ABID AZIZ SHEIKH, J. This Intra Court Appeal under Section 3 of the Law Reforms Ordinance, 1972 (Ordinance 1972) has filed against the order dated 16.12.2016, passed by the learned Single Bench of this Court in Writ Petition No.39434/2016.
2. Brief facts are that respondent No.1 was serving as Assistant Vice. President with the appellant Bank, however, his services were terminated vide order dated 27.10.2016. The respondent No.1 being aggrieved filed departmental representation before respondent No.2 (State Bank of Pakistan), however, said representation was not decided. The. respondent No.1 filed Writ Petition No.39434/2016 in which vide impugned order dated 16.12.2016, direction was issued to respondent No.2 to decide the application of respondent No.1 (petitioner in Writ Petition No.39434/2016) through speaking order, within a period of four weeks. The appellant being aggrieved has filed this appeal.
3. Learned counsel for the appellant submits that appellant being a private bank, the Constitutional petition against the appellant was not maintainable. Further submits that State Bank of Pakistan has no jurisdiction regarding the issues of employees of private banks such like appellant, therefore, impugned direction could not be issued to respondent No. 2.
4. Learned counsel for the contesting respondent, on the other hand, submits that services of respondent No.1 were terminated on the allegation of breach of trust and embezzlement of funds, therefore, State Bank of Pakistan has jurisdiction to adjudicate the matter.
5. Arguments heard. There is no dispute that appellant bank (UBL) was originally a government owned and controlled bank, however, in the year 2002, the UBL was privatized and since then functioning as limited company. It is also not disputed that after privatization, majority of its shares have been acquired and vested to private parties, therefore. State/Federation has neither any financial interest in the UBL nor it controls the affairs thereof. Thus, the appellant Bank being a private Bank is not amenable to the Constitutional jurisdiction under Article 199 of Constitution of Islamic Republic of Pakistan, 1973 (Constitution). This legal question has already been determined by this Court in the case of Noor Badshah v. United Bank Limited through President and 3 others (2015 PLC (C. S) 468) where it is held as under:- "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, 1 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 'Wah" and others v. HBL and others (2013 SCAM 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, 7962 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(1)
(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".
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 of 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 any 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 Izhar 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. Sved 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.
The same view was also expressed by the learned Division Bench of this Court in the case of United Bank Limited v. Muhammad Manzoor and others (2019 CLD 595).
6. The next question is that when constitutional petition was not maintainable against the appellant/Bank, whether impugned direction could be issued to State Bank of Pakistan to decide the representation against termination order of the employee of the appellant/Bank. In answer to this question, suffice it to note that State Bank is a regulatory authority for all banks operating in Pakistan and its functions are contemplated under Banking Companies Ordinance, 1962 (Ordinance, 1962), with respect to the activation and operation of banks and for carrying out purpose of Ordinance, 1962 and matter ancillary thereto. There is no statuary duty and obligation of State Bank of Pakistan in the Ordinance, 1962 to direct a private bank to perform its functions in respect of its employees terms and conditions of service. The same question came up in Noor Badshah's case (supra), where after detailed discussion this Court held that State Bank of Pakistan cannot issue a direction in respect of the service matters to the private Banks. Relevant discussion in the said judgment is re-produced as under:- "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. increment 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 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 M. C. Bank 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 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 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, 1 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 in Abdul Wahab 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.
7. The learned Division Bench of this Court in the case of United Bank Limited v. Muhammad Manzoor and others (supra), in similar circumstances, held that State Bank cannot decide the matter with respect to pensionary benefits of employees of Banking Companies and therefore, the direction could not be issued to State Bank by the learned Single Bench. The relevant observations are re-produced as under:- `In view of above situation, we are of the considered view that the respondent 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. Consequently, the instant Appeal is allowed and the impugned order dated 13.06.2016 is hereby set aside."
8. The same view was also expressed by learned Sindh High Court in the case of Abdul Rehman v.
President Habib Bank Limited and others (2009 PLC (C.S) 888), learned Islamabad High Court in United Bank Limited Pensioners Welfare Association of Pakistan through President v. United Bank Limited through President and 5 others (2011 CLC 831) and learned Balochistan High Court in Abdul Malik v. Habib Bank Ltd. through President Habib Bank, Karachi and 3 others (2008 CLC 339).
9. In view of law discussed above and settled in afore-noted judgments, it is manifest that writ petition can only be filed for the enforcement of fundamental rights and in order to obtain a writ or an order or direction in the nature of mandamus, the petitioner has to satisfy the Court that he has a legal right towards the performance of a legal duty by the party against whom mandamus is sought and such order or direction can only be granted subject to provision of relevant law. In the present case, neither appellant was amenable to Constitutional jurisdiction being a private bank nor State Bank of Pakistan had any statutory role or jurisdiction in respect of terms and conditions of service of its employees of private Banks like UBL, therefore, the direction to decide the representation could not be issued by the learned Single Bench.
10. In view of above discussion, this appeal is allowed and impugned order dated 16.12.2016 is set aside.