MUHAMMAD SAJID MEHMOOD SETHI, J.: This judgment shall also decide ICA No. 23 of 2010, ICA No. 1030 of 2014, and ICA Nos. 38, 39, 42 to 44, 46, 49 to 52, 54, 56, 59, 122, 140, 936, 938 & 939 of 2015, as common questions of law and facts are involved in all these cases.
2. Through instant Intra Court Appeal, judgment dated 11.09.2014, passed by learned Single Judge in Chambers, has been assailed, whereby writ petitions filed by appellant and others were dismissed on the ground of being non- maintainable against private bank.
3. Brief facts of the case are that appellants, in all these cases, are retired employees of respondent-bank. They filed writ petitions seeking direction against respondent-bank to release the grade increment withheld in the completed year of 2011 and to recalculate their retirement / pensionary benefits on the basis of their last drawn basic pay and that arrears thereof may also be ordered to be released along with leave encashment etc. with markup accrued thereon till date of retirement. Learned Single Judge, after hearing arguments of learned counsel for parties, dismissed the writ petitions, being not maintainable against private bank vide impugned judgment dated 11.02.2014. Hence, this and connected appeals.
However , in connected ICA No.23/2010, judgment dated 15.12.2009, passed by learned Single Judge, has been assailed whereby learned Single Judge found no illegality in revised pay package ("RPP") in lieu of Life Pension and declined to issue direction for enforcement of agreement dated 15.11.1991, resultantly the petition in this context was held to be incompetent besides observing that writ petition was not maintainable against respondent- MCB.
4. Learned counsel for appellants contend that writ petitions were filed to enforce the right to retirement / pensionary benefits which is fundamental right to life under Article 9 of the Constitution of the Islamic Republic of Pakistan ("the Constitution") . They add that fundamental rights can be enforced against private persons under Article 199(1)(c) of the Constitution including the respondent bank as per the view taken by the Hon'ble Apex Court in the latest judgments, and the judgments relied upon by learned Single Judge are no longer valid law, in the light of observations rendered by Hon'ble Supreme Court of Pakistan in Pakistan Olympic Association v. Nadeem Aftab Sindhu (2019 SCMR 221), Suo Moto Action regarding non-payment of retirement benefits by the relevant departments and others (2018 SCMR 736) and Human Rights Commission of Pakistan and others v. Government of Pakistan and others (PLD 2009 Supreme Court 507) .
5. Conversely , learned counsel for respondents submit that issue in hand that whether writ petition is maintainable against a private bank has already laid to rest by the Hon'ble Apex Court in the case of Abdul Wahab and others v.
HBL and others (2013 SCMR 1383 ), and no writ can be issued when rule and regulations governing the terms and conditions of an employee are non-statutory . The impugned judgment being in line with the law laid down by the Hon'ble Apex Court is liable to be upheld under the law .
6. Arguments heard. Record perused.
7. In all the appeals in hand service grievance qua retirement / pensionary benefits has been agitated by the appellants against the respondent-banks, and the controversy of maintainability of a constitutional petition against a private bank has been laid to rest by the Hon'ble Supreme Court of Pakistan in the case of Abdul Wahab (supra), in which the Hon'ble Apex Court has clearly held that writ petition is not maintainable against a private bank as it does not qualify the status of a person / authority within the meaning of Article 199 of the Constitution for the reasons that after privatization of bank, it was a private institution having no concern with the affairs of Federation or Province, and so far as the authority and the role of the State Bank of Pakistan (SBP') is concerned, it is only a regulatory body for all the banks operating in Pakistan in terms of Banking Companies Ordinance, 1962 and such regulatory role and control of SBP does not bring a bank within the meaning of a person or authority performing functions in connection with the affairs of the Federation. Regarding the maintai nability of writ petition agitating service grievance of a person/employee whose services are not governed by statutory rules, Hon'ble Supreme Court has held as under in the case of Abdul W ahab (supra): "It is settled laws that, where a service grievance is agitated by a person/employ ee 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."
The above view is also supported by judgments of Hon'ble Supreme Court reported as Pakistan Airline Pilots Association and others v. Pakistan International Airline and another (2019 SCMR 278), Pakistan Defence Officers Housing Authority v. Mrs. Itrat Sajjad Khan and others (2017 SCMR 2010), Pakistan Telecommunication Corporation Ltd. Through Chairman v. Iqbal Nasir and others (PLD 2011 SC 132), PIA Corporation and others v.
Tanveer-ur-Rahman and others (PLD 2010 SC 676), Chairman State Life Insurance Corporation and others v.
Hamayun Irfan and others (2010 SCMR 1495), Raziuddin v. Chairman P.I.A.C. (PLD 1992 SC 531), Anwar Hussain v. Agricultural Bank (1992 SCMR 1112), K.D.A. v. Wali Ahmed Khan (1991 SCMR 2434), Sindh Road Transport Corporation v. Muhammad Ali G. Khokhar (1990 SCMR 1404), National Bank of Pakistan v. Manzoorul Hassan (1989 SCMR 832), Agricultural Development Bank v. Muhammad Sharif (1988 SCMR 597), Nisar Ahmad v. The Director, Chiltan Ghee Mill (1987 SCMR 1836), Anwar Hussain v. Agricultural Development Bank of Pakistan (PLD 1984 SC 194), Principal, Cadet College, Kohat v. Muhammad Shoab Qureshi (PLD 1984 SC 170), Evacuee Trust Property Board v. Muhammad Nawaz (1983 SCMR 1275), Muhammad Yousuf Shah v. P.I.A.C. (PLD 1981 SC 224), R.T.H. Janua v. National Shipping Corporation (PLD 1974 SC 146), Shahid Khalil v. P.I.A.C. (1971 SCMR 568), Lt.-Col. Shujauddin Ahmed v. Oil and Gas Development Corporation (1971 SCMR 566), Chairman of East Pakistan Development Corporation v. Rustam Ali (PLD 1966 SC 848), Zainul Abedin v. Multan Central Cooperative Bank Ltd. (PLD 1966 SC 445) and Lahore Central Cooperative Bank Ltd. v. Pir Saifullah Shah (PLD 1959 SC 210).
8. Learned Single Bench of this Court, after discussing the relevant case law, available at the time of passing impugned judgment, dealing with the subject, came to the conclusion that writ petitions are not maintainable against the respondent-bank. The question whether a legal entity or an authority is a person within the meaning of Article 199 of the Constitution can be determined through "function test" and for the purposes of resorting to the function test, two important factors are the most relevant i.e. the extent of financia l interest of the State/Federation in that legal entity and its dominance in the controlling affairs thereof. It is not shown by the appellants if the State/Federation has the majority of shareholding, or majority representation in the Board of Management of the respondent-bank. Learned Single Bench while arriving at the above findings took support from the case law reported as Abdul Wahab (supra), Rana Naveed Ahmad Khan v. Province of Punjab through Secretary LG and CD (PLD 2014 Lah. 436), 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 (PLD 2010 SC 676), Pakistan Red Crescent Society and anoth er v. Syed Nazir Gillani (PLD 2005 SC 806), Salahuddin v. Taj Muhammad Khanzad (PLD 1975 SC 244), Salahuddin and others v. Frontier Sugar Mills and Distillery Ltd. and others (PLD 1975 SC 244), Praga Tools Corporation v. Shri C.A. Imanual and others (AIR 1969 Supreme Court 1306), Pakistan Telecommunication Co. Ltd. v. Iqbal Nasir and others (2011 PLC (C.S.) 623), United Bank Limited Pensioners Welfare Association of Pakistan through President v. United Bank Limited through President and others (2011 CLC 831), UIMCB Ltd. through Authorized representative v. State Bank of Pakistan through Governor and others (2010 CLD 338), Abdul Rehman v. President Habib Bank Limited and others (2009 PLC (C.S.) 888) and Abdul Malik v. Habib Bank Ltd. (2008 CLC 339), Izhar Hussain and 18 others v. Khalid Sherwani and others (2004 PLC (C.S.) 945 ).
9. It has been argued by the learned counsel for the appellants that in terms of Article 199(1)(c) of the Constitution, this Court has the power to issue writ against any person including private person for enforcement of fundamental rights, and the Constitutional Petitions filed by the appellants were for the enforcement of pensionary benefits as held by the Supreme Court of Pakistan in the Suo Moto Action regarding non-payment of retirement benefits by the relevant departments and others (2018 SCMR 736). They have further attempted to fortify their case by referring to the case of Pakistan Olympic Association (supra) and Human Rights Commission of Pakistan (supra). In order to better appreciate the contention of the appellants, it is important to elucidate the real controversy involved in the afore-referred cases and the principle laid down by the Hon'ble Apex Court. Regarding pension, Hon'ble Apex Court in the Suo Moto Action (supra) observed as follows: "To subject a pensioner to a life of penury and impoverishment, is a clear violation of his fundamental rights to life and dignity as enshrined in Articles 9 and 14 respectively . The entitlement to pension is not a fundamental right but must be duly earned. Once that right has been perfected and earned, as has been by the petitioners, it is no longer a question whether they are entitled to the pension or not. The fundamental right that is to be enforced is that the pension given to such pensioners must be of a level which allows them to keep body and soul together ."
But on the maintainability of the constitutional petition against private banks, the Hon'ble Supreme Court noted as under: "We are happy to note that on being called upon and encouraged by us the boards of the banks showed generosity , magnanimity , great sense of corporate social responsibility to come up with a scheme whereby there will be an immediate and substantial increase in the minimum pension paid to the pensioners. The minimum amount voluntarily offered by the banks was Rs.5,250/- per month. The offer is without prejudice to the legal stance taken by the banks in this case and without prejudice to their objections as to the maintainability etc. of the present petitions. We therefore refrain from recording any finding on the merits of the case or the question of maintainability or the question whether a writ can be issued against a private/privatized bank/party/entity leaving these matters to be examined in some appropriate case." (Emphasis supplied)
It is quite evident that the neither the judgment passed in the case of Abdul Wahab (supra) has been overruled nor a constitutional petition is held maintainable against a private bank.
10. The second judgment cited by the learned counsel for the appellants is Pakistan Olympic Association (supra) to substantiate their plea that writ petition against a private person / body / entity is competent for enforcement of fundamental rights. It is deemed apt to reproduce the relevant observations in the said case read out by the learned counsel: "6. The key question is that whether the condition of "of or under the control of the Federal Government or of a Provincial Government" applies only to "any authority" or will it also apply to "any body politic or corporate" and we find that such condition only applies to "any authority" and not "any body politic or corporate". We hold so for the reason that a coma has been used between the two sets of phrases, i.e. "any body politic or corporate" and "any authority of or under the control of the Federal Government or of a Provincial Government", which differentiates the two; besides, the word "any" is used separately for both sets of phrases. In fact, the word "any" is also used with the third phrase/set of bodies, i.e. "Court or tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the Armed Forces of Pakistan", creating three distinct categories. Thus, in light of the foregoing interpretation, a writ is maintainable under Article 199(1)(c) of the Constitution against any person including the body politic or corporate for the purpose of enforcement of any of the Fundamental Rights conferred by the Constitution.
7. This interpretation is in consonance with the ratio of this Court in the judgm ent reported as Human Rights Commission of Pakistan and 2 others v. Government of Pakistan and others (PLD 2009 SC 507) wherein it was held that the amplitude of Article 199(1)(c) ibid is wider than the other parts of Article 199 of the Constitution and is not restricted to public functionaries only but could extend to private parties, as long as there is a question of enforcement of fundamental rights under the Constitution:- "35. ...the Jurisdiction of superior courts to enforce fundamental rights under Article 199(1)(c) of the Constitution is not merely exercisable against persons performing functions in connection with the affairs of the Federation or Province or a local authority but against any person or authority including a Government. Some of the fundamental rights by their very nature may be impaired by private persons and there is no embargo on the powers of the High Court to issue such directions as may be appropriate for enforcement of such rights."
Furthermore, in Abdul W ahab's case (supra) it was held as under:- "8. ...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/persons of the country and thus the regard, security and the enforcement of these rights is one of the primary duties of the State and its institu tions at all the levels...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"..."
But in this case as well, the Hon'ble Apex Court neither overruled the judgment passed in the case of Abdul Wahab (supra) nor was the judgment of Hon'ble High Court upheld wherein writ was issued against a private Association.
Relevant portion of the judgment passed by Hon'ble Supreme Court is as under: "7. In other words, Article 199(1)(c) supra is contingent on the fact that the matter should involve the enforcement of fundamental rights guaranteed under the Constitution. In the instant case, the fundamental rights being relied on by the learned counsel in making such argument are Articles 9, 14, 17, 18, and 25 of the Constitution, all of which do not seem relevant in the instant matter . We do not find that the internal functioning of the Association, particularly the method of elections of certain posts thereof, deprives persons of the right to life or liberty (Article 9 of the Constitution), violates the dignity of man (Article 14 of the Constitution), curtails the right to freedom of association (Article 17 of the Constitution), trade, business or profession (Article 18 of the Constitution), or is discriminatory in any manner whatsoever (Article 25 of the Constitution). Therefore, we do not find that a writ is maintainable against the Association under Article 199(1)(c) ibid."
11. Reliance on the case of Human Rights Commission of Pakistan (supra) by the learned counsel for the appellants is also not of much help to the appellants' case as in that case writ was issued against private persons for recovery of bonded labour where some persons were detained by private land owner and violated their fundamental rights. Relevant observations of the Hon'ble Supreme Court in the said case are as under: "33. The reach of clause (c) however is wider . It not merely enables a Court to declare an action of a State functionary inconsistent with fundamenta l rights to be unlawful but also enables the Courts to practically enforce such rights by issuing appropriate directives as is evident from its language. Accordingly , this Court after having earlier held that the fundamental rights guaranteed by Article-17 included the right of a political party to contest elections as a collective entity was able to issue mandatory directives in the case of Benazir Bhutto v. Federation of Pakistan reported in (PLD 1989 SC 66) to the election authorities to amend the election rules to provide for the same under its powers to enforce fundamental rights under Article-184(3) of the Constitution. Moreover , such directives could be issued to any person including the Government. In the case of Peoples Union for Democratic Rights v. Union of India reported in (AIR 1982 SC 1473) it was held that though some of the fundamental rights imposed negative obligation on the part of the mate not to encroach upon individual's liberty etc., there were others, which were positively enforceable against the whole world. We are therefore clearly of the view that' the High Court has plenary powers to positively enforce fundamental rights not merely against public authorities but even private parties. Accordingly direction for positive enforcement of fundamental .rights against private parties could only be given by the High Court in respect of rights guaranteed, inter alia, by Articles 11, 22 etc. which might in most cases require enforcement against such parties.
34. Another small point arising from the observations of the High Court in para-15 may also be dealt with. It seems that their lordships were also swayed by the consideration that there was no reliable evidence of physical imprisonment with the persons allegedly detained. In the above context we are of the view that the words detention or unlawful custody do not merely relate to physical confinement in a small place. In a number of cases decided by the Lahore High Court i.e. Rao Mahroz Akhtar v. The District Magistrate Dera Ghazi Khan and the Province of West Pakistan (PLD 1957 Lahore 676), (ii) Ch. Muhammad Anwar v. Government of West Pakistan (PLD 1963 Lahore 109) (iii) Begum Nazir Abdul Hameed v. Pakistan (Federal Government) through the Secretary , Interior , Division Islamabad and another (PLD 1974 Lahore 7) and (iv) Major General (R.) Ghulam Jilani v. Federal Government (PLD 1975 Lahore 65) it was held that any restrain on the part of a person would be actionable under Article 199 of the Constitution. In the last case the petitioner was only restrained from leaving the municipal limits of Lahore without permission from certain authorities. Moreover in almost all cases where jurisdiction under 491, Cr.P.C. relating to custody of minor has been exercised there is rarely an allegation of confinement within particular four walls. We find no reason to take a different view and would hold that any form of restraint on liberty is actionable both under Article 199 of the Constitution and section 491, Cr .P.C."
12. Needless to observe here that constitutional petition is maintainable under Article 199(1)(c) of the Constitution against any person including the body politic or corporate for the purpose of enforcement of any of the Fundamental Rights conferred by the Constitution but, as observed by the learned Single Bench, claim of the appellants (employees of a private bank) 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 conditions of service contract, governed under non-statutory rules, and remedy of constitutional petition under Article 199 of the Constitution is pre-eminently a public law remedy and is not generally available against private wrongs. Constitutional jurisdiction of High Court is 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 rights as of public duty, constitutional petition is not maintainable for resolution of such private dispute.
13. Undoubtedly , directions under Article 199(1)(c) of the Constitution can be made to any person, which in appropriate circumstances can include a private person, for enforcement of Fundamental Rights conferred by Chapter 1 of Part II of the Constitution in cases involving (i) Bonded or forced labour; (ii) Wrongful detention; (iii)
Restoration of liberty and freedom of movement; (iv) Likelihood of any hazard to life by pollution; but enforcement of any right qua service benefits arising out of non-statutory rules or contract is not amenable to writ jurisdiction as rightly held by the learned Single Bench in the impugned judgment.
14. The judgment passed by learned Single Judge is well reasoned and supported by the judgments passed by Hon'ble Supreme Court of Pakistan, warranting no interference by us in exercise of appellate jurisdiction.
15. In view of the above, this appeal, along with connected ICAs, being devoid of merits, is hereby dismissed.