JAWAD HASSAN, J.---Through this Intra Court Appeal, filed under section 3 of the Law Reforms Ordinance, 1972 (the "Ordinance"), the Appellant has called in question the legality of order dated 13.06.2016 passed in W.P.
No,9201/2016 by the learned Single Judg e-in-Chamber , whereby the constitutional petition filed by the Respondent No,1 was disposed of with the following directions: "Let a copy of this petition along with all annexures be sent to Respondent No,3 who shall look into the matter and shall see that the same is decided in accordance with law, relevant rules and policies applicable thereto after associating the Petitioner and pass a speaking order according to Section 24-A of the General Clauses Act, 1897.
It is clarified that the order of this Court would not be construed as to the authenticity or merits of the case and this Court feels confident that the matter would be decided expeditiously , preferably within eight weeks from the receipt of certified copy of this order . Learned Law Officer shall ensure compliance of this order . With this observation, this petition stands disposed of."
A. FACTS OF THE CASE
2. The facts tersely revealed from the Appeal are that the Respondent No,1 was an employee of the Appellant- United Bank Limited who remained in service from 29.01.1976 and retired on 18.04.2012 after completion of his age of superannuation. During the servic e of the Respondent No,1, the Board of Directors (the "Board") of the Appellant issued a Staff Circular No,943/2001 dated 18.07.2001 under which the Board provided two options to all the employees of the Appellant viz: (i) that the employees of the Appellant Bank will get the pension scheme and upon the retirement or death, the employees would get pension benefit calculated on the basic of their frozen basic pay; or (ii) the employees opt out of the pension scheme and to join provident fund and gratuity scheme. The Respondent No,1 also obtained the first option along with some other employees and enjoyed the same. In October , 2002 the Government decided to privatize the Appellant under the "Agreement for Sale of Shares and Transfer of Management of United Bank Limited" (the "Agreement") and the Appellant since then has been functioning as a limited company . The said agreement was duly executed on 19.10.2002 which also validates all the benefits and facilities which were given in the Staff Circular . Clause 5.2(a) of the Agreement clearly stipulates that all existing benefits and facilities being enjoyed by the employees and staff members of the Appellant shall not be changed, varied or discontinued to the detriment of the staff members and employees by the purchaser , for a minimum period of (1) one year from the completion date and thereafter only with the applicable provisions of law and contracts of such employees and staff members. Therefore, all the benefits and facilities which were availed by the employees of the Appellant are fully protected and still valid. The Respondent No,1 after lapse of four years from his retirement filed a W.P. No,9201/2016 before this Court challenging the said Staff Circular dated 18.07.2001 which was disposed of with the above directions. Hence, this Appeal.
B. APPELLANT'S SUBMISSIONS
3. Learned counsel for the Appellant inter alia contended that the impugned order is against the law and facts; that while passing the impugned order the learned Single Judge-in-Chamber has not taken into consideration the fact that Respondent No,2-State Bank of Pakistan has no authority to decide the pensionary matters of the banking employees as it does not have any financ ial interest and is only a regularity body for all banks operating in Pakistan including the Appellant in terms of Banking Companies Ordinance, 1962 (the "Ordinance of 1962"); that there is no provision provided under the Ordinance of 1962 which empowers the Respondent No,2 to decide the matters with respect to pensionary benefits of banking employees of the banking companies; that the learned Single Judge-in- Chamber has not appreciated the law on the point in its true perspective; that the Respondent No,2 cannot interfere into the disputes between two private persons regarding the terms and conditions of service contract governing under the non-statutory rules; that although under Section 41 of the Ordinance of 1962 the Respondent No,2 can issue directions to the banks but such directions would only be issued to protect the interest of banking company including its depositors and to secure proper management of company; that writ petition was not maintainable as the alternate remedy was available to the Respondent No,1; that factual controversy was also involved in the matter , as such the writ was not competent as well. To fortify his contentions, learned counsel has placed reliance on the case titled Suo Motu Action Regarding Non-paymen t of Retirement Benefits by the Relevant Department and others Suo Motu Case No,20 of 2016 (2018 SCMR 736) and Abdul Wahab and others v. HBL and others (2013 SCMR 1383 ).
C. RESPONDENT NO.1 SUBMISSIONS.
4. On the other hand, learned counsel for the Respondent No,1 vehemently opposed the arguments advanced by the learned counsel for the Appellant and prayed for dismissal of the Appeal on the ground that the impugned order has been passed strictly in accordance with law; that the writ was filed seeking direction to the Appellant through the Respondent No,2 which can give direction under Section 41 of the Ordinance of 1962 in the public interest to; secure the proper management of the bank. Learned counsel has placed reliance on the case. titled Sultan Shahryar Khan v . Federation of Pakistan and 3 others (W.P. No,304/201 1).
5. We have heard the arguments of both the sides and perused the record.
D. MOOT POINTS
6. After hearing the parties at length and going through the record, following moot points arising out of the instant Intra Court Appeal require determination of this Court:
1. Whether the Respondent No,2-State tank of Pakistan can give direction to banks on the internal service matters of their employees under section 41 of the Ordinance of 1964?
2. Whether a direction can be issued to the Appellant-the UBL which is not a person under Article 199(5) of the Constitution?
7. The Appellant has challenged the impugned order by stating that the Respondent No,2-State Bank of Pakistan cannot decide the matters relating to service between the Appellant-UBL and its employees. For the sake of brevity the relevant Section i,e, 41 of the Ordinance of 1962 in this regard is reproduced below and is as follows:
41. Power of the State Bank to give directions.---( 1) Where the State Bank is satisfied that--
(a) in the public interest; or
(b) 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 interests of the banking company; or
(c) to secure the proper management of any banking company generally; it is necessary to issue directions to banking companies generally or to any bankin g company in particular , it may, from time to time, issue such directions as it deems fit, and the banking companies or the banking company , as the case may be, shall be bound to comply with such directions.
(2) The State Bank may, from time to time, issue direction, guidelines and instructio ns with respect to activities and operations of banks and the institutions mentioned in section 3A as may be deemed necessary by it for carrying out purposes of this Ordinance and matters ancillary thereto.
(3) The State Bank may, on representation made to it or on its own motion, modify or cancel any direction issued under subsection (1), and in so modifying or canceling any direction may impose such conditions as it thinks fit, subject to which the modification or cancellation shall have effect."
8. From the above, it is clear that the State Bank cannot decide the service matters between a Bank and its employees and therefore, cannot A give direction to the Appellant regarding its internal matters of service. In this regard the mechanism has already been given under various laws and they are dealt with by various Courts viz: Labour Courts and NIRC etc. Reliance can be placed on the case titled Noor Badsha v. United Bank Limited through President and others (2015 PLC (C. S.) 468) wherein it has been held as follows: "Resolution of dispute of private character . Scope. Petitioners were retired employees r of a Bank in different grades. Withholding of grade increment in the completed year and recalculation of retirement/pensionary benefits.
Functions of State Bank of Pakistan. Nature. Functional test for determining the status of the employer Bank.
Effect. Plea of the Bank was that same being a private bank was not performing functions with respect to affairs of Federation, Province or any other statuto ry body and that the employees of the bank were not governed under the statutory rules, therefore, the constitutional petitions were not maintainable. Validity . Employer Bank being a private entity and not performing functions in connection with Province; Federation or any statutory authority , Constitutional petitions were not maintainable. Where service grievance was agitated before High Court in terms of Art. 199 of the Constitution, by a person/employee, who was not governed by statutory rules of service, such petition would not be maintainable. Service Rules of Employer Bank being not statutory , constitutional petition was not maintainable for enforcement of said Rules. Dispute betwe en the petitioners and the bank was not covered under the provisions of Banking Companies Ordinance, 1962 and that such regulatory role and control of State Bank of Pakistan did not clothe the Bank with the status of "person" or "authority" performing function in connection with affairs of Federation. Petitioners had not referred any statutory provision under which the State Bank of Pakistan, being a regulator , had a statutory duty and obligation to direct the private Bank to perform functions in respect of its employees' terms and conditions of servic e. State Bank of Pakistan having not failed to perform any of its statutory obligation towards petitioners (employees) was not a necessary party in the petition and no direction could be issued to State Bank of Pakistan for relea se of increments or recalculation of pensionary benefits of the Petitioners.
Constitutional petitions being incompetent and not maintainable were dismissed."
In another case titled MCB Bank Limited through Authorized Representative v. State Bank of Pakistan through Governor and 2 others (2010 CLD 338 ) it has been held as under: "5. 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 contradistinguishes 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 exercise 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 angle does not bring the matter within the realm of the noted provision.
Subsection (2) of section 41 of the Ordinance, also does not come to rescue 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."
9. So far as the second moot point is concerned, in this regard it is unequivocal from the Article 199(5) of the Constitution that a person includes any body Politic or Corporate, any Authority of or under the control of the Federal Government or of a Provincial Government. For the sake of clarity , the said Article is reproduced below 'and is as follows: "(5) In this Article, unless the context otherwise requires; 'person' includes any body Politic or Corporate, any Authority of or under the control of the Federal Government or of a Provincial Government, and any 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;"
10. The Hon'ble Supreme Court of Pakistan has time and again tried to define the concept of 'person' for the purposes of maintainability of a petition under Article 199 of the Constitution. In this regard the Hon'ble Supreme Court of Pakistan in Abdul W ahab case supra has held as under: "It is an admitted position that the Bank has been privatized and the majority shareholding thereof has been acquired and is vested in Agha Khan Foundation, there also is no discord that the Board of Management of HBL is predominantly represented by the said foundation. However , in order to bring the Bank within the purview and 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 purposes 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, the extent of financia l 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 ."
[Emphases added] 11. In view of the above situation, we are of the considered view that the Resp ondent No,2 cannot decide the matters with respect to pensionary benefits of banking employees of the banking companies and the writ against the Appellant is not maintainable. Cons equently , the instant Appeal is allowed and the impugned order dated 13.06.2016 is hereby set aside.