1979 PLP 461 (SCMR)

Iftikhar Ali Shaikh, Advocate Supreme Court and Mahmood A. Qureshi, Advocate‑ on‑Record for Petitioner. Nemo for Respondents. Date of hearing : 21st February, 1979. NASIM HASAN SHAH, J.‑This is a petition for leave to appeal against the order dated 21‑6‑1978 dismissing the petitioner's Inter Court Appeal No. 115 of 1978. The petitioner's Writ Petition No. 3121 of 1978 had earlier been rejected by a learned Single Judge of the Lahore High Court. The petitioner is allegedly involved in the embezzlement of Rs. 5,04,758.65 while Branch Manager of the Shakargarh Branch of the Punjab Provincial Co‑operative Bank Limited, Sialkot; he is no longer in employment. Investigations were also carried out by the police on the basis of the F. I. R. lodged by .the Department but it is stated that the petitioner has not so far been challaned. In the meantime, the Department with a view ostensibly for the recovery of the embezzled amount started proceedings under the Co‑operative Societies Act, 1925. On 24‑4‑1978, the respondent No. 1 issued an order in the nature of a reference under section 54 of the said Act and appointed respondent No. 2 as the nominee of the Registrar to decide the matter. By a subsequent notice dated 14‑5‑1978, the petitioner was called upon. to nominate his arbitrator. The petitioner took an objection to these proceedings under section 54 of the Act by an application to respondent No. 2 inter alia on the ground that the dispute was not such upon which a reference could be made under the said section. Before the disposal of this application, the petitioner filed a Writ Petition before the High Court on the already stated ground as also on the footing that the proceedings against him had been started out of malice and as police investi gation into the embezzlement was in progress, the proceedings undertaken by the Department against him, were not proper. A learned Single Judge of the High Court held that the dispute raised under section 54 was one) touching the business of the Society because it was between the Society and its past officer, namely, the petitioner who was Branch Manager of the Societies Bank and was covered by section

54. The other two contentions were also rejected. One on the ground that there was a civil liability as well and the Department could competently recover the embezzled' amount by these proceedings. The other, on the ground that there was no specific allegation against the officer who had ordered the reference to be made even otherwise there was no material to establish mala fide. A Division Bench hearing the appeal upheld the order of the learned Single Judge in spirit but thought it more appropriate to leave the question whether the dispute was covered by section 54 to be determined in proceedings under, that section. When this petition for leave to appeal was filed, one of us (Nasim Hasan Shah, J.) while hearing the stay matter, directed that the application, stated by the petitioner to have been filed and which was still pending challenging the jurisdiction of the Registrar, should be disposed of. Now, at the time of bearing, we are informed by the petitioner that this application has since been disposed of and his objection overruled. But it is submitted on his behalf that the assumption of jurisdiction is nevertheless erroneous. On the observations other than on the finding on the point of jurisdiction, recorded by the learned Single Judge and the Division Bench of the Lahore High Court, we do not feel inclined to differ. On the question of jurisdiction, we would like to add that whether the dispute is one relating to the business of the Society is a question which the law itself intend,; that the authority assuming jurisdiction must determine in the first instance and this can, sometimes, be a mixed question of law and fact. We feel that in the proceedings against the petitioner, it shall be open to the petitioner to once again raise before the authority itself the question whether his case is covered under section 54 and jurisdiction be assumed in the matter. But this petition otherwise fails and is dismissed. Petition dismissed.