' IJAZ UL AHSAN, J.--- Through this single order, I propose to decide W.Ps. Nos.24095 of 2009 and 3225 of 2010, as identical questions of law and facts are involved in these petitions.
2. The petitioners in these petitions were employees of the Bank of Punjab where they held senior positions. Vide letters dated 20-5-2009 and 12-8-2009, their services were terminated in simpliciter.
Through these constitutional petitions, the petitioners seek setting aside of their termination letters and reinstatement into service with all back benefits. The petitions have been contested by the respondents. By way of a preliminary objection they have taken the stance that the relationship between the parties is governed by the principle of master and servant. Therefore, the relief sought by the petitioners cannot be granted by this Court in exercise of its extra ordinary constitutional jurisdiction under. Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. In case the petitioners are aggrieved of any order passed by the respondent, their remedy lies in seeking damages from a Court of plenary jurisdiction.
3. In view of the preliminary objection raised, which goes to the very heart of this controversy, I propose to decide the same first.
4. I have, therefore, directed the learned counsel for the parties to address arguments regarding maintainability of this petition and the preliminary objection raised by learned counsel for the respondents.
5. The learned counsel for the respondent bank submits that this constitutional petition is not maintainable as the principle of master and servant is applicable to the relationship between the parties. He submits that service rules contained in the HR Manual of the respondent bank are for internal use of the bank and are non-statutory in nature. Consequently, a constitutional petition is not maintainable. In this regard, reliance is placed on Abdul Wahab and others v. HBL and others (2013 SCMR 1383) and Syed Nazir, Gillani v. Pakistan Red Crescent Society and another (2014 SCMR 982) where it has been held that in case a service grievance is agitated by a person/employee, who was not governed by statutory rules of service before the High Court in terms of Article 199 of the Constitution, such petition shall not be maintainable.
6. The learned counsel further submits that the petitioner was not dismissed on the allegation of misconduct. Therefore, the judgment of the Hon'ble Supreme Court of Pakistan passed in Civil Appeal No.39 of 2010 reported as Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707) is not applicable to the facts and circumstances of the present case. The learned counsel for the respondent has further argued that where a person/ employee was not governed by statutory rules of service or where the employment/services were regulated by contractual stipulations and internal rules and regulations and no specific forum was designated for resolution of issues relating to employment, an infringement of any condition of such a contact shall at the most entitle the employee to avail his ordinary remedy for breach of contract and wrongful action against him before the Court of plenary jurisdiction. In such a situation it could not be urged that the fundamental rights of the employee had been violated conferring upon him a right to enforce the same in terms of Article 199 of the Constitution.
7. The learned counsel has also referred to the case of Ms. Zeba Mumtaz v. First Women Bank Ltd.
And others (PLD 1999 SC 1106) where it was held that in the absence of any statutory rules, relationship between the employer and employee of a corporation, protection could not be sought under the labour laws or any statutory instrument in view of the fact that such relationship is governed by the principle of master and servant. The said judgment was up held by a Larger Bench of the Hon'ble Supreme Court of Pakistan in a case reported as Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others (PLD 2006 Supreme Court 602).
8. The learned counsel for the respondent-bank has further argued that the status of the Bank of Punjab was discussed in a judgment of a learned Division Bench of this Court reported as Arshad Ahmad Khan v. Chairman, Bank of Punjab and others (2001 PLC (C.S.) 207). In the said judgment, it was held that the petitioners who were employees of the bank and their services had been terminated could not maintain a constitutional petition in view of the fact that the service rules of the bank were non-statutory rules. Bylaws of service did not have the force of statutory rules or regulations in view of the fact that under the provisions of section 25 of the Bank of Punjab Act, 1989, such rules and regulations required the approval of the provincial government to attain the status of statutory rules. Since such approval was missing, the bylaws and service rules/regulations of the Bank of Punjab could not be termed as statutory rules and the order of removal from service could not be challenged in the constitutional jurisdiction of this Court. The learned counsel submits that afore-noted judgment of a Division Bench of this Court was upheld by Hon'ble Supreme Court of Pakistan in C.R. No.671-L of 2002 vide its judgment dated 27-2-2003.
9. The learned counsel for the respondent bank has further submitted that in the light of the judgment of the Hon'ble Supreme Court of Pakistan as well as this Court, there are 3 mandatory conditions to invoke the constitutional jurisdiction of this Court namely:---
(i) The organization against whom a writ petition is filed should be one performing functions in relation with the affairs of the Federation or the provinces.
(ii) The rules of service must be statutory.
(iii) The person invoking the jurisdiction must be an aggrieved person.
10. The learned counsel submits that the Bank of Punjab was created under a statute but it is being run by a Board 9f Directors. In addition, the service rules governing its employees are non- statutory. Therefore, at least 2 of the afore-noted conditions are not fulfilled in the present case and the relationship of the parties is governed by the principle of master and servant.
11. The learned counsel has further pointed out that the mere fact that the respondent bank is owned and controlled by the government is not sufficient to entitle the employees to approach this Court in its constitutional jurisdiction. In this regard, he has relied upon Habib Bank Ltd. v. The State (2013 SCMR 840) where it was held as follows: --- "Thus even if it is assumed that HBL was a government owned and controlled bank, on the suspension of service of respondent No.1, his service being not governed by statutory rules of service, he will not be entitled to maintain a constitutional petition in the High Court for payment of his salary dues for the purpose of his suspension as allowed by the impugned judgment."
12. Elaborating his argument that a constitutional petition is not competent even against government controlled organization if the rules are non-statutory, the learned counsel has referred to Pakistan Red Crescent Society and another v. Syed Nazir Gillani (PLD 2005 Supreme Court 806) where it was held that in such cases neither a suit nor a writ petition for the relief of reinstatement will be competent and on termination of service only a suit for damages would be competent as the principle of master and servant will be applicable. The same principle was reiterated in Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others (PLD 2006 Supreme Court 602).
13. On behalf of the respondent bank, it has further been argued that the contact of service which was offered to the petitioners and was accepted by them are binding and they are estopped from changing their position and taking an altogether different stance. He submits that the termination clause of the contract of service provides as follows:--- "Your service will be governed by the staff service bylaws in force and as amended from time to time and you will be required to serve at any of the bank branches/offices. The bank reserves the right to terminate your services by serving 3 months notice at any time without assigning any reason. In case you desire to discontinue the service, you will be bound to give 3 months notice in writing."
' It is submitted that the petitioners accepted the aforesaid condition by signing their appointment letters. Therefore, they cannot be heard at this stage to argue that the terms and conditions of the contract of service are not binding on him.
14. The learned counsel has referred to the HR manual on the basis of which the services of the petitioners were terminated in simpliciter. In view of the fact that there was a valid and binding contract between the parties which for all intents and purposes was meant to govern and regulate the relationship inter se the parties, this Court, in exercise of its constitutional jurisdiction, cannot override a lawful contract which had been duly accepted and acted upon by parties for a number of years in order to examine the legality of an action taken by, the bank pursuant to its HR Manual read with the termination clause of the contract. He further maintains that the petitioners cannot wriggle out of their contractual terms and agitate against their termination which was undertaken on the basis of a contract between the parties. Reliance is placed on ABN-AMRO Bank through Vice-President/Branch Manager v. Wasim Dar (2004 PLC 69). The learned counsel finally argues that admittedly the petitioners received their notice pay as stated in the termination letters without cavil, demur or protest. Further, services of the petitioners were terminated in simpliciter without assigning any reason and they were given 3 months notice pay. Such termination could not be termed as termination for a reason that may have required holding of an enquiry and fulfillment of other procedural formalities. Reliance in this regard has been placed on Muhammad Mubeen-us- Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others (PLD 2006 Supreme Court 602) and Ms. Zeba Mumtaz v. First Women Bank Ltd. And others (PLD 1999 SC 1106). He further argues that the notice pay as well as terminal benefits of the petitioner were paid by respondent bank. The petitioners withdrew and utilized the same. As such, the ratio of Abdul Wahab and others v. HBL and others (2013 SCMR 1383) and Ms. Zeba Mumtaz v. First Women Bank Ltd. And others (PLD 1999 SC 1106) was fully attracted and the petitioners were debarred from invoking the constitutional jurisdiction of this Court.
15. The learned counsel for the petitioner on the other hand submitted that the petitioners had performed services with respondent bank for many years. They were regular employees and the respondent bank did not enjoy the discretion to terminate their services at will. He maintains that the petitioners have been penalized without issuance of a show cause notice, holding of an enquiry, giving an opportunity to the employee to contest the allegations and thereafter passage of an order by the competent authority. He, therefore, maintains that the actions of the respondent bank are not only violative of the principles of natural justice but also against fundamental rights of the petitioners. He further maintains that perusal of the record of the respondent bank shows that there were reasons for terminating their services. However, in order to bypass the due process of law, the respondent bank resorted to the device of termination in simpliciter which constitutes a fraud on the statute. He further maintains that the respondent-bank is performing functions in connection with the affairs of the province within the meaning of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. It. Is, therefore, amenable to the constitutional jurisdiction of this Court. In this regard, the learned counsel has relied upon Abdul Wahab and others v. HBL and- others (2013 SCMR 1383). The learned counsel further submits that the petitioners have been condemned unheard. The salutary rule of Audi Alteram Partem has been violated. Therefore, this is a fit case for interference by this Court in exercise of its extra constitutional, jurisdiction. Referring to the argument of the learned counsel for the respondent that the petitioners were estopped from agitating this matter in view of the fact that they have received their terminal benefits, the learned counsel submits that the said argument was irrelevant in view of the fact that such benefits were credited to the accounts of the petitioners without their consent. Therefore, the fact that they did not object to the same cannot be .Used to deprive them of their constitutional right to approach this Court.
16. I have heard the learned counsel for the parties and gone through the record.
17. The main question requiring determination by this Court is whether this petition is maintainable in view of the preliminary objection raised by the learned counsel for the respondent.
18. On hearing the learned counsel for the parties examining the record and going through the case-law cited at the bar, my answer to the question is in the negative for the following reasons:--- a Admittedly the employment of the petitioners was based upon a contract of service which provided as follows:--- "Your service will be governed by the staff service bylaws in force and as amended from time to time and you will be required to serve at any of the bank branches/office. The bank reserves the right to terminate your services by serving 3 months notice at any time without assigning any reason. In case you desire to discontinue the service, you will be bound to given 3 months notice in writing." b. It has not been denied that such contract of service was accepted by the petitioners who signed the same. It is also apparent from a perusal of the HR Manual of the respondent bank that it is an internal document governing matters relating to the service of the employees of the respondent bank. There is nothing on record nor has it been argued that the HR Manual falls within the definition of statutory rules. It is, therefore, clear and obvious that the terms and conditions of the service of the petitioners are governed by non-statutory rules. Consequently the relationship between the petitioners and the respondent bank is governed by the principle of master and servant. As such a constitutional petition is not competent. In this regard, reliance is placed on Abdul Wahab and others v. HBL and others (2013 SCMR 1383), where the Hon'ble Supreme Court of Pakistan held, that where a service grievance was agitated by a person/employee who was not governed by statutory rules of service, before High Court in terms of Article 199 of the Constitution such petition shall not be maintainable. It was further held that cases where the employment/services, were not regulated by any law but by non-statutory rules or contractual stipulations and no specific forum was designated for regulation of such services, an infringement of any condition of such a contract shall at the most entitle the employee to avail his ordinary remedy for breach of contract and wrongful action against him before the Court of plenary jurisdiction. In such a situation, it could not be urged that the fundamental rights of the employee have been violated conferring upon him a right to enforce the same in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. c. The question of maintainability of constitutional petition in service matters relating to the Bank of Punjab (respondent bank) has come up for hearing before this Court in a number of cases in the past. The consistent view of this Court in this regard has been that the bylaws, rules and regulations of service of the respondent bank do not have the force of statutory rules or regulations and therefore a constitutional petition by employees of the bank was not maintainable in relation to their service matters. In this regard, reference may usefully be made to Arshad Ahmad Khan v.
Chairman Bank of Punjab and others (2001 PLC (C.S.) 207), which was upheld by the Hon'ble Supreme Court of Pakistan in C.P. No.671-L of 2002 vide judgment dated 27-2-2003. Likewise a learned Division Bench of this Court in I.C.A. No.255 of 1999 held that the rules governing service of the employees of the respondent bank are not statutory in consequence of which interference in constitutional jurisdiction was not warranted. Reference in this regard may also be made to a judgment of this Court rendered in W.P. No.15506 of 2001 in which relying on Arshad Ahmad v.
Chairman Bank of Punjab Lahore and 2 others 2000 PLC (C.S.) 1355 interference by this Court in an order of termination of an employee of the respondent bank was declined on the same reasoning.
The judgments of a Division Bench of this Court, Arshad Ahmed Khan's case ibid, which was upheld by the Hon'ble Supreme Court of Pakistan deals with the same question of law and is being on this Court. d. In a judgment of the Hon'ble Supreme Court of Pakistan rendered in Criminal Petition No.671-L of 2002 (Muhammad Ishaq Waheed Butt v. Chairman BOP and 2 others), it was held as follows:-- "The conclusion as arrived by the learned High Court revolves around the fact that the petitioner's services were not governed by any statutory rules and accordingly the writ petition was dismissed being not maintainable. The learned counsel when asked as to whether the services of the petitioner were governed by any statutory rules, he attempted to build up his argument on the basis of "minutes of 52nd meeting of the Board of Directors" which by no stretch of imagination can be equated to that of "Statutory Rules". There is no denying the fact that the services of the petitioner were not governed by any statutory rules and the dictum as laid down in Arshad Ahmad v. Chairman Bank of Punjab Lahore (2000 PLC (C.S.) 1355), Pakistan International Airlines Corporation v. Nasir Jamal Mali, etc. (2001 SCMR 934), admittedly renders no assistance to the case of petitioner." e. In the case of Muhammad Mazhar Anwar Khan v. Chairman Bank of Punjab (W.P. No. 20794 of 1999), a learned single Bench of this Court held as follows:--- "The petitioner has not been able to demonstrate that the service of the petitioner was governed by statutory rules. In the absence thereof the relationship between the petitioner and his employer is that of a Master and Servant and it was so held in the judgment rendered in I.C.A. No. 255 of 1999 referred to above. I respectfully follow the view taken by the Division Bench of this Court.
Accordingly, this writ petition is dismissed." f. I have asked the learned counsel for the petitioners if the legal position relating to the HR Manual/Service Bylaws have materially changed subsequent to the afore-noted judgments and if any development has taken place during this time that may support the argument that the service rules governing employees of the respondent-bank can now be termed as statutory rules. I have further asked him if there are any distinguishing feature's of the petitioners' case, that may take the case of the petitioners out of the ambit of the dicta of the. Afore-noted judgments. The learned counsel for the petitioner has neither been able to point out any such development nor has he identified any distinguishing features that may furnish justification, for this Court to exercise jurisdiction in this matter to grant the relief that the petitioners seek. g. In the case of Pakistan Red Crescent Society and another v. Syed Nazir Gallani (PLD 2005 Supreme Court 806), the Hon'ble Supreme Court of Pakistan cited an earlier judgments of the apex Court reported as Chairman WAPDA v. Jamil Ahmed (1993 SCMR 346) and Muhammad Yusuf Shah v. Pakistan International Airlines Corporation (PLD 1981 SC 224), in which it was held as follows:--- "Where the government while setting up a corporation does not reserve itself the power to regulate the terms of service of the corporation's employees under the relevant statute and does not prescribe any condition but leaves it to the discretion of the corporation by empowering it to frame rules or regulations in respect thereof without the government's intervention, then the corporation will be the sole arbiter in the matter of prescribing the terms and conditions of its employees and will be competent to deal with them in accordance with the terms and conditions prescribed by it. In such a case, neither a suit nor a writ petition for the relief of reinstatement will be competent and the remedy of an employee, for wrongful dismissal from or of termination of service will be a suit for damages as the principles of master and servant will be applicable." h. I have examined the HR Manual of the Bank of Punjab in light of the criteria as mentioned above and am of the. View that having been framed in terms of section 25 of the Bank of Punjab Act, 1989, these do not have statutory force. As such the petitioners are not legally entitled to invoke the constitutional jurisdiction of this Court for their reinstatement into service. i. The argument of the learned counsel for the petitioner that the respondent bank had some grievances against the petitioners and therefore they were entitled to issuance of show-cause notice and enquiry proceedings has not impressed me. Perusal of the impugned letters of termination indicates that the services of the petitioners were terminated in simpliciter, without assigning any reason and did not carry any stigma. Further their services were terminated in terms of their letters of appointment and on the basis of powers available to the respondent bank in terms of HR Manual. Therefore, merely alleging that the respondent bank may have had some grievances against the petitioners (regarding which nothing is available on record) does not, in my opinion provide sufficient basis for this Court to exercise its constitutional jurisdiction to interfere in this matter. In this regard, reference may usefully we made to the case of Ms. Zeba Mumtaz v. First Women Bank Ltd. And others (PLD 1999 SC 1106) where it was held as follows:--- i. "Even if the bank had some grievances but since action was initiated under the non-statutory service rules, therefore, principle of master and servant was applicable as such writ jurisdiction was not maintainable." j. In a recent judgment of the Hon'ble Supreme Court of Pakistan reported as Abdul Wahab and others v. HBL and others (2013 SCMR 1383), the entire case-law on the subject has been examined by a learned Six Member Bench of the Hon'ble Supreme Court of Pakistan and the principles discussed above have been reiterated. In this regard, it would be useful to reproduce following paragraphs of the said judgment for ease of reference:--- "Attending to the second part of the proposition, it is an admitted position that the petitioners were employed (promoted) by the Bank as a result of a prescribed internal process of the Bank and the letters of petitioners appointment (promotion) clearly indicate that they were taken into employment on their unequivocal acceptance of the terms and conditions employment, because in the said letters (Appended by the petitioners themselves with the petition), it is clearly mentioned that "you shall be bound by the rules and regulations of the bank for the time being in force". Thus when such offer (of appointment) was duly accepted by the petitioners, it culminated into a valid and a binding service contract between the parties, which for all intents and purposes was meant to govern and regulate the relationship inter se the parties. It may not be irrelevant to mention here (which may also be reiterated in other parts of the judgment) that it is not the case of the petitioners that they are governed by any statutory rules of service. It is settled law that, where a service grievance is agitated by a person/employee who is not governed by the statutory rules of service, before the High Court(s), in terms of Article 199 of the Constitution which petition shall not. Be maintainable; reference in this behalf can be made to PLD 2010 SC 676 (Pakistan International Airline Corporation v. Tanweer-ur-Rehman) and PLD 2011 SC 132 (Pakistan Telecommunication Co. Limited v. Iqbal Nasir). (Note: the question however if that is possible in terms of Article 199(1)(c), we have deferred). But the plea that such law shall not prevent this Court while exercising its jurisdiction under Article 184(3); suffice it so say that while exercising the jurisdiction this Court is bound by the conditions of Article 184(3); and moreover by such rules which are laid by this Court for regulating its jurisdiction, keeping in view the principles of restraints. We find that in the cases of contractual service, where the grievance agitated is against a private person, there is no reason that such restraint should not be resorted to by this Court and any exception should be taken to the law laid down in Tanweer ur Rehman case supra (note: even it pertains to the writ jurisdiction of High Courts)." k. The afore-noted principle has been reiterated and re-affirmed with reference to Abdul Wahab and others v. HBL and others (2013 SCMR 1383) and Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707) in a recent judgment of the Hon'ble Supreme Court of Pakistan reported as Syed Nazir Gillani v. Pakistan Red Crescent Society and another (2014 SCMR 982).
I. The petitioners were employees of the Bank of Punjab and had accepted employment on the basis of service contracts and had agreed to be governed by the service regulations/HR Manual of the respondent bank. Admittedly the HR Manual does not consist of statutory rules nor does it meet the criteria laid down by the Hon'ble Supreme Court of Pakistan in its judgments discussed above to be termed as statutory roles. It is an internal document meant to govern the terms and conditions of the employees of the respondent bank. Therefore, I am in no A manner of doubt that the relationship between the petitioners and respondent bank is governed by the principle of "Master and Servant". Any grievance of the petitioners arising out of the alleged violation of their service contract/HR Manual is not amenable to interference by this Court in exercise of its constitutional jurisdiction. The petitioners are, however, at liberty, if so advised, to approach a Court of plenary jurisdiction for redressal of their grievance.
19. For the afore-noted reasons, I find that these petitions are not maintainable. The same are accordingly dismissed.