' Both the learned counsel appeared to be ready to finally argue this matter and therefore we decided to dispose it off. The petitioners were employed as clerks in the Respondent No.2 i.e. Karachi Stock Exchange (Guarantee) Limited, which is a company limited by guarantee incorporated under the Companies Ordinance. Being aggrieved by their termination of services, they served grievance notices upon the Respondent No.2 and moved the Sindh Labour Court No. V Karachi for redress of their grievances through separate applications. All the three applications were allowed by the Labour Court and they were directed to be reinstated with back-benefits. The Respondent No.2 preferred appeals before the then Sindh Labour Appellate Tribunal which were allowed on the sole ground that the applications before the Labour Court were not maintainable as the petitioners were civil servants in terms of section 2-A of the Service Tribunals Act, 1974 and only a Service Tribunal had exclusive jurisdiction to adjudicate matters concerning their terms and conditions of service. This finding has been questioned before us through this petition.
2. Mr. Shoa-un-Nabi learned counsel for the petitioner argued that the Respondent No.2 was neither a statutory corporation nor owned and controlled by the Federal Government and the findings of the learned Appellate Tribunal were therefore, unsustainable.
3. Mr. Farooq Ghani learned counsel for Respondent No.2 on the other hand supported the impugned order relying upon section 2-A of the Service Tribunals Act, which may be reproduced as follows:- "2-A. Service under certain corporations, etc. To the service of Pakistan, Service under any authority, corporation, body or organization established by or under a Federal Law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest is hereby declared to be service of Pakistan and every person holding a post under such authority, corporation, body or organization shall be deemed to be a civil servant for the purpose of this Act."
4. Learned counsel also referred to certificate for the Chief (Securities) Corporate Law Authority stating that the Respondent No.2 was regulated by the Corporate Law Authority Government of Pakistan which was an attached department of the Ministry of Finance. Though no statutory provisions establishing the Respondent No.2 was pointed out learned counsel placed strong reliance on section 3 of the Securities and Exchange Ordinance, 1969, which states that no stock exchange shall function unless it is registered under the Ordinance as well as sections 4 and 5 which deal with eligibility for and process of registration of stock exchange respectively. He also pointed out that under section 35 an existing stock exchange was deemed to have been registered under the Ordinance and section 34 required that regulations for carrying out the purposes of the Ordinance were to be made by stock exchange but only subject to previous approval of the Government.
5. Relying upon the aforesaid provisions of law Mr. Farooq Ghani attempted to defend the findings of the Respondent No.2 in the impugned order to the effect that since the Respondent No.2 was deemed to have been registered under the said Ordinance it meant that it was setup under the same. With profound respects we find the above reasoning to be entirely untenable. A bare reading of section 2-A of the Service Tribunals Act shows that only employees of a corporation established by the Federal Government or owned or controlled by it could be treated as civil servants. We are of the considered view that Respondent No.2 or for that matter even stock- exchange formed and thereafter registered under the Securities and Exchange Order could not be treated as a corporation so established. Moreover, admittedly the Respondent No.2 was not owned by the Federal Government and the expression "controlled" could not extend to each and every type of control. For that matter the activity of every corporate entity and most individuals are subject to a certain amount of controls and regulations imposed by law and enforced by the Government. For instance the functioning of every incorporate company is regulated and controlled by authorities under the Companies Ordinance and those of trade organizations by the Directorate of Trade Organizations under the Trade Organization Ordinance. Likewise, the State Bank of Pakistan enjoys plenary powers to issue directions to all banking companies including the power to remove Directors or Officers of a banking company. This however, would not mean that every employee of a private company or private bank could be treated as a civil servant.
6. It also needs to be kept in view that the Service Tribunals Act is a law enacted under Article 212 of the Constitution and though the Parliament is competent to declare a person to be in the service of Pakistan, such person, must perform an element of public duty. We fail to comprehend how a clerk of a private Stock Exchange could be deemed to be performing such public service.
7. For the foregoing reasons we would allow this petition and in view of the enactment of the Industrial Relations Ordinance 2002, direct that the appeal be placed before a learned Single Judge of this Court for a decision in accordance with law.