2012 PLP (C (PLC(CS))

UMAR ATA BANDIAL, J.

By order of the Standing Sub Committee/Authority dated 15-7-2004 the petitioner was subjected to a major penalty of reduction of two stages in running pay scale. For some reason that order also forwarded the petitioner's case for confirmation of said penalty by the Board of Directors of the respondent bank. The Board of Directors decided to entrust the matter to the President of the Bank/Registrar Co-operative Societies. By his decision communicated on 16-10-2004 the President of the Bank in exercise of his powers delegated by the Board of Directors heard the petitioner and in the light of his past record enhanced the penalty to "reduction to lower post of officer". Thereafter the petitioner's appeal against the order dated 15-7-2004 pending before the Board of Directors was disposed of on 28-3-2005 without any proceedings. The petitioner also filed a review application before Administrator of the respondent bank against the orders dated 15-7-2004 and 16-10-2004, which was dismissed on 3-10-2005 for failure to bring any fresh material as defence.

2. Learned counsel for the respondent opposes the maintainability of this petition on the ground that the respondent bank is not a person performing duties under a law nor are terms and conditions of service of the petitioner governed by statutory rules. He relies on The Lahore Central Co-operative Bank Ltd. v. Pir Saif Ullah Shah (PLD 1959 Supreme Court (Pak.) 210), Zainul Abidin v. Multan Central Co-operative Bank Ltd, Multan (PLD 1966 Supreme Court 445) and Wazir Ali Khoja v. Muslim Commercial Bank Ltd. and others (1998 SCMR 1452).

3. On merits learned counsel for the respondent submits that the appellate authority has the same scope of powers and functions as the original authority. Consequently, it is competent to pass an order enhancing the penalty imposed by the Authority on a reappraisal of the record. No illegality is committed by the impugned order dated 16-10-2004.

4. The learned counsel for the petitioner has relied on the violation of rules regarding identity and composition of the appellate authority as a ground of challenge to the impugned order. He submits that the petitioner's appeal was disposed of without hearing because the President of the Bank/Registrar who is Chairman of the Board of Directors had heard the petitioner and enhanced the penalty. As a result the petitioner was deprived of his right of appeal before an independent forum. On the second point of competence of the President of the Bank to impose a higher penalty on the petitioner his learned counsel does not press his objection.

5. Learned counsel for the parties have been heard. The controversy revolves around the point whether the President of the bank in his decision dated 16-10-2004 merely pronounced his confirmation of the punishment as the competent authority or whether he decided the appeal filed by the petitioner. Learned counsel for the petitioner submits that the power to confirm the proposed punishment in the President of the bank conflicts with the appellate power being retained by him simultaneously. By definition, an appellate power is exercisable by an independent person with an independent mind. The respondent's contention that the confirmation rather than enhancement of penalty by the President of the bank operated as disposal of the petitioner's appeal simply because the petitioner was heard by him is not an adequate safeguard. The Hon'ble Supreme Court in Pakistan and others v. Public at large and others (PLD 1987 SC 304) and Mehram Ali and other v. F.O.P. and others (PLD 1998 SC1445) has opined that the appellate remedy must be an independent remedy. Such right flows from the fundamental right of access to justice that vests in a citizen. Consequently this Court is not inclined to treat the decision dated 16-10-2004 by the President as constituting a decision of the petitioner's appeal.

6. The respondent bank is subject to the control of the co-operative department of the provincial government. Also the petitioner's fundamental right has been breached in the instant case. Accordingly, this writ is maintainable. As a result the petitioner's appeal is deemed to be pending. The respondents Nos.2 to 4 shall cause the petitioner's appeal to be decided in accordance with the rules and regulations of the respondent bank.

7. Petition disposed of. S.A.K./G-3/L Petition accepted.