ABID AZIZ SHEIKH, J.--- This single judgment will dispose of Writ Petition No.10111/2010, W.P.No.10110/2010, W.P.No.10108/2010, W.P.No.10107/2010, W.P.No.10106/2010, W.P.No.10105/2010, W.P.No.10104/2010, W.P.No.10103/2010, W.P.No.15597/2010, W.P.No.15596/2010, W.P.No.15595/2010, W. P.
No. 15594/2010, W. P. No .15593/2010, W. P. No .15592/2010, W. P. No. 13504/2011, W. P. No.13505/2011, W.
P. No .13506/2011, W.P.No.13507/2011, W.P.No.13508/2011, W.P.No.13509/2011, W.P.No.13510/2011, W.P.No.13511/2011, W.P.No.13512/2011, W.P.No.27864/2013, W. P. No. 27867/2013, W.P.No.26374/2010, W.P.No.26375/2010, W.P.No.26376/2012, W.P.No.26377/2012, W. P. No .26378/2010, W. P. No. 27870/2013, W. P. No .27874/2013, W.P.No.24891/2013, W.P.No.27862/2013, W.p.No.27863/2013, as common question of law and facts are involved in these writ petitions.
2. The above noted Constitutional Petitions are filed by the petitioners claiming themselves to be retired employees in different grades with the respondent Bank (United Bank Limited), the petitioners are seeking direction against the respondents to release the grade increment withheld in the completed year of 2011 and to recalculate petitioners retirement/pensionary benefits on the basis of their last drawn basic pay and that the arrears thereof may also be ordered to be released along with leave encashment etc with mark up accrued thereon till date of retirement.
3. At the very outset, learned counsel for the respondents raised preliminary legal objection to the maintainability of these writ petitions. Before dilating upon merits, I would like to decide the question of maintainability of these petitions at the first instance.
4. The learned counsel for the respondent bank (UBL) argued that UBL being a private bank is not performing functions with respect to affairs of Federation, Province or any other statutory body and further the employees of the bank are not governed under the statutory rules, therefore, these constitutional petitions are not maintainable against the bank. Further argued that respondent No.4 (State Bank of Pakistan) is neither a necessary nor proper party as it only regulate the respondent bank for its functions under Banking Company Ordinance, 1962 and has no concerned with the Bank and its employees regarding terms and condition of their service including pension matters. Further argued that being factual issue involved, petitioners have alternative remedies available under the relevant Labour Laws and also before the Civil Courts for agitating their grievance, hence these constitutional petitions are not maintainable. To support his arguments, reliance is placed on Abdul Wahab v. HBL etc. (2013 SCMR 1383), P.I.A Corporation v. Tanweer-ur- Rehman (PLD 2010 Supreme Court 676), Pakistan Telecommunication Co. Ltd. Through Chairman v.
Lqbal Nasir and others (2011 PLC (C.S.) 623), United Bank Limited Pensioners Welfare Association v.
United Bank Limited (2011 CLC 831) and Muslim Commercial Bank Limited v. State Bank of Pakistan (2010 CLD 338). Learned counsel further submits that though objection raised by the office on the question of maintainability of one of the Writ Petition No.10109/2010 was over-ruled by this Court, however, the said order being passed without hearing to respondent Bank and also being on administrative side will not bar this Court to deliberate and decide the question of maintainability of these petitions on judicial side after hearing learned counsel for the parties.
5. Learned counsel appearing on behalf of respondent No.4 (State Bank of Pakistan) reiterated the preliminary objections raised by learned counsel for the respondent bank and in addition argued that the petitioner could not point out any statutory obligations on part of State Bank of Pakistan which it failed to perform. He argued that State Bank of Pakistan is a regulatory body for the banks regarding their functions under the Banking Company Ordinance, 1962 and prudential regulations issue by the State Bank of Pakistan from time to time but it has no concern with the dispute of recalculation of petitioners pension and other service matters. Adds that State Bank of Pakistan is liable to be deleted from array of respondents and these constitutional petitions cannot be entertained by merely impleading State Bank of Pakistan as a party.
6. In response to the preliminary objection raised above, learned counsel for the petitioners argued that as the petitioners are claiming grade increments and recalculation of their pensionary benefits, the same being fundamental rights, these constitutional petitions are maintainable under Article 199 (1)(c) of the Constitution of Islamic Republic of Pakistan, 1973. Submits that even if it is found that respondent Bank is a private Bank and its rules are also not statutory, even then, for the enforcement of fundamental right, a writ can be issued against private person. Reliance is placed on Human Rights Commission of Pakistan and 2 others v. Government of Pakistan and others (PLD 2009 Supreme Court 507), Pakistan Defence Officers Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707), A.F. Industries through Proprietor and 2 others v. Federation of Pakistan through Secretary Law and 7 others (2010 CLD 1765), Khyber Zaman and others v.
Governor, State Bank of Pakistan, Karachi and others (2005 SCMR 235), Metropolitan Corporation Lahore v. Imtiaz Hussain Kazmi (PLD 1996 Lahore 499) and The State and others v. Director General FIA and others (PLD 2010 Lahore 23). Further argued that office also raised objection on the maintainability of Writ Petition No.10109/2010, however, said objection was over ruled by this Court vide order dated 5-5-2010, therefore, respondents are estopped to raise this preliminary legal objection at this stage. Further argued that the remedies under the Labour Laws and before the Civil Court is not an adequate and efficacious remedy.
7. I have heard the arguments of learned counsel for the parties on the question of maintainability of these petitions and perused the record with their assistance.
8. The question which falls for consideration is as to whether the respondent Bank is a private body or falls within the definition of the State or authority under the control of the government and its rules are statutory or otherwise. If it is found that respondent bank falls within the later category there would be no hurdle in holding that respondent bank would undoubtedly be amenable to writ jurisdiction under Article 199 of the Constitution. On the other hand, if it is found that respondent bank is a private body and not governed under statutory rules in that event it will be examined whether these constitutional petition will be maintainable or not. To decide the aforesaid issue of maintainability the following legal question in the matter shall encompass the controversy between the parties and the answer thereto:-
(i) What is the status of the Bank?, Whether it is a private body or performing functions with respect to affairs of federation, province or any statutory body?.
(i) Whether the rules of Bank are statutory in nature, if not whether constitutional petition is maintainable?
(iii) Whether State Bank of Pakistan is a relevant party in the matter?
(iv) If it is found that bank is a private body and also does not have statutory service rules, whether writ can be issued against the Bank for the relief claimed under Article 199(1)(c) of the Constitution of Islamic Republic of Pakistan?
Question No. 1.
9. It is not disputed that United Bank Limited was a Government Bank, however, in the year 2002, the Bank was privatized and since then functioning as a Limited Company. After privatization, majority of its shares have been acquired and vested with the private parties. There is also no discord that the State/Federation has neither any financial interest in the Bank nor it is controlling the affairs thereof. The State Bank of Pakistan also does not have any financial interest in the Bank but is only a regulatory body for all the Banks operating in Pakistan including the respondent Bank in terms of Banking Company Ordinance, 1962. The question whether a legal entity is "Person" within the meaning of Article 199 of the Constitution can be determined through a "function test" i.e. The extent of financial interest of the State and dominance in the controlling affairs thereof. Applying the "functional test" to the respondent Bank, I have no hesitation to hold that the Bank is a private entity for all intents and purposes and not performing functions in connection with the affairs of the State/Federation. The similar question came up before the august Supreme Court in Abdul Wahab and others v. HBL and others (2013 SCMR 1383), where while holding that Habib Bank Limited is a private body, it was observed as under:--- "However, in order to bring the Bank within the purview of the connotation(s) of a person and authority appearing in Articles 199, 199(5) and 199(1) (c) of the Constitution and also for the purpose of urging that appropriate order, in the nature of a writ can be issued independently by this Court under Article 184(3) (Constitution), to the Bank, the learned counsel for the petitioners has strenuously relied upon the function test and in this respect it is submitted that the State/Federation has a considerable, shareholding in the Bank and representation in the managing affairs thereto therefore, it shall qualify having the status of a person/authority within the meaning of the law, besides, the Bank is being regulated by and under the authority of the SBP thus on this account as well it (Bank) has the status mentioned above, therefore, this Court should exercise its jurisdiction in terms of the Article supra. In this context, it may be held that for the purposes of resorting to the function test, two important factors are the most relevant i.e. Extent of financial interest of the State/Federation in an institution and the dominance in the controlling affairs thereof. But when queried, it is not shown if the State/Federation has the majority of shareholding, or majority representation in the Board, of Management of the Bank. As regards the authority and the role of the SBP (in the above context), SBP is only a regulatory body for all the banks operating in Pakistan in terms of Banking Companies Ordinance, 1962 and suffice it to say that such regulatory role and control of SBP shall not clothe the Bank, with the status of a person or the authority performing the functions in connection with the affairs of the Federation. Rather it shall remain to be a private entity. In support of the above, reliance can be placed on two judgments of this Court reported as Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Takht Phai and 10 others (PLD 1975 SC 244), which prescribes that regulatory control does not make a person performing functions in relation to the federation or a province". Likewise in Pakistan Red Crescent Society and .Another v. Syed Nazir Gillani (PLD 2005 SC 806) it was held "such control must be particular to the body in question and must be persuasive.... On the other hand, when the control is merely regulatory whether under the statute or otherwise it would not serve to make the body a State therefore, we have no hesitation to hold that the Bank is a private institution for all intents and purposes. And we vide short dated 17-10-2012 has deferred our decision on the issue if such a private person in amenable to writ jurisdiction in the context of Article 199 (I)(c) of the Constitution."
' The similar question of maintainability of writ against United Bank Limited came up before Islamabad High Court in case United Bank Limited Pensioners Welfare Association of Pakistan through President v. United Bank Limited through President and 5 others (2011 CLC 831) where while dismissing the Constitution Petition, it was held as under:--- "The instant writ petition has been filed against United Bank Limited, which is not a person within the meaning of Article 199 of Constitution of Islamic Republic of Pakistan, 1973. The Bank is not performing functions with respect to the affairs of Federation, Province or any statutory body. The employees of the Bank are not governed by the statutory rules and therefore, no writ can be issued against the respondent-Bank".
10. In case Abdul Malik v. Habib Bank Ltd. (2008 CLC 339), it was held as under:--- It is not disputed that after privatization of Habib Bank Limited, it is being run by a private party and bank has no concern with the affairs of Federation or a Province, which is condition precedent qua maintainability of constitutional petition. In this regard we are fortified by the judgments reported in PLD 1966 SC 445 and 2005 MLD 1798".
In case Abdul Rehman v. President Habib Bank Limited and others (2009 PLC (C.S.) 888), it was held as under:--- "There is no cavil with the fact that after privatization of the Habib Bank Limited, it is run by a private party, therefore, the Bank has no concern with the affairs of Federation or a Province which is condition precedent for maintainability of Constitutional Petition."
While dealing with question of maintainability of writ petition against Muslim Commercial Bank, in case UIMCB Ltd. Through Authorized representative v. State Bank of Pakistan through Governor and 2 others (2010 CLD 338), it was held as under:--- "So far as the submission that the MCB is not a "person" within the meaning of Article 199(5) of the Constitution of Islamic Republic of Pakistan, 1973 is concerned, the learned counsel for the petitioner has not been able to convince if the MCB is performing any functions in relation to the affairs of the Province. Federation or any statutory body to which a writ in the nature provided by the noted Article can be issued. Resultantly, the preliminary objection raised by the respondent side is sustained and this petition is dismissed as being incompetent and not maintainable".
In case titled lzhar Hussain and 18 others v. Khalid Sherwani and 4 others (2004 PLC (C.S.) 945), writ petition against another private bank i.e. Allied Bank Limited, was dismissed being not maintainable. In this context, reliance is also placed on Pakistan Red Crescent Society and another v. Syed Nazir Gillani (PLD 2005 Supreme Court 806) and Salahuddin v. Taj Muhammad Khanzad (PLD 1975 Supreme Court 244).
In view of above discussion, undoubtedly the. Respondent Bank being a private entity and not performing function in connection with Province, Federation or any statutory authority, the Constitutional Petition is not maintainable.
Question No.2.
11. It is not the case of the petitioner that they are governed by any statutory rule of service. There is no dispute that the service rules of the Bank are neither made by the government nor they are framed with the approval of the government, therefore, it does not carry any statutory force behind it. It is settled law that where a service grievance is agitated by a person/ernployee who is not governed by statutory rule of service, before High Court in term of Article 199 of the Constitution, such petition will not be maintainable. In this context, the august Supreme Court in case of Abdul Wahab and others v. HBL supra, held as under:--- "It is settled laws 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, such 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 to 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 case of contractual service, where the grievance agitated is against a private person, there is no reason that such restraint should be resorted to by this Court and any exception should be taken to the law laid down in Tanweer-ur-Rehman case supra (note, if it pertains to the writ jurisdiction of High Courts)."
In case titled Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman (PLD 2010 Supreme Court 676) it was held as under:--- "However, this question needs no further discussion in view of the fact that we are not of the opinion that if a corporation is discharging its functions in connection with the affairs of the Federation, the aggrieved person can approach the High Court by invoking its constitutional jurisdiction, as observed hereinabove, But as far as the cases of the employees, regarding their individual grievance, are concerned, they are to be decided on their own merits namely that if any adverse action has been taken by the employer in violation of the statutory rules, only then such action should be amenable to the writ jurisdiction, then the principle of Master and Servant would be applicable and such employees have to seek remedy permissible before the Court of competent jurisdiction."
While dealing with question of maintainability Pakistan Telecommunication Co. Ltd. v. Iqbal Nasir and others (2011 PLC (C.S.) 623), it was held as under:--- "On the question whether in absence of any breach of statutory provision, the employees of appellant-Corporation could maintain an action for reinstatement etc, it was observed that the said question needed no further discussion in view of the fact that this Court was not of the opinion that if a Corporation was performing its functions in connection with the affairs of the Federation, the aggrieved persons could approach the High Court by invoking its constitutional jurisdiction. But as far as the cases of the employees regarding their individual grievances were concerned, it was held that they were to be decided on their own merits, namely, if any adverse action was taken by the employer in violation of the statutory rules, only then such action would be amenable to the writ jurisdiction. Therefore, in absence of statutory rules, the principle of Master and Servant would be applicable and such employees would be entitled to seek remedy permissibly before the Court of competent jurisdiction. Similarly, in M. Tufail Hashmi (supra), after discussing the aforesaid two judgments in details, it was held that the employees of those organization, which were performing functions in connection with the affairs of Federation, were eligible to approach the High Court under Article 199 of the Constitution if their services were governed by statutory rules. It was further held that since the employees of AIOU, SME Bank and Pakistan Steel Mills, who approached the Service Tribunal for redressal of their grievance, were not enjoying the protection of statutory rules, therefore, the Service Tribunal had no jurisdiction to adjudicate upon such matters and they would be governed by the principle of Master and Servant."
In this context, reliance is also placed on following judgments of august Supreme Court as well as of this Court Syed Nazir Gillani v. Pakistan Red Crecent Society and another (2014 SCMR 982), Habib Bank Ltd. v. State (2013 SCMR 840), Executive Council, Allama Iqbal Open University, Islamabad v.
M. Tufail Hashmi (2010 SCMR 1484), Pakistan International Airline Corporation and others v.
Tanweer-ur-Rehman and others (PLD 2010 SC 676).
In view of above discussion, it can safely be concluded that the service rules of Bank being not statutory, constitutional petition is not maintainable for enforcement of said rules.
Question No.3.
12. In order to answer this question, it is necessary to determine whether the State Bank of Pakistan
(SBP) has failed to perform any of its statutory and legal obligations regarding petitioners service disputes i.e. Increments and recalculation of their pensionary benefits. As regards the authority and the role of SBP is concerned, SBP is only a regulatory authority for all the Banks operating in Pakistan and its functions are contemplated under the Banking Companies Ordinance, 1962 (Ordinance 1962) with respect to the activation and operation of banks and for carrying out purpose of Banking Companies Ordinance, 1962 and matters ancillary thereto. Perusal of various provision of Banking Company Ordinance, 1962 shows that the dispute between the petitioners and respondent Bank is not covered under the provision of Ordinance, 1962 and that such regulatory role and control of SBP shall not clothe the Bank with the status of "person" or "authority" performing function in connection with affairs of Federation. Learned counsel for the D petitioner has not referred any statutory provision under which the State of Bank being a regulator have a statutory duty and obligation to direct the Bank to perform its functions in respect of its employees term and condition of service. In similar situation, while dealing with question of maintainability of writ petition against Muslim Commercial Bank, in case UIMCB Ltd. Through Authorized representative v. State Bank of Pakistan through Governor and 2 others (2010 CLD 338), it was held as under:--- "Analyzing the question with reference to section 41 of the Ordinance, it may be held that the State Bank has the power to give direction to the banks, if it is in the public interest and /or to prevent the affairs of any banking company being conducted in a manner detrimental to the interests of the depositors or in a manner prejudicial to the interest of the banking company, or to secure, the proper management of any banking company generally (underlined to supply emphasis). This power of the State Bank of Pakistan is not unlimited omnipotent, unbridled rather is circumscribed by the condition of being in the public interest, though public interest cannot always be constructed to mean all the people or most of the people, but obviously so many of them as contradistinctions them from the few. Only for the reason that a few ex-employees of the MCB have formed a registered body would not mean to confer the petitioner with the status of the public whose interest should be served in terms of section 41(a); moreover, any impugned action or inaction on part of the MCB, does not fall within the concept of preventing the affairs of the banking company being conducted detrimental to the interest of the depositors, or prejudicial to the interest of the banking company, or for securing the proper management thereof, which again is the prerequisite for the exerciser of the power of the State Bank of Pakistan On account of section 41 (b)(c). The issue raised by the petitioner in this case examined from any provision.
Subsection (2) of section 41 of the Ordinance, also does not come to rescuer the petitioner as the directions, guidelines and instructions contemplated by this subsection are with respect to the activities and operations of the banks and the institutions for carrying out the purposes of the Ordinance and the matters ancillary thereto. The learned counsel for the petitioner has not been able to substantiate, if the grievance voiced in the petition is covered by section 41(2) of the Ordinance, therefore, I am quite clear in my view that no direction in the constitutional jurisdiction can be issued to the State Bank of Pakistan for further directing the MCB to perform any of the acts as are mentioned in the section."
The august Supreme Court is Abdul Wahab's case supra also held as under:-- "As regards the authority and the role of the SBP ( in the above context), SBP is only a regulatory body for all the banks operating in Pakistan in terms of Banking Companies Ordinance, 1962 and suffice it to say that such regulatory role and control of SBP shall not clothe the Bank, with the status of a person or the authority performing the functions in connection with the affairs of the Federation. Rather it shall remain to be a private entity".
In view of above discussion, the SBP having not failed to perform any of its statutory obligation towards petitioner is not a necessary party in this petition and no direction can be issued to SBP for release of increments or recalculation of pensionary benefits of the petitioners.
Question No. 4.
13. The arguments of learned counsel for the petitioner in pith and substance is that even if Bank is a private entity and its rules are also not statutory, still constitutional petition is maintainable against the respondent Bank under Article 199(1)(c) of the Constitution as fundamental right of the petitioner are being entrenched. No doubt Fundamental rights enshrined in our Constitution are most sacred of the rights conferred upon citizens/persons of the country and the Constitution under Article 8(2) place complete bar on the State not to make any law which takes away or abridge said rights. Safe guard is also provided by the Constitution through specific and a special mechanism, in term of Article 199 of the Constitution conferring power with High Court to make an order giving direction as may be appropriate for the enforcement of the fundamental rights conferred by Chapter 1 of Part II of the Constitution. There is also no dispute that right to life under Article 9 of the Constitution includes right to livelihood and no person shall be deprived of life and liberty save in accordance with law. But when this right is applied in respect of the issues having nexus to service matters, which is regulated under some law, the employee shall be governed under the terms and conditions of those laws and in case of violation of those laws, the employee shall have a right to take recourse to the remedy available to him and provided by or under the relevant law, before the forum of competent jurisdiction. However, in those cases where service of employee is not regulated by any law or statutory rules, his remedy will be for breach of contract or wrongful action before the Court of plenary jurisdiction. In this context reliance is placed on case of Abdul Wahab Supra, where it is held as under:- "Fundamental rights enshrined in our Constitution have a very significant and pivotal position and are the most sacred of the rights conferred upon the citizens/person of the country and thus the regard, security and the enforcement of these rights is only of the primary duties of the State and its institutions at all the levels. These are such a primordial rights, that the sanctity and the significance attached thereto can be gauged from the constitutional mandate as prescribed (envisaged by) Article 8 of the Constitution, whereby it is ordained (specified) that any law etc, in, so far as it is inconsistent with such rights shall to the extent of inconsistency be void. Not only that, under Article 8(2), a complete bar and a prohibition has been placed on the State, in that, "the State shall not make any law which takes away or abridge the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void". In view of the sanctity and the importance of these rights and for the safeness and the safeguard (saving those from a slightest impairment) thereof the Constitution itself in a noteworthy way, has provided a specific and a special mechanism, in terms of Article 199(1)(c) by virtue whereof notwithstanding the powers of the High Courts under Article 199(1)(a) and (b) an extraordinary power has been conferred on it "to make an order giving directions to any person etc.,... As may be appropriate for the enforcement of the fundamental rights conferred by Chapter I of Part-II" and moreover a bar has placed on the State in terms of Article 199(2) that subject to the Constitution, the right to move to the High Court(s) for the enforcement of such rights shall not be abridged".
"Now attending to the other condition of the Article 184(3) (supra) with reference to the violation of the fundamental rights (if any) of the petitioners; there seems no room to disagree with the plea/legal position that the right to life of a person/citizen shall include the right to livelihood and right to livelihood, therefore, cannot hang on to the fancies of individuals in authority; the employment is not a bounty from them (individuals in authority) nor can its survival be at their mercy. But at the same time it cannot be ignored and elided if a person, who is once taken into an employment by the State or any State Controlled institution, or even a private institution/individual has (such employee/person) a right in perpetuity (throughout his life time) to remain in service, and his services can never be dispensed with by his employer, even though it is so permissible in terms of the service rules (where statutory) by which he is governed, despite of his inefficiency, incapacity, misconduct etc., and compulsory retirement and more-so, where the employment is of contractual nature and with a private entity. Because such an action (termination etc) shall be an infringement of right to life as envisaged by Article 9 of the Constitution. Upon analysis of the said Article, which stipulates "No person shall be deprived of life and liberty save in accordance with law" and when it is resorted to in respect of the issues having nexus to service matter it shall unmistakably be permissible that the employment of an employee can be brought (come) to an end, but obviously in accordance with the law (emphasis supplied), when there is some law regulating such an employment/service".
"Therefore, if the services of any employee are dispensed with by the employer, either by removal, dismissal, termination or compulsory retirement or any other adverse action is taken against him in connection with his service rights, other than in accordance with law, the employee shall have a right to take recourse to the remedies available to him and provided by or under the relevant law, before the forum of competent jurisdiction. (note: May it be the termination etc of one employee of State/Government/institution or the group or bulk of such employee). However, in those cases where the employment/ service(s) is not regulated by any law, as in the present case it is admitted position that Rules, 1981 are non statutory (emphasis supplied), and thus not a law, rather contractual stipulations, and no specific forum is designated for the resolution of such serve issues, therefore, an infringement of any condition of such a contract shall at the most entitle and clothe the employee to avail his ordinary remedy for the breach of the contract and on account of wrongful action against him, before the court of plenary jurisdiction. In such a situation, it cannot be urged that the fundamental right of the employee has been violated conferring upon him a right to enforce the same (in terms of Article 199 and/or) under Article 184(8) (supra)."
14. Despite the above legal position, I proceed to examine whether at all petitioners fundamental rights are infringed and enforceable under Constitutional jurisdiction. In this context, it can be seen that claim of the petitioners regarding release of grade increments and recalculation of their pensionary benefits etc. Is indeed a dispute of private character with the employer Bank regarding terms and condition of petitioners service contract, which are governed under non-statutory rules.
The remedy of writ under Article 199 of the Constitution is pre-eminently a public law remedy and is not generally available as remedy against private wrongs.
It is used for enforcement of fundamental rights of the public or to compel the Public/statutory authorities to discharge their duties and to act within their bounds. The writ jurisdiction of this Court is admirably equipped to serve as a judicial control over administrative actions and where a dispute is of a private character and not for enforcement of fundamental right as of public duty, constitutional petition is not maintainable for resolution of such private dispute. The august Supreme Court in case reported as Pakistan Red Crescent Society and another v. Syed Nazir Gillani (PLD 2005 SC 806) while holding that Bank is a private institution held that Government control must be particular to the body in question and must be persuasive and on the other hand, when the control is merely regulatory whether' under the statute or otherwise it would not serve to make the body a "State". The Supreme Court of India in case Praga Tools Corporation v. Shri C.A. Imanual and others (AIR 1969 Supreme Court 1306) while dealing with scope of writ of mandamus, held as under:--- "6. But it is well understood that a mandamus lies to secure the performance of a public or statutory duty in the performance of which the one who applied for it has a sufficient legal interest. Thus, an application for mandamus will not lie for an order of reinstatement to any office which is essentially of a private character nor can such an application be maintained to secure performance of obligations owed by a company towards its workmen or to resolve any private dispute."
15. The perusal of case law relied upon by the learned counsel for the petitioner shows that the same is also distinguishable and does not relate to service matter or dispute between employer or employee regarding terms and conditions of their service under non-statutory rules. In the case of Human Rights Commission of Pakistan and 2 others v. Government of Pakistan and others (PLD 2009 Supreme Court 507), the matter pertained to bonded Labour where individuals were detained by private land owner and violated their fundamental rights. In AF Industries through Proprietor and 2 others v. Federation of Pakistan through Secretary Law and 7 others (2010 CLD 1765), the matter pertains to the statutory obligation of the Bank under the provision of Financial Institution (Recovery of Finances) Ordinance, 2001. In The State and others v. Director General, FIA and others (PLD 2010 Lahore Page 24), the matter was of fraud, perpetrated by private company on group of people. In Khyber Zaman and others v. Governor, State Bank of Pakistan, Karachi and others (2005 SCMR 235), the question of maintainability against private person was not raised or decided.
Learned counsel for the petitioner heavily relied on Pakistan Defence Officers Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707) to argue that this constitutional petition is maintainable. However, careful perusal of the said judgment of the august Supreme Court of Pakistan shows that the same re-enforces the settled legal position that writ is not maintainable against the private person and also against those companies which does not have statutory rules and governed under principles of master and servant. The question involved before the august Supreme Court of Pakistan in the said case was regarding maintainability of constitutional petition, where removal of service was either in violation of rule of natural justice or in violation of provision of Removal from Service Ordinance, 2000, which question is not relevant to the facts and circumstances of this case.
In the wake of above discussion, the claim of the petitioner regarding release of grade increment and recalculation of their pensionary benefits etc being a dispute of private character is not enforceable through Constitutional Petition against the private Bank.
16. As far as the arguments of learned counsel for the petitioner that office objection regarding maintainability of writ petition has already been over-ruled by this Court, therefore, same cannot be raised again, suffice it to say that learned Single Judge while hearing an objection case performed an administrative function. It is settled law that only after office objection is over-ruled, the case mature for adjudication on the judicial side and formally enters the arena of "Original Civil Jurisdiction" or the "Constitutional Jurisdiction" as the case may be. Accordingly, in the present case, the office objection decided by the learned Single Judge was in administrative jurisdiction and does not preclude this Court to determine the question of maintainability of these petitions, after hearing learned counsel for the parties on judicial side in constitutional jurisdiction. Reliance is placed on Rana Naveed Ahmad Khan v. Province of Punjab through Secretary LG and CD (PLD 2014 Lahore 436).
17. In view of above discussion, I have no manner of doubt that respondent Bank being not a person performing function in connection with affair of Federation or province and also being not governed under statutory rules, these constitutional petitions are not maintainable. Resultantly, the preliminary objection raised by the respondents side is sustained and these petitions are dismissed being in-competent and not maintainable.