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Petitioner: Syed ZAHIR HASSAN RIZVI VS Respondent: AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN JUDGMENT
Court Name: Sindh High Court Judge(s): Abdul Hafeez Memon, Tufail Ali A. Rehman Title:Syed ZAHIR HASSAN RIZVI vs AGRICULTURAL DEVELOPMENT BANK OF PAKISTAN
JUDGMENT
Reported As: 1974 PLC 125 Result: Petition dismissed Judgment JUDGMENT TUFAIL ALI A. REHMAN, C. J. The petitioner in this case was appoint--ed as an investigator in the Agricultural Development Bank of Pakistan, which was set up by Ordinance IV of 1961, and which is the first respondent in this petition, on the 18th of October, 1961. In March 1963, he was arrested by the police on a charge of corruption and was suspended by the bank, but for some reason which' is not quite clear but which according to the petitioner was that no case of corruption was made out against him, he was put for trial not before a special Judge appointed under the Anti-Corruption, Laws but before a First Class Magistrate, Tando Allah Yar for an offence under section 420 Pakistan Penal Code. While this case was still pending the peti--tioner was re-instated by the Bank on the 15th of April 1966, and posted at the Hala Branch of the Bank. The case against him resulted in his discharge and nothing further seems to have happened until the 23rd August 1967, when the services of the petitioner were terminated by the 'bank by means of an order passed by the Chairman of the bank and upon a report of the Administrative Officer. Admittedly no enquiry was held and the charge-sheet was given nor any show-cause notice given to the petitioner. Before 'the order could be implemented the petitioner filed a Civil Suit bearing No. 1625 of 1967, in the Court of the 1st Civil Judge, Karachi, praying for a.' declaration that the order of termination of his services was illegal and asking also for a permanent injunction, restraining the bank from implementing the order. Some interim orders in favour of the petitioner were passed in. The suit but these were eventually vacated and upon their vacation, the bank passed the same order again purporting to be under rule 13(1) of the Agricultural Development Bank (Staff) Service Regulations, 1961 terminating the services of the petitioner with immediate effect on payment of one month's pay in
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lieu of notice. This order is dated the 9th of January 1968. This suit was eventually dismissed' on the 15th of May 1969, and it is an admitted position that the petitioner did not appeal against the decision of the Civil Judge which became final. Some representations were then made-by the petitioner to the respondent No. 1, the details of which I shall state presently, but these were either unsuccessful or met With no response and eventually on the 15th of March 1973, the present petition was instituted is which the petitioner prays that it be declared that the orders dated 23-8- 1967, and 9-1-1968, passed by the Respondent No. 1 and the order dated 15-6-1969, passed by respondent No. 2, he declared to be of no legal effect. Respondent No. 2, it might be lidded is the 1st Civil Judge who dismissed the suit. 2. Before I deal with the merits of this petition it is necessary to decide upon two questions which obviously and immediately arise, namely whether respondent No, 1 is such a person or local 'authority as can be proceeded against under Article 199 of the Constitution or its predecessor article namely Article 201 of the Interim Constitution of 1972, and secondly, whether there have been tot such laches on the part of the petitioner as to disentitle him to relief in any event. Indeed if either of these two questions is to be decided against the petitioner it would be unnecessary to examine any other point in' this case at all. 3. A fact, which would be material in consideration of both these questions, might here be questioned. By the judgment reported as Muhammad Ashraf Parvez v. The Agriculture Development Bank of Pakistan (PLD 1973 Lah. 425) a learned single Judge of that Court held that the, Bank is a public statutory corporation engaged in the performance of functions in connection with the affairs of the. Province and Centre and therefore amenable to the jurisdiction of the High Court under Article 98 of the Constitution of Pakistan, 1962. The present petition of course was filed under Article 201 of the Interim Constitution of Pakistan (1972) and whether we ought now to deal with it as a petition under Article 199 of the Constitution of 1973, or under the Interim Constitution makes no real difference inasmuch as the material language in both these instruments is the same as also was the language- under Article 98 of the, Constitution of Pakistan; 1962. The judgment of this case was not reported until the May issue of P L. D 1973, but the decision' itself was rendered in May 1972, and since it not only decided this question in a sense favourable to the petitioner but also some of the questions involved in this case do merits in the manner in which he now asks us to decide, the reason for filing this petition in 1973, after what is obviously a long lapse of time add since' the cause of grievance arose, is understandable. Indeed learned counsel for the petitioner not merely admitted this but relied upon it for the purpose of explaining the laches in the case. I shall in any case have to deal with this judgment both upon the question of the maintainability of the-petition against respondent No. 1 and also for the purpose of considering laches. 4. A large number of cases were cited to us upon the question namely whether respondent, No. I is such a person or authority as is amenable to the jurisdiction of this Court under Article 199 and I myself also have read all the relevant cases on the subject that I could discover but I do not think it is really necessary to refer to all of them. . I shall therefore refer to such of these as think decide the matter before us and in these cases. I think it would, be advisable to keep in mind .The difference between the question whether the respondent in each particular case was amenable to the jurisdiction of the Court and the question whether a petition by way of writ or under the various constitutional provisions which has been enforced from 1962 onwards was really the proper' remedy for a case of this kind where an employee of such a respond-at claimed that he had been wrongfully dismissed or that his services bad been wrongfully terminated. The two questions are no doubt distinct and have in fact been dealt with dis--tinctly in these cases but; of necessity, they arose in many of them at the same time and were considered together or at least in 'some relation to each other.
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5.. The first of these is the' University of Dacca v. Zakir Ahmad (RLD 1265 SC90) in this case the question involved on merits was the legality or the otherwise of the expulsion of a student by. The University Authorities and the question therefore whether a writ was a proper remedy, in case of removal from service did not arise and the only question dealt with which is material from my present point of view is the question whether the University of Dacca. Is such an authority or person as could be made a respondent in proceedings under Article 98 of the 1962 Constitution. Dealing with the -first contention raised on behalf of the appellant which their Lordships themselves worded thus:" "That the University is neither a person nor a local authority within the meaning of Article 98 of Constitution." The judgment went on to reject the argument by a statement of reasons, which very clearly lay down the test by which the question is to be judged. "The first point, though raised, had-not been seriously pressed for, the learned counsel has himself felt that it would be difficult to argue that the University was not a person performing in the Province of. East Pakistan functions in connection with the affairs of that Province A person has been defined in the General-Clauses Act as including any company or association or body-of individuals whether incorporated or pot", and the University of Dacca has been defined in subsection (1) of section 3 of the Dacca University Ordinance (No. XXIII of 1961) as follow: "3(1) The first Chancellor and Vice-Chancellor of the University and the first members of the Syndicate and the Academic council and a persons who may hereafter become such officers or members, so long as they continue to hold such office or membership, are hereby constituted a body corporate by the name of the University of Dacca." It is clear from this definition that the University is an association of persons who have been constituted by the statute into a body corporate and therefore, the University comes well within the definition of a "person" given in the General Clauses Act. Again under Article 242 of the Constitution of "person" is defined as including any "body politic or corporate". As such even under this definition the University comes within the category of a "person" under the Constitution. The next question that arises is whether it is performing any function in connection with the affairs of a province. The University has been set up, as stated in section 4 of the Dacca University Ordinance, to provide, inter alia, for instruction in various branches of learning and to make provision for research and for the advancement and dissemina--tion of knowledge, to affiliate and disaffiliate colleges, to prescribe courses of studies, to hold examinations and to grant and confer diplomas, degrees and other Academic distinctions. Its purpose, therefore, is to impart education at higher levels in the Divisions of Dacca and Chittagong and in the district of Bakerganj in the Khulna Division. It is clear, therefore, that it is performing functions within the province of East Pakistan, which are connected with one of the affairs of that province, namely, education. It is also patent from a perusal of the provisions of the Dacca University Ordinance that the Provincial Government has considerable power to control and regulate the activities of the University both directly through the Chancellor who is also the Governor of the Province. Thus under section 8 the Provincial Government has the right to cause an inspection to be made of the University, its buildings, laboratories and equipment and of any institution associated with the University as also the examination, teaching and other work conducted or done by the University and to issue through the Governor such directions to the University as it may think fit. Again, under section 11 the Governor as the ex officio Chancellor of the University may pass such orders as he considers necessary if he is satisfied that exceptional circumstances seriously interfering with the normal activities of the University exist. Such orders are binding on the University. In almost all matters an appeal lies from the decision of the University and the authorities of the University to the Governor as Chancellor of the University. Again, whenever a question arises as to whether any
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person is entitled to be a member of any authority or other body of the University, the matter has, under section 44 of the Ordinance, referred to the Chancellor whose decision is final. It is difficult, therefore, to resist the conclusion that the University is a person performing functions in connection with the affairs of the province, namely, education. Under section 42, furthermore, the annual accounts and balance-sheets of the university have to be submitted to the Provincial Government for the purposes of audit and the Government scrutinises the audit report, which must also be submitted to Government. The bulk of the Univer-- sity's revenue comes from Government grants and the Governor appoints its Vice-Chancellor. The control of the Government over the affairs of University is as complete as it can be. Thus the University is not only a "person" within the meaning of that term in the General Clauses Act and the constitution but it is also a "person" of the category referred to in Article 98 of the Constitution and, therefore, it is without any doubt amenable to the jurisdiction of the High Court under that Article." 6. It will be noticed that in coming to the conclusion that the University of Dacca was so amenable no regard was shown to the use of word "local authority ' occurring in the relevant Article of the Constitution and the whole stress was upon the meaning of the word "person", of course with the quali--fication "performing in connection with the affairs of the Province or the Federation." As I have understood the judgment of their Lordships they came to the conclusion that it was such a person because it had been set up for providing instructions in various branches of learning and similar matters which are functions within the Province and are connected with one of the affairs of the Province namely education. The question, therefore, whether Respondent No. 1 in the present case is an ordinary company under the Companies Act or a statutory corporation has seemed to me entirely beside the point for the mere fact that it is a statutory corporation will not make it amenable to the jurisdiction just as, if it was not such a body, it would not on that account be exempt from jurisdiction so long as it performed functions of the kind described. I therefore propose to take no further notice of the argument based upon the distinction between statutory corporations and other companies. 7. The next case that is of importance also came from the High- Court of East Pakistan and is, in another way, more nearly akin to the one at present before us: Deputy Managing Director, National Bank of Pakistan v. Attaul Haq (PLD 1965 S C201). The case involved the legality of an order of fresh election for filling a vacant seat on the Central Board of the Bank. In so far as the Constitution of the National Bank of Pakistan was concerned it was in many ways similar to the Constitution of the Respondent No. 1 in this case. Both were banks and each was set up under a special law as the body corporate and the consideration therefore, advanced by learned counsel for respondent No. 1, that a body the main purpose of which was commercial in character, ought never to be proceeded against under the writ jurisdiction of the High Court was clearly therefore excluded by the fact that their Lordships of the Supreme Court did not think that, upon that ground, the National Bank was immune from such jurisdiction. The main reasoning upon which the judgment is based can be gathered from toe following quotations: 'The conclusion that the National Bank of Pakistan is a "local authority" in East Pakistan is one with which speaking with respect we find it entirely impossible to agree. The expression "local authority" has been used in statutory phraseology in the Indian sub-continent for a great many years, and is always understood to mean an authority, which is entrusted with the administration of a local fund. Local authorities are bodies exercising within limited territories included in a province, powers which belong to the province, but which by statute are delegated to the local authority. A local authority is ordinarily charged with functions of self-Government, and has power of making bye- laws, of imposing taxation, and of maintaining and administering a local fund. In fact, it is evident from the order in which Article 98 mentions the three tiers of authorities that these are in a descending order of importance, first Le. The centre, being the most important authority being the
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last in that order. It is clearly impossible, in view of this clear distinc--tion to treat the centre as being a "local authority" at, which ever place in Pakistan, it conducts its affairs. The National Bank of Pakistan was set up by a central Ordinance in order to extend banking facilities generally and also to provide credit for agricultures and agricultural produce. It bears no resemblance to the recognised conception of a "local authority". 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. It is a body, which is constituted by section 3 of the Ordinance to be a "body corporate having perpetual succession" which may sue and shall be sued in the name of the National Bank of Pakistan. There seems no doubt whatsoever that after the Election Appeal Committee became functus officio through pronouncing its decisions in the two appeals, which had been referred to it, the record of its proceedings became records of the Bank and it is clear also that what was sought in substance in the present case was a writ of certiorari for the certification of the said record to that Court so that investigation might be made as to the propriety and regularity of the proceedings of the Committee with a view to determine whether the final decision being in the nature of a quasi judicial decision should be maintained. Such a writ could only issue to the National Bank of Pakistan at its head office in Karachi where also the records in question were held, and it seems clear from the wording of the relevant provision in Article 98 that as Karachi is outside the territorial jurisdiction of the High Court at Dacca, the writ sought could not have issued from that High Court. As has been observed already, it appears that the respondents to the petition for a writ were carefully selected and named in such a way as prima facie, to bring the action within the territorial jurisdiction of the High Court. As to the further reasons given by the High Court, the point that the election in question was for electing two Directors from among the Dacca registered share-- holders is not relevant, since relief was sought in respect of the record kept at Karachi, in the custody of the National Bank and what was at stake was a seat on the Central Board of that Bank, which sits at Karachi. The argument that a part of the enquiry was held at Dacca is equally insubstantial, for the Committee was an agency of the Central Organisation of the Bank and it seems quite clear that the discovery made by the Election Appeal Committee (we -do not express any opinion as to whether their conclusion was correct or not) regarding- the action of the representative of the East Pakistan Branch of the Pakistan Red Cross Society in casting the votes of the society for a person who had not been nominated for the purpose by the society itself was made at one or other of the later meeting held in Karachi, where the recount was taken. On these considerations, we are satisfied that the claim of jurisdiction in the High Court of East Pakistan to issue a writ to quash the order of the Election Appeal Committee is not soundly based and we accord--ingly allow this appeal and direct that the writ be recalled, but in the circumstances of the case, we leave the parties to bear their own costs." Although the judgment is instructive, and of course binding, it is not I think of conclusive help in the present matter inasmuch as it does seem that the main question that was being agitated was whether, territorially the High Court of Dacca could have issued the writ which it did and which the Supreme Court recalled. It might be noticed also that, although the argument that the bank was a local authority was repelled in no uncertain terms a part of passage which I have quoted at least lends support to the view that it was such a person, just as the University of Dacca was held to be such a person, as came within the constitutional jurisdiction; this passage I have underlined. 1n the last sentence of this underlined passage it seems to me that by a printing mistake word "not" has been omitted between the word "simply" and "sufficient". To put the matter at its minimum the judgment would seem to support the contention of the petitioner that the present respondent' No. 1 is a body to which an order under Article 199 of the Constitution can issue; whether it ought to issue
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in the matter of dismissal or termination of services of one of its employees is of course a different matter. 8. Before going on to discuss the other cases of the Supreme Court which are important it might be as well to mention two cases decided by the High Court at Lahore and Karachi respectively which were cited before us. The first of these is a case concerning the Pakistan International Airlines Corporation reported in PLD 1971 Lah. 748. Now this was not a case under the constitutional jurisdiction but arose by way of a revision under the Civil Procedure Code from the decision in an appeal against the dismissal of the suit. The question therefore of amenability to constitutional jurisdiction did not really arise but the question whether the employees of the corporation were entitled to the guarantees and safeguards provided to state servants under the Constitution of 1962 on the ground that the Pakistan International Airlines Corporation was a statutory body and amenable to various kinds of control by the Central Government, did and it was held that they were not so entitled. There were however in that case, as in the present case certain rules of service framed by the corporation and reliance was therefore placed before us on behalf of respondent No. 1 upon the observation at page 755: "They are not entitled to any guarantees and safeguards under the Constitution or any statute or the rules having the force of law. The relationship between the corporation and its employee is purely that of a master and servant under the general law." 9.---To much the same effect was another case also involving the Pakistan International Airlines Corporation reported as Shahid Khalil v. The P. 1. A. Corporation Writ Petition No. 403 of 1963 and to this case the Lahore judgment refers as it refers also to the fact that a petition for special leave to the Supreme Court failed, that Court observing: "The Corporation is a statutory body created by an Act, and although it is rendered amenable to the exercise of various controls by the Central Government nevertheless it is not a branch of that Government, and as an employer, it is quite distinct from Central Government." (Incidentally the judgment of the Supreme Court is now reported in 1971 C M R 568). 10. The next case of importance I think is that of the Lahore Central Cooperative Bank Limited v. Sarfullah Shah (PLD 1959 SC (Pak.) 210) which was a case of the termination of services of an employee of the Lahore Central Co-operative Bank Limited J. The High Court had held in favour of the dismissed employee and in the words of the Supreme Court itself. "The catalogue of reasons why no writ of any kind could have issued in this case is a formidable one" and to one of these reasons I shall presently return. But the one, which suffices for my present purpose can be gathered from the following quotation: "Regarded as an employee in the relevant respect, the respondent would seem to fall under Bye- law 23(18), which gives the committee power "to appoint, dismiss, suspend or otherwise punish salaried or unsalaried employees of the bank and to frame rules on matters concerning the establishment". The resolution of the 3rd February 1945 to which reference has been made earlier was not passed in the form of the rule, and it is therefore very doubtful whether it can be thought that thereby compliance was made with Bye-law No. 23(18). Consequently, we consider that it is a point of considerable doubt whether the respondent could claim the application to himself of the Civil Service Rules. In any case, these Rules were not applicable to him of their own force, but merely by reference, where these Rules embody safeguards provided for public servants under the then Constitution I.e. The Government of India Act, 1935, as then in force, they cannot be availed of by such a person as Pir Saif Ullah Shah, as a matter of legal right." Now it is true that the applicability of the rules themselves was being doubted by their Lordships but it seems clear that, even upon the assumption that they were applicable, it was held that a writ could not issue.
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11. In the case again of the Chairman, East Pakistan Development Corporation v. Rustam Ali (PLD 1966 SC 848) a case, which has considerable resemblance to the present, it was held that a writ ought not to issue. There as here the respondent was a bank set up under a statute and therefore a statutory corporation. Agreeing with the judgment of the Dacca High Court the Supreme Court said that it was nevertheless "a person" within the meaning of the University of Dacca case but went on to hold, referring to the case of Pir Saifullah Shah to which I have just…
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