BASHARAT AHMAD SHAIKH, J.--- United Bank Limited introduced a retrenchment scheme on 9th October, 1997. Thirty-one officers, cashiers, clerks, gunmen and peons tiled a writ petition in the High Court to challenge their retrenchment at the hands of the functionaries of the United Bank Limited. The High Court has dismissed the writ petition after reaching the conclusion that it was not maintainable. The High Court has held that the writ petitioners could file appeal before the Service Tribunal to challenge their retrenchment. United Bank Limited Employees Union, Muslim Commercial Bank Limited Employees Union, Allied Bank Limited Employees Union and National Bank of Pakistan Employees Union have filed this appeal, with leave of the Court, to challenge the judgment of the High Court.
2. We have heard the learned counsel for the parties on two preliminary points, namely, the /oats standi of the appellants Unions to file this appeal and the. Maintainability of the writ petition. .
3. We would first like to attend to the point about maintainability of the writ petition in the High Court. In order to appreciate this point it will be useful to reproduce para 5 of the concise statement filed by United Bank Limited. It is as follows:"- "(5) For that the functionaries whose orders were under challenge `before the Hon'ble High Court are not performing functions in connection with the affairs of the State. The orders of such functionaries could not he assailed, in the writ petition which has rightly been dismissed by the Hon'ble High Court."
Writ jurisdiction is conferred in the High Court under section 44 of the Azad Jammu and Kashmir Interim Constitution Act. The section may be usefully reproduced:- "44. Jurisdiction of High Court:- (1) The High Court shall have such jurisdiction as is conferred on it by this Act or by any other law. .
(2) Subject to this Act, the High Court may if it is satisfied that no other adequate remedy is provided by law:-
(a) on the application of any aggrieved party, make an order:- directing a person performing functions in connection, with the affairs of Azad Jammu and "Kashmir or local authority to refrain from doing that which he is not permitted by law tondo, or to do that which he is required by law to do; or declaring that any act done or proceedings taken, by a person performing functions in connection with the affairs of the State or 'a local authority has been done or taken without lawful authority, and is of no legal effect; or
(5) In this section, unless the context otherwise requires, person' includes and body politic or corporate, - any authority of or under control of the Council or the-Government -and any Court or Tribunal other than the Supreme Court of Azad Jammu and Kashmir, the High Court or a Court or Tribunal established under a law relating to the Defence Services."
It is dear from the phraseology of section 44 that a -writ petition is maintainable against a "person" as defined in sub-section (5) who is. Performing functions in connection with the affairs of Azad Jammu and Kashmir, a local authority or the State. United Bank Limited is a corporation 'hut it is 'under the control of Government of Pakistan and not under control of Azad Jammu and Kashmir Council or the Azad Govt. Of . The -State of Jammu and Kashmir. *Thus it does not fall under the definition of "person" contained in sub-section (5) reproduced above. Apart from that, it does not perform functions in connection with the affairs of the Azad Govt. Of the State of Jammu and Kashmir, local authority or the Azad Jammu and Kashmir Council. In Muhammad Rashid Choudhry Vs. Chairman AKLASC and others [1995 SCR 73] this Court followed the judgment of, the Supreme Court of Pakistan reported as Salah-ud-Din and 2 others Vs. Frontier Sugar Mills & Distillery Ltd:, Tokhat Bhai and 10 others [PLD 1975 SC 244] insofar as it laid down as follows:- "Now, what is meant by the phrase "performing functions in connection with the affairs of the Federation or a Province." It is clear that the reference is to governmental or state functions; involving; in one form or another, an element of exercise of public power. The functions may be the traditional police functions of the State, involving the maintenance of law and order and other regulatory activities; or they may comprise functions pertaining to economic development, social welfare, eduction, public utility services and other State enterprises of an industrial or commercial nature. Ordinarily, these functions would be performed by persons or agencies directly appointed, controlled and financed by the State i.e. By the Federal Government or a Provincial Government.
However, in recent years, there has been manifest a growing tendency on the part of Governments to create statutory corporations for undertaking many such functions, particularly in the industrial and commercial spheres, in the belief that free from the inhibiting effect of red-tapism, these semi-autonomous bodies may prove more effective, flexible and also profitable. Inevitably; Government retains effective control over their functioning by appointing the heads and other senior officers of these corporations, by regulating their composition and procedures by approrriate statutes, and by finding funds for financing their activities."
This judgment is fully applicable to the present case. United Bank Limited is not financed by the Azad Govt. Of the State of Jammu and Kashmir or the Azad Jammu and Kashmir Council nor it is under their control. There is no element of exercise of public power of the. State in functioning of United -Bank. Therefore it cannot be said that it is performing functions in connection with the affairs of the Azad Govt. Of the State of Jammu and Kashmir or the Azad Jammu and Kashmir Council. The same view was taken by this Court in P.L.A. No. 44 of 1998 titled Amin Spinning kills Ltd.
Vs. National Bank of Pakistan and others decided on 2.7.1998.
4. Consequently the writ petition filed in the High Court was not maintainable and has been rightly dismissed. After having reached this conclusion we need not go into the other point mentioned above or the 'merits of the cage. The appeal thus fails but we leave the parties to bear their respective costs in this Court.