponds to Article 199 (1) (a) (1) and (a) (ii) of the present Constitution. In clause (2) of Article 98 the person referred to was a person performing functions in connection with the affairs of Centre. The Supreme Court for the proposition aforesaid referred to its previous decision in The University of Dacca through its Vice-Chancellor and another v. Zakir Ahmed (2) where at pages 96-97 the matter had been discussed in detail and the writ issued by the Dacca High Court, declaring expulsion of a student from the University as to be without lawful authority, was maintained. In The Deputy Managing Director National Bank of Pakistan etc. v. Ataul Huq (3) the National Bank of Pakistan was held to be a body corporate and at page 206 it was observed that "the further facts that the Ordinance gives power to the Central Government to appoint the Managing Director and a number of Directors to appoint the Auditors, as well as the President of the Central Board, are simply sufficient to show that the National Bank of Pakistan is a body entrusted with the conduct of certain affairs appertaining to the Centre". At page 207 the point that a writ of certiorari could issue to it was conceded and it was held on the narticular facts of that case that as the head office of the Bank was in Karachi and the record of the case was also there, therefore, "such a writ could only issue to the National Bank of Pakistan at its head office in Karachi". In the face of the clear text explained above and the precedents of high value the preliminary objection of Raja Muhammad Anwar in this respect has to be repelled, which I hereby do holding that the State Bank of Pakistan is a person within the meaning of Article 199 (1) (a) (i) (a) (ii) and a writ of can competently be issued by a High Court in appropriate cases. For the sake of precedent Syed Abul A'ala Maududi v. The State Bank of Pakistan and another (4) (Muhammad Akram and Muhammad Gul, JJ.) may be referred to where writ was issued to the State Bank of Pakistan. 5. The third preliminary objection raised by Raja Muhammad Anwar was that the petitioner was not holding a "public office" as this term is defined in R. T. H. Janjua v. National Shipping Corporation (5) and as his service was regulated by the law of master and servant, therefore, relief in writ jurisdiction could not be given to him and he should be left to pursue, (1) PLD 1966 SC 848 (2) PLD 1965 SC 90 (3) PLD 1965 SC 201 (4) PLD 1969 Lah. 908 (5) PLD 1974 SC 146 his remedy, if any, and whatever it was, for breach of contract, in a Civil Court of competent jurisdiction. Leaving the question of "public office" apart for the time being, the plea of master and servant has no force on the peculiar facts and circumstances of the present case to be presently noticed. For relationship of master and servant as I understand it, there should be a freedom of contract both for master as well as the servant so as to act freely unfettered by any legal disability, but if for instance the servant is not free to leave service due to certain law intervening, or conversely if master's D pleasure to terminate service of his employee is similarly curtailed then the ease is no longer of a contract of service or of simple master and servant concept. This point was taken note of in Muhammad Salimullah v. Trustees of the Port of Karachi and 2 others (1) where Dorab Patel, J., who wrote the judgment for the bench, attended to the various precedents including cases of the Supreme Court and held that if freedom of contract or the freedom to act under a contract did not exist then it was not a case of the concept of master and servant as generally understood in this respect. The discussion starts from page 764 (paras. 10 and 11) of the judgment which shows that the petitioner concerned in that case was an employee of a local authority who was aggrieved of his allegedly wrongful dismissal, and objection of Mr. Fazeel counsel for the employer/local authority was that "as the cause of action related to a contract of employment, the petition was not maintainable, because the petitioner's rights were governed exclusively by the law of master and servant" and even if the petitioner had been illegally
---
## Page 6
dismissed his only remedy was to file a suit for damages. While dealing with this plea, in para. 11 of the judgment a question was then posed "thirdly, the law of master and servant is based on the principle of freedom of contract, but is that freedom of contract availab:e in instant case? It is not disputed that the petitioner was employed by the K. P. T. But the K. P. T. Was not competent to retire him without the Central Government's approval, because of section 24 of the K. P. T. Act, and because of this provision, the K. P. T. Would not have been able even to accept the petitioner's resignation, if he had wished to resign, without the Central Government's approval. Can it be said, in these circumstances that the rights of the parties are governed exclusively by the law of master and servant"? After making a detailed survey of the legal position and the case law on the subject it was held that as there was no freedom of contract in the matters posed in the questions aforesaid it was not a case to be regulated by the theory of master and servant. The position in the instant case is not dissimilar. Here also at the relevant time the services of the petitioner, and as a matter of fact, all employees of the State Bank had been declared to be "essential service" under the provisions of section 3 of the Pakistan Essential Services (Matintenance) Act Lill of 1952. The State Bank of Pakistan representative brought the file and showed that such notification was in operation during the period relevant in this case and submitted that such notifications had actually remained in force from 1965 to 1975 whereunder the bank service was an essential service. As this factual aspect of essential service is not disputed, I need not dilate further on it. When a service is declared as an essential service then the rigours of section 5 of that Act at once get attracted. The said section reads as follows:- "5. (1) Any person engaged in any employment or class of employment to which this Act applies who- (a) disobeys any lawful order given in the course of such employment, (1) PLD 1975 Kar. 758 or attempts to persuade any person to disobey any such order or refuses to work or continue to work, whether or not acting in combination with, or under a common understanding of, any other person engaged in such employment, or (b) without reasonable excuse abandons such employment or absents himself from work, or (c)departs from any area specified in an order under subsection (1) of section 4 without the consent of the authority making that order, and any employer of a person engaged in an employment or class of employment declared under section 3 to be an employment or class of employment to which this Act applies, who without reasonable excuse- (0 discontinues the employment of such person, or (ii) by closing an establishment in which such person is engaged, causes the discontinuance of his employment, is guilty of an offence under this Act. ' Explanation 1.-The fact that a person apprehends that by continuing in his employment he will be exposed to increased physical danger is not a reasonable excuse within the meaning of clause (b). ' Explanation 2.-A person abandons his employment within the meaning of clause (b) who, notwithstanding that it is an express or implied term of his contract of employment that he may terminate his employment on giving notice to his employer of his intention to do so, so terminates his employment without the previous consent of his employer. (2) Whoever instigates or incites any person engaged in any employment or class of employment to which this Act applies to commit an offence under this Act, or knowingly expends or supplies any money or otherwise acts in furtherance of the commission of such an offence, shall be deemed to have committed that offence." ' The aforesaid provisions of law will show that after declaration of the service of the State Bank as an essential service both master and servant were no longer free to act under the theory of master and servant and Explanation 2 disabled the employee to enforce the contract. Rather after that
---
## Page 7
declaration even questions of wages and conditions of services of State Bank employees no longer remained under the exclusive control of the corporate body, namely, the Bank. Section 6 of the Act LIII of 1952 states that "(I) The Central Government may make rules regulating or empowering a specified authority to regulate the wages and other conditions of service of persons or of any class of persons engaged in any employment or class of employment declared under section 3 to be an employment or class of employment to which this Act applies. (2) When any such rules have been made or when any directions regulating wages or conditions of service have been given by an authority empowered by such rules to give them, any person failing to comply therewith is guilty of an offence under this Act". In section 7-A it is laid down that "the provisions of this Act shall have effect, notwithstanding to the contrary contained in the Trade Unions Act, XVI of 1926 or the Industrial Disputes Ordinance LVI of 1959 or any other law". In the face of the above explained position of the service of the State Bank to call it still a service which was being regulated by the law of master and servant simpliciter is not correct and the plea of Raja Muhammad Anwar in this regard cannot be endorsed. In Gould v. Stuart (1) it was…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.