1. ' SAIYED SAEED ASHHAD, J.---In the aforesaid two Constitutional petitions the petitioners have sought the following identical reliefs:-- "(a) Declare that section 11(4)(5) and (8) of the impugned amendment Act being ex facie discriminatory is void.
(b) That all orders taken in pursuance of the policies of removal be declared as without lawful authority as such void.
(c) That the petitioners should be given an opportunity to opt for the golden handshake scheme at will or in the alternative be paid the amount they would have received at the age of superannuation.
(d) That the President of Habib Bank Limited be restrained from formulating further such policies to render thousands jobless and induct in the Bank personnel from outside at outlandish salary package.
(e) Any further relief that may be permissible in the circumstances of the case."
2. ' The brief facts requisite for the disposal of the aforesaid Constitutional petitions are that the petitioners were in the service of M/s. Habib Bank Limited since a long time. The services of the petitioners were terminated with effect from 23-8-1997 on the ground that either they had completed 25 years of service or were 55 years of age. It was further submitted by the petitioners that M/s. Habib Bank Limited was a private Bank owned by Habib Group which was nationalised in 1974 under Banking Nationalization Act, 1974 (hereinafter referred to as the Act of 1974) which postulated under section 9 a Banking Council by the name of Pakistan Banking Council with the functions to formulate policy guidelines for Banks; laying down performance criteria for Banks; and taking steps ensuring their observance. The general provisions relating to the management and working of the Banks were contained in section 11 of the Act 1974 whereby every nationalized Bank was to have an Executive Board headed by a Chairman, having amongst others function of superintendence of all the affairs and business of the Bank. It was further averred on behalf the petitioners that the Chairman of the Executive Board acted as a check on the exercise of powers by the President and the Executive Board which did not have unfettered powers to make decisions relating to the management of the Bank and further that the President could not take a policy decision without the approval of the Executive Board nor.The Executive Board had the power to take any action in the form of a policy decision without the approval of the Pakistan Banking Council.
3. However, it was averred that the Legislature passed Banks Nationalization (Amendment) Act, 1997 (hereinafter referred to as the Amending Act of 1997) by which far-reaching amendments/ changes were made in the Act of 1974 whereby Pakistan Banking Council was dissolved and general supervision and management of the affairs and business of the Bank including overall policy making/ decision was vested in the Executive Board headed by the President as its Chief Executive. The petitioners further averred that all the powers hereto before vesting and exercisable by the Pakistan Banking Council were vested in the Executive Board headed by a Chairman and in his absence the President, including making of the policies relating to the appointments and removal of officers and employees. The petitioners submitted that section 11(5)(iii) of the Amending Act of 1997 conferred arbitrary powers on the Executive Board of hiring and firing officers and employees in accordance with a policy decision laying the criteria or classification of the officers/employees to be removed arbitrarily and in exercise of unbriddled powers. It is the case of the petitioners that after conferment of powers on the Executive Board and in the absence of a Chairman having been appointed or elected as per section 11(7) of the Amending Act of 1997 to Head the Executive Board, the management of Habib Bank Limited issued three policies under the garb of downsizing the bank as a result of which a number of officers/ employees who were 58 years of age or above were forced to go on leave handing over the charge to their immediate juniors and 1078 employees/officers who had either completed 25 years of service or had attained the age of 55 years were retired on 23-8-1997. It was further submitted that by such arbitrary decision of the management of Habib Bank the affected officers/employees were deprived of five years' salaries together with the benefits and perquisites attached to their salaries as well as the pension and other retirement benefits to which they would have been entitled to after putting in further five years of service. The further grievance of the petitioners is that the object of the policies formulated by the management of Habib Bank was to get rid of the officers/employees who had been appointed in the Bank prior to its nationalization in 1974; that on retirement of above 1078 officers/employees, every zone was without a Zonal Chief and almost every important branch was without a manager. This was also stated to be against the policy which is usually followed in cases of genuine downsizing or retrenchment according to which the meritorious and experienced officers/employees are retained and the principles of first come first go which is to be adopted in such situation was grossly violated. The petitioners submitted that the aforesaid decisions were mala fide, in excess of jurisdiction and with ulterior motives which was evident from the fact that three of the officers terminated in pursuance of the aforesaid decisions were re-employed. The petitioners further submitted that action of management of Habib Bank was violative of Article 8 of the Constitution of Pakistan, was violative of principle of natural justice as no show-cause notices were issued to the petitioners/terminated officers before sending them on leave and/or terminating them which was also violative of the law laid down by the Federal Shariat Court and the Supreme Court of Pakistan, that the criteria for terminating officers/employees who had completed 25 years of service or had attained 55 years of age was without any rational and was arbitrary, that the Executive Board of Habib Bank did not pass or endorse the above orders, that they were violative of Articles 9 and 18 of the Constitution of Pakistan as they deprived the petitioners of their means of sustenance, that the impugned orders were discriminatory and arbitrary and as such violative of Article 25 of the Constitution of Pakistan inasmuch as the management of Habib Bank Limited had removed most experienced staff without consideration of the meritorious services rendered by them.
4. ' As the petitioners failed to obtain any positive response or justice from any other quarter they approached this Court by means of the aforesaid Constitutional petitions praying for the reliefs herein-above mentioned.
5. ' We have heard the arguments of Ms: Tehnyat Farooq, Advocate for the petitioners, Mr. Naim-ur- Rehman, the learned Dy. A.-G., and Mr. Makhdoom Ali Khan, Advocate for respondents Nos,2 and 3, have perused the material on record, the provisions of the relevant laws applicable to the facts and circumstances of the two petitions and the case-law relied upon by the aforesaid learned counsel in support of their respective arguments, Mr, Naim-ur-Rehman, adopted the arguments advanced by Mr. Makhdoom Ali Khan.
6. Mr. Makhdoom Ali Khan, learned counsel for respondents Nos,2 and 3 raised a preliminary objection with regard to the maintainability of the aforesaid two petitions on the ground that after the addition/incorporation of section 2-A in the Service Tribunals Act by the Service Tribunals (Amendment) Act of 1997 effective from 10-6-1997, the petitioners have become civil servants for the purpose of Civil Servants Act and are required to invoke the jurisdiction of the Service Tribunal in respect of any grievance or violation relating to the terms and conditions of their service. He further submitted that admittedly petitioners have been terminated/removed/retired from the service of M/s. Habib Bank Limited and the issue of termination/retirement/removal fell within the purview of the terms and conditions of services of the petitioners and by virtue of provisions of Article 212(a) of the Constitution of Pakistan, the petitioners were not entitled to invoke the Constitutional jurisdiction of this Court for redress of their grievances. In support of his above, contention Mr. Makhdoom Ali Khan has referred us to the following authorities:--
(1) United Bank Limited and others v. Ahsan Akhtar and others, reported in 1998 SCMR 68. In this case the Supreme Court while considering the question of maintainability of a Writ Petition by an employee of a Bank for wrongful termination of service observed that in the absence of any provision of statute or statutory rules, the relationship between a corporation and its employee was that of a master and servant and the appropriate remedy available to the terminated employee would be that of a suit for damages. The Hon'ble Supreme Court vehemently rejected the contention raised on behalf of the United Bank Limited employees that the rule of master and servant was no longer applicable after the judgment of the Supreme Court in the case of Mrs. Anisa Rehman v. PIAC and others reported in 1994 SCMR 2232. The observations made by the Supreme Court in this case clearly lead to an inference that an employee of a corporation would not be entitled to invoke Constitutional jurisdiction of this Court in respect of any grievance relating to the terms and conditions of his service.
(2) Ghulam Mustafa Khairati v. Federation of Pakistan, reported in 1998 PLC (C.S.) 1078. In this case the Supreme Court was pleased to hold that after the amendment in the Service Tribunals Act, 1973 by the Amendment Act XVII of 1997 that section 2-A incorporated in Service Tribunals Act had retrospective effect and an employee of a Bank after the aforesaid amendment could approach the Service Tribunal alone for redress of his grievance relating to termination of service. The Supreme Court further held that the High Court was justified in disposing of the Appeal with the direction that the petitioner should approach Service Tribunal. The Supreme Court in deciding the aforesaid case relied on the pronouncement made in the case of Muhammad Afzal v. KESC, Civil Appeal No, 1513 of 1998.
(3) S. Aftab Ahmed v. Karachi Electric Supply Corporation, C.P. No,1305-K of 1997, decided on 16-4- 1998. This petition alongwith several other petitions filed by the employees of M/s. Pakistan International Airlines, Pakistan State Oil, Habib Bank Limited, Pakistan Steel, Agricultural Development Bank of Pakistan and others were dismissed. The brief facts of this case are that the petitioners Aftab Ahmed and several other employees of the aforesaid corporation/Banks filed appeals before the Service Tribunal after abatement of their Constitutional petitions pending in the High Court on account of the incorporation of section 2-A in the Service Tribunals Act. The Service Tribunal dismissed the appeals on the ground that the cause of action to the petitioners/appellants had accrued prior to the amendment and they could not approach the Service Tribunal for any wrongful act or grievance prior to the aforesaid amendment. The petitioners filed the aforesaid Constitutional petitions in the Supreme Court against the order of the Service Tribunal and the Supreme Court by its aforesaid judgment observed that the Service Tribunal was not justified in dismissing the appeals of the petitioners as they having been declared civil servants by the newly incorporated section 2-A, their remedy for any wrongful act or grievance relating to the terms and conditions of their service lay before the Service Tribunal and not the High Court. The Hon'ble Supreme Court directed the Service Tribunal to dispose of the appeals filed by the petitioners on merits. The pronouncement made by the Hon'ble Supreme Court in the aforesaid cases leave no room for doubt that an employee of a corporation, a company owned by the Federal Government or a nationalized Bank is to be treated as a civil servant with regard to the forum to which he has to approach for redress of his grievances relating to the terms and conditions of his service and that such forum is the Service Tribunal and a Constitutional petition challenging the wrongful dismissal/ termination or any other illegal action of the employer relative to the terms and conditions would not authorise him to invoke the Constitutional jurisdiction of this Court.
7. ' Ms. Tahnyat, learned counsel appearing for the petitioners did not controvert the arguments of Mr. Makhdoom Ali Khan, relating to the status of the petitioners and conceded that after addition/insertion of section 2-A in the Service Tribunals Act, the petitioners have acquired the status of civil servants for the purposes of Civil Servants Act. She also conceded that the issues and the questions raised or agitated by them in this petition fall within the terms and conditions of their service and normally the petitioners would have to approach the Service Tribunal for the redress of their grievance relating to arbitrary, mala fide, and illegal retirement/termination/removal from the service of M/s. Habib Bank Limited. She, however, submitted that the petitioners in addition to have challenged or questioned the policy decisions framed by the management of Habib Bank Limited and the orders in pursuance thereto retiring/removing/ terminating the petitioners from the service of Habib Bank Limited have also challenged the conferment of excessive and unlimited power on the Executive Board and its. President by the amended section 11(5)(iii) of the Act of 1974. It was submitted by her that amendments brought in the Act of 1974 by the Amending Act of 1997, unfettered, unlimited and excessive powers have been conferred on the Executive Board and the President of the Banks for formulation of the policies relating to the management, governance and running of the business of the Bank as well as the appointments and removal of the officers/employees which the Legislature had not intended to confer on the Executive Board and the President in promulgating the Act of 1974, which is evident from the fact that a body by the game of Pakistan Banking Council was established with a view to frame the policies for the management, governance and running of the business of the Banks including the policies for appointments and removal of the officers/employees so that uniform policy was in existence for all the nationalized banks and further that the Executive Board and its President was kept within limits and not allowed to frame arbitrary, mala fide, and illegal policies. She further submitted that the that the Supreme Court in this case expressed the view that even when the case involved vires of a particular service rule or a notification, his remedy, if any, was by invoking the jurisdiction of Service Tribunal. In the case of Nan Ahmed Khurram v. Government of Pakistan and others (PLD 1980 SC 153), the Supreme Court after taking into consideration the views expressed by the Sindh High Court, the Lahore High Court and the Balochistan High Court in the case of lqan Ahmed Khurram v.
8. Government of Pakistan and others (PLD 1979 Karachi 610); Fazel Ellahi Aijaz v. Government of Punjab and another (PLD 1977 Lahore 549) and Muhammad Hashim Khan v. Government of Balochistan and others (PLD 1976 Quetta 59), expressed views as under:-- ' ........................ In resolving the first controversy the High Court relied on the case of Muhammad Hashim Khan v. Government of Balochistan and others, and Fazal Ellahi Aijaz v. Government of Punjab and others, held that the Service Tribunal was competent to examine the vires of the rules and determine its validity as by Article 212 of the 1973 Constitution and section 4 of the Service Tribunals Act 1973, it has been given exclusive jurisdiction to do so "
9. ' A Full Bench of this Court in the case of Abdul Bari v. Government of Pakistan and others, reported in PLD 1981 Karachi 290 relying on the case of Yamin Qureshi, reported in PLD 1980 SC 22, made the following observations:-- "Such being the scope of the powers of the Service Tribunal we have no manner of doubt that all the grounds of attack urged before the Tribunal including the grounds of mala fides, ultra vires and coram non judice are within the jurisdiction of the Service Tribunal to determine and, therefore, it follows that the High Court will have no jurisdiction to grant relief on those grounds in respect of orders appealable before the Service Tribunal."
10. The aforesaid observations made by the Full Bench of this Court in the case of Abdul Bari were fully endorsed by the Hon'ble Supreme Court while deciding the case of Asadullah Rashid v. Haji Muhammad Muneer and others, reported in 1998 SCMR 2129 and it will be appropriate to reproduce the relevant portion from the said judgment as under:-- "Constitutional petition under Article 199 of the Constitution is not maintainable by a civil servant in relation to any matter connected with the terms and conditions of service in respect whereof the Service Tribunal has jurisdiction. In view of Article 212 of the Constitution of Pakistan. Orders, even if mala fide, ultra vires or coram non judice, fell within the ambit of Service Tribunal and jurisdiction of Civil Courts including High Court is ipso facto ousted as result of barring provision of Article 212 of the Constitution."
11. ' From a perusal of the case of Pir Sabir Shah v. Shad Muhammad Khan, reported in PLD 1995 Supreme Court 66 relied upon by Ms. Tahnyat Farooq it is to be observed that the pronouncement made therein relative to the jurisdiction of a Tribunal to examine the legality, vires and mala fides of a Statute does not help the cause of the petitioners. On page 141 Ajmal Mian, J. (now the Honourable Chief Justice of the Supreme Court) writing the judgment on behalf of minority made certain observations which in our opinion will be useful in deciding the controversy in issue and the same are reproduced as under:-- ' I may point out that there is distinction between a provision of a statute, which creates a Special Tribunal and a provision of such statute which specifies disputes/ matters over which such a Special Tribunal will have jurisdiction. The Special Tribunal so created cannot decide that the provision under which it has been created is ultra vires the Constitution or that its appointment/constitution is defective or invalid. But, it will have jurisdiction to decide the questions, whether it has jurisdiction over the matter brought before it in terms of the relevant provisions of the statutes or whether the parties against whom the case has been filed are amenable to its jurisdiction..."
12. ' On the same page it was further observed as under:-- ' ....I may also observe that the reason found favour with the learned Judges of the Division Bench in Quetta case of Muhammad Hashim Khan and others (supra) that since the Tribunal under section 5 of the Balochistan Service Tribunals Act (V of 1974) is deemed to be a Civil Court under Civil Procedure Code for the purpose of deciding any appeal before it, it will have jurisdiction as any other Civil Court or Tribunal to examine, whether or not a law is void by reason of its conflict with Fundamental Rights, in my humble opinion, does not seem to be in consonance with well- established jurisprudential distinction between a Special Tribunal created under a special law and a Civil Court having plenary jurisdiction. Cornelius, C.J. And Hamoodur Rehman, J. Seemingly had in mind the above distinction while making observation -in the case of Mr. FazIul Quader Chowdhry (supra) that the Chief Election Commissioner had no power to declare a law invalid....
13. ' On pages 142 and 143 the following observations appear:-- ' .... However, one can urge that since clause (1) of Article 212 provides that, 'Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of (a) matters relating to the terms and conditions of persons (who are, or have been) in the service of Pakistan, including disciplinary matters', a Service Tribunal has jurisdiction to examine the question of vires of a law keeping in view the fact that under clause (3) of the above Article an appeal involving a substantial question of law of public importance against an order of a Service Tribunal lies to this Court with the leave. Even if I were to accept above contention, a Service Tribunal cannot examine the vires of the relevant provision of the statute under which it has been created. Additionally, it may be pointed out that clause (1) of Article 212 of the Constitution does not cover the Election Commission or the Chief Election Commissioner, nor there is any other corresponding provision in the Constitution excluding the jurisdiction of the superior Courts in respect of the controversy in issue. In this view of the matter, a Service Tribunal cannot be equated either with the Election Commission or with the Chief Election Commissioner and, therefore, the case relating to the service matters cannot be invoked in aid to contend that the Election Commission has the jurisdiction to examine the vires of section 8-B of the Act."
14. ' The aforesaid observations, if minutely examined would be found to be favourable to the respondents and would not be of any assistance to the petitioners. Mr. Justice Ajmal Mian (The Hon'ble Chief Justice as he then was) while giving his view on pages 142 and 143 above observed that there was a distinction between jurisdiction and powers exercisable by the Service Tribunal and the Election Commission or the Chief Election Commissioner in view of the fact that establishment/creation of the Service Tribunal was linked with clause (1) of Article 212 of Constitution of Pakistan and further that clause (3) of Article 212 provided an appeal involving substantial question of law of public importance against an order of Service Tribunal to the Supreme Court. It was finally observed that the effect of clauses (1) and (3) of Article 212 was that the Service Tribunal could not examine the vires of the relevant provisions of the Statute under which it had been created which would obviously lead to a presumption that there would be no bar on its powers/authority to examine the vires of other provisions of the Statute or provisions of Statutes other than that which created it. Ms. Tahnyat in support of her contention that when the Legislature confers unbriddled and unlimited powers on any forum/authority/officer thereby clothing such forum/officer with authority to exercise power arbitrarily-capriciously and according to whims then such conferment of powers would be illegal, unconstitutional mala fide and would be struck down. For the above she placed reliance on the following cases:--
(i) Waris Meah v. The State and another, reported in PLD 1957 SC 157. In this case the Supreme Court had held that insertion of sections 22-A, 23-A and 23-B in the Foreign Exchange Regulation Act by the Foreign Exchange Regulation (Amendment) Act empowering the Central Government or the State Bank of Pakistan to determine whether an offender under foreign Exchange Regulation Act was to be tried in the ordinary law, by an adjudicating officer or by a Tribunal was ultra vires of Article 5 of the Constitution and void. It was submitted that section 11 of the Amending Act of 1997 conferring unbriddled, unlimited, arbitrary and discriminatory powers on the Executive Board and the President of the Banks allowing them to frame policies according to their whims, desires and discretion with mala fide intention and ulterior motive relating to the terms and conditions of service of the officers and employees would be deemed to be void. This question can be gone into only if the petitioners succeeded in establishing that the petitions filed by them are maintainable;
(ii) Javed Iqbal Khawaja and another v. Azad State of Jammu and Kashmir, reported in 1994 PLC (C.S.) 1448 that Legislation which violates or is inretrrogation to the rule of equality or is arbitrary and discriminatory was liable to be struck down on the ground of discrimination and arbitrariness as well as for its being violative of the Constitution Fundamental Rights. This authority is also of no assistance of the petitioners at this stage when the question of maintainability is in issue; (iii)
15. Government of Balochistan v. Azizullah Memon, reported in PLD 1993 SC 341. Reliance was placed on the following observation:-- ' ... The right of access to justice does not only mean that the law may provide remedies for the violation of rights, but it also means that every citizen should have equal opportunity and right to approach the Courts without any discrimination. It also envisages that normally the Courts established by law shall be open for all citizens alike. Where the jurisdiction of the ordinary Courts established under the ordinary law is excluded or barred and certain class of cases or class of persons or inhabitants of an area are not, allowed to approach such Courts and are to be tried or rights adjudicated by special Courts, then a fair, rational and reasonable classification must be made which have nexus with the object of the Legislation...."
(iv) Inamur Rehman v. Federation of Pakistan and others, reported in 1992 SCMR 563. This case was relied upon by Ms. Tahnyat Farooq in support of her contention that newly incorporated section 2-A was ultra vires of Article 25 of the Constitution of Pakistan as it prevented the petitioners from approaching the High Court for challenging the wrongful termination of their services, thereby being arbitrary and discriminatory. It denied to the petitioners the right of equal protection of law, thus, violating the provisions of Article 25 of the Constitution of Pakistan.
16. ' The aforesaid cases relied upon by Ms. Tahnyat Farooq in support of her contention are of no assistance to the petitioners at this stage when the question of maintainability of these Constitutional petitions is being examined and determined. The aforesaid cases relied upon by her may be of some help once it is decided that the Constitutional petitions are maintainable and should proceed on merits. The observations and the pronouncements made in the cases relied upon by her are regarding the merits of the disputes/questions in issue in the cited cases and do not touch the issue or controversy of maintainability of the Constitutional petitions. In the circumstances, we hold that the aforesaid cases are not of any assistance to the petitioners at this stage when we are determining the maintainability of these Constitutional petitions.
17. ' Mr. Makhdoom Ali Khan objected to the maintainability of these Constitutional petitions on another ground and submitted that admittedly the petitioners have been retired from the service of Habib Bank Limited and have ceased to be in the employment and although they have challenged their retirement to be arbitrary, discriminatory and illegal yet they did not pray for the relief of recalling the orders of retirement/termination and their reinstatement in the service of M/s. Habib . Bank Limited which meant that they have accepted their retirement/termination and have no grievance against the same. It was further submitted by Mr. Makhdoom Ali Khan that in such a situation the aforesaid Constitutional petitions are not maintainable as the petitioners are not aggrieved parties as contemplated in clause (1) of Article 199 of the Constitution of Pakistan.
18. Ms. Tahnyat Farooq in reply to the aforesaid arguments submitted that the petitioners have filed the above petitions in public interest to protect thousands of officers/employees of the nationalized banks who may face the same fate by the illegal action of the Executive Board/President as was meted out to the petitioners and for this purpose have challenged the vires of section 11(4)(5) and (8) of the Amending Act of 1997 as well as prayed for a restraint order against the President of Habib Bank Limited with a view to stop him from rendering thousands of officers/employees as jobless. We are afraid that the contention advanced by Ms. Tahnyat Farooq is without any substance and merits no consideration as under Article 199 of the Constitution of Pakistan any person invoking the jurisdiction of this Court has to establish that he is an aggrieved party as defined in clause (1) of Article 199 of the Constitution of Pakistan and further that the relief sought by him is one which he is legally entitled to, seek under any provision of the law, rules or regulation and further that for seeking the relief prayed by him no other forum or remedy is available to him.
19. ' We may refer here to the case of Ms. Benazir Bhutto v. Federation of Pakistan and another, reported in PLD 1988 SC 416 to which our attention was drawn by Mr. Makhdoom Ali Khan for endorsing the contention advanced by him that Article 199 of the Constitution of Pakistan has authorised this Court to enforce fundamental rights of an aggrieved person and to declare that so much of the law which was inconsistent with the fundamental rights would be void whereas the power to enforce the fundamental rights involving question of public importance is to be exercised by the Supreme. Court under Article 184(3) of the Constitution. It will be appropriate to reproduce relevant provisions from the aforesaid judgment as under:-- "While dealing with this preliminary objection, the rigid notion of an aggrieved person in Article 199 was read in sub-Article (3) of Article 184 in the milieu that the former conferred a power on the Supreme Court to make an order for the enforcement of Fundamental Rights on the same terms as envisaged in the provisions of Article 199. Accordingly, it was held that 'clause 1(c) of Article 199 does indeed contemplate that an application for the enforcement of Fundamental Rights has to be made by an aggrie-ved person', but as the petitioner had filed the petition in two capacities, namely, as wife of one of the detenus and as an Acting Chairman of the Pakistan People's Party to which all the detenus belonged, the petitioner was held to be an aggrieved person within the meaning of Article 199 which was more or less in similar terms as in the case of Manzoor Elahi v.
20. Federation of Pakistan, PLD 1975 SC 66."
21. Upon the above discussion we are satisfied beyond any slightest doubt that the aforesaid petitions are misconceived and are not maintainable in view of the provisions of Article 212(1) of the Constitution of Pakistan and they must fail. Accordingly, we dismiss both these petitions in limine.