1980 PLP 998 (SCMR)

G. SAFDAR SHAH, J‑This petition arises in the following circum stances: ‑ The petitioner was appointed as Manager of the Lahore Central Cooperative Bank Limited. Since the nature of the business of the Bank was to advance loans against gold deposits, it had engaged Ilahi Bakhsh, Saraf of Lahore for the purpose of evaluating the quality, as well as the quantity of the gold, which the borrowers used to deposit with the Bank against the loan advances. The record would show that the petitioner was incharge of the deposit cell of the Bank. But on 24‑5‑1963, the Managing Committee of the Bank by a resolution passed by them in that behalf, appointed a sub -Committee of five persons to scrutinise all the loans advanced by the Bank against the gold deposits. Vide its report, dated 1‑7‑1963, the sub‑Committee reported to the Managing Committee that all was not well with the gold deposits and in that behalf it also blamed the petitioner. The Managing Committee considered the report of the sub‑Committee and consequently by its order dated 21‑94964, referred the case to Arbitration under section 54 of the Cooperative Societies Act, 1925. By the majority award, dated 9‑7‑1970, delivered by the nominees of the Bank, as well‑as of the Registrar the peti tioner was held liable to the Bank, although the third nominee appointed by Inayat Ilahi and Company disagreed with the majority. Faced with this situation the petitioner went in appeal before the Registrar, Cooperative Societies but his appeal was dismissed by the Deputy Registrar, vide his order, dated 18‑6‑1971. He then filed a revision petition before the Secretary, Food and Cooperation Department. Punjab, but the same failed and thereafter he filed Writ Petition No. 2120 of 1974, in the High Court, but the same was dismissed vide the impugned order, dated 2‑10‑1978. Now in so far as the award, by which the petitioner was held liable is concerned, its operative part runs as under: ‑ "The case of Qazi Inamullah ex‑Manager of the plaintiff Bank is however different. He was a responsible officer of the Bank and he allowed and carried out the irregularities in connection with the gold transac tions knowingly and arbitrarily. He has also executed a surety bond in favour of the plaintiff bank and is therefore held liable to the extent of the amount which could not be recovered by the plaintiff bank from the original borrower and his sureties." The High Court, upon the said finding recorded against the petitioner by the Arbitrators, held "that the petitioner fully participated in the arbitration proceedings and that he was held liable with the principal debtor as a surety for the principal‑debtor and that makes him the borrower under clause (ii) of the analysis of the definition of borrower in para. 13 of the judgment. As regards the petitioner's right to nominate the representative or arbitrator, rule 32 of the Co‑operative Societies Rules is complete answer. It provides: "When there are more persons than one on each side, the principal party on each side will have the right to nominate the arbitrator." The petitioner was admittedly not the principal party in a case where there were as many as nineteen respondents grouped into four distinct categories In Constitutional jurisdiction it is not possible to go behind the award except on ground of jurisdiction and lawfulness. The quality and the weight of evidence are not matters capable of being reappraised in this jurisdiction. For proceeding under M. L. O. 241 it was not at all necessary to make the award a rule of the Court. As the liability of the petitioner did not relate to his service discipline but as surety and employee it was in terms of section 54 already quoted a dispute which could be referred to arbitration and the petitioner arrayed before the arbitrator. The only contention urged by the petitioner's counsel, however, is that in accordance with the award the petitioner was liable only to that amount which remained un-recovered from his principal (for whom he had stood surety) but in contravention thereof he is sought to be proceeded against for the recovery of the whole amount. The short answer to this contention is that in the first place the award has been passed severely as well as jointly and further that the same contention had been urged in the High Court, but was repelled as under: ‑ The contention that first the principle debtor should be proceeded against in terms of the 'award and, on failure to recover the amount from, him the petitioner should be vexed is relatable neither to jurisdic tion nor to the lawfulness of the action now being taken if he any objection on this ground, instead of making a bald assertion as he has done in this petition, he should indicate and identify the, specific property of the principal debtor which remains unattached and get the coercive processes of recovery. From this position he has not only to be an objector but to render complete and full assistance to recovery from principal debtor. In this duty he has failed. The learned counsel also contended that the Deputy Registrar who had decided the appeal of the petitioner had no jurisdiction in the matter; therefore, the entire proceedings subsequent thereto would be without jurisdic tion. We are afraid, there is no force in this contention. The learned counsel conceded before us that he had taken no such ground at any stage of the proceedings including in the High Court and consequently the said question cannot be permitted to be raised for the first time in this petition. We are, therefore, of the view that the judgment of the High Court is unexceptionable, this petition therefore, fails and is dismissed. Petition dismissed.