2023 PLP (C (PLC(CS))

MUSARRAT HILALI, J.

The instant writ petition has been filed by the petitioner under Article 199 of the Islamic Republic of Pakistan, 1973, wherein he has prayed for issuance of an appropriate writ declaring the order of his termination dated 17.5.2013 and the order dated 9.9.2013 as illegal, unlawful, without lawful authority and against the principles of natural justice, thus ineffective upon the rights of petitioner and is liable to be struck down, with further prayer that the petitioner be held entitled to the grant of back wages and benefits.

2. Brief facts, as per averments of the writ petition, are that the petitioner being posted as Grade-II Officer in the Bank of Punjab, Mardan Branch, along with his other colleagues/officers formed an Association with the name and style of "Bank of Punjab Officers Association" and applied before the Registrar, NIRC, Islamabad for its registration and in this regard, the respondents/management of the Bank were also intimated through registered post. During the pendency of the application before the Registrar, NIRC, the respondent-Bank after issuing show-cause notice to the petitioner, terminated his and his other colleague's services. The petitioner submitted representation before the respondent No.3 which was turned down on 9.9.2013. It has further been averred in the writ petition that a Writ Petition No. 3914/13 was earlier filed before the Islamabad High Court which was dismissed on the ground of lacking territorial jurisdiction and, therefore, the petitioner has now filed the instant petition.

3. Learned counsel for the petitioner raised various grounds inter alia and contended that the respondents have without any reason chosen to abruptly terminate the petitioner's appointment which is not only against all canons of justice but also the same is violative of Article 17 of the Constitution of Islamic Republic of Pakistan. That there has been violation of principle of natural justice and that the termination is stigmatic and has been passed without holding a proper inquiry and without affording an opportunity of being heard. That the major penalty of termination from service has been imposed which is illegal, unlawful and liable to be set aside. That the treatment meted out by the petitioner is discriminatory and is violative of Article 25 of the Constitution. In support of his arguments, learned counsel placed reliance on PLD 1975 SC 244, AIR 1989 SC 1607, AIR 2004 SC 3264, 2010 SCMR 253 and 2013 SCMR 1707.

4. On the other hand, learned counsel for the respondents while rebutting the arguments of learned counsel for the petitioner on merits, also challenged the very maintainability of the instant writ petition and submitted that the rules of respondent-Bank are non-statutory, therefore, the relationship between the petitioner and the respondent-Bank is governed by the principle of master and servant and, therefore, the proper remedy available with the petitioner is suit for damages and not reinstatement. Learned counsel further argued that even if it is presumed that the rules are statutory, then in that eventuality, the petitioner shall approach the Federal Service Tribunal for redressal of his grievances. He said that the writ petition is hit by laches as the initial petition was filed before the Hon'ble Islamabad High Court after 3 months of the impugned order. Learned counsel was of the view that this Court lacks the territorial jurisdiction as well. Reliance was placed on 2017 SCMR 571, PLD 1999 SC 1106, 2003 PLC (C.S.) 963 and PLD 2010 SC 1484. Arguments heard and record perused.

5. Since a preliminary objection was raised by learned counsel for the respondents on the maintainability of this writ petition, therefore, we would first deal with the questions raised and then would proceed further to examine other points.

6. The Bank of Punjab owe its existence through a statute. The respondent-Bank has been established under the proviso of Bank of Punjab Act, 1989. Section 9 of the said Act provides for the constitution of the Board of Directors for general superintendence in direction of affairs and business of the bank. Similarly, section 25 of the Act provides that the board may make bye laws not inconsistent with the Act to provide for all matters for which provision is necessary or convenient for the purpose of giving effect to the provisions of the Act ibid. It was contended by learned counsel for respondents that such rules were not framed with the previous approval of the Provincial Government, therefore, does not have the statutory character. The arguments of learned counsel for the respondents is based on hypothesis. As mentioned earlier, the respondent bank is a statutory body and derives powers of making rules from section 25 of the Bank of Punjab Act, 1989. The condition of previous approval of the government has been deleted by the Ordinance LVII of 2002, whereafter the rules framed under section 25 of the Act ibid did not require the previous approval of the government and as such, the rules framed partake the character like subordinate legislation. Reference can be made to the case titled "Shafiq Ahmad Khan and others v. NESCOM and others" reported in PLD 2016 SC

377. We also express our concurrence with the conclusion arrived at by Hon'ble Lahore High Court in case titled "Muhammad Aslam v. The Bank of Punjab and others (I.C.A. No. 263/2014)" decided on 28.04.2016.

7. In addition to the above, as has been mentioned in para-1 of the writ petition (not denied by the respondents) that under section 7 of the Act, the Government of Punjab is holding 51% shares out of 100% shares and according to section 11 of the Act, the Government of Punjab appoints the President of the Bank and as such, the Bank falls under the definition of a person as per the provisions of Article 199 sub-Article (1) (a) of Constitution of Islamic Republic of Pakistan, 1973 and as such is amenable to the writ jurisdiction of this Court.

8. We thus come to consider the second question raised by learned counsel for respondents with regard to laches. It was contended by the learned counsel that the initial writ filed by the petitioner before Hon'ble Islamabad High Court was hit by laches as the impugned order was made on 17.5.2013 while the writ was filed against the said order before the Hon'ble Islamabad High Court on 10.10.2013 which was dismissed by the Hon'ble Islamabad High Court on 26.1.2015 on the question of territorial jurisdiction. It may not be out of place to mention here that the petitioner after his termination filed a departmental appeal which was dismissed, whereafter the petitioner approached the Hon'ble Islamabad High Court for the redressal of his grievances, therefore, we are of the view that the delay in approaching the Hon'ble Islamabad High Court has satisfactorily been explained and the objection raised by the learned counsel with regard to laches is overruled.

9. As far as the territorial jurisdiction of this Court is concerned, the petitioner is permanent resident of Mardan while respondent No.4 is also based at Mardan, therefore, under the provision of Civil Procedure Code, this Court has the jurisdiction to entertain the instant writ petition. Even otherwise, petitioner has not asked for enforcing any right under statutory/non-statutory Rules, rather has asked for enforcement of fundamental rights secured and guaranteed under the Constitution of Islamic Republic of Pakistan, 1973.

10. Having dealt with the preliminary objections, we now turn our attention to the merits of the matter. The petitioner's service has come to be terminated on the ground that his conduct was found to be unacceptable as he fraudulently along with others misrepresented to the management and to the other executives/officers about the registration of officers association and urged other executives/officers of the bank to deposit admission fee and monthly subscription. It has been further alleged by learned counsel for the respondents that the stated officers association was not registered by any forum and that the email stating otherwise was fraudulent.

11. The term "Misconduct" implies a wrongful intention, a forbidden act. The documents annexed with the writ petition shows that Bank of Punjab Officers Association is a registered body vide NIRC office order #3 (13)/2013 and while its registration was in process and the respondents/management of the bank were also intimated through registered post, show-cause notice was issued to the petitioner and thereafter he was hurriedly terminated from his service without there being any inquiry and no opportunity of personal hearing was provided to the petitioner. We are of the view that the order of termination suffers from patent perversity in that even if the allegation made against the petitioner are taken as proved, the same does not amount to misconduct so much so to attract the penalty of termination imposed upon him as the right to form an association is protected under Article 17 of the Constitution of Islamic Republic of Pakistan, 1973. Once the respondent after complying with the codal formalities appointed the petitioner, then it cannot take a summersault and terminate the petitioner on trifling grounds. The judgments referred to by learned counsel for respondents during arguments had no nexus with the facts of the present case, therefore, cannot be relied upon. The termination order dated 17.5.2013 is violation of the principle of natural justice and cannot sustain. In the circumstances, this writ petition is allowed, as prayed for. MH/227/P Petition allowed.