1998 PLP 1452 (SCMR)

MUNAWAR AHMAD MIRZA, J.

This petition is directed against order dated 30th April, 1997 passed by High Court of Sindh, Karachi, in Constitution Petition No. 935 of 1997..

2. Facts briefly mentioned are that respondent No. 1 (Muslim Commercial Bank Ltd.) was initially established tinder Companies Act, 1913 for carrying banking business under the control of State Bank of Pakistan, which was, however, nationalised pursuant upon the Bank Nationalisation Act, 1974 (XIX of 1974). It is an admitted position that, respondent-batik was denationalised and privatised during year 1990. Private management tookover the organisation in the year 1991. Respondent No. 2 was appointed as Chairman/Chief Executive of respondent-Bank. Petitioner joined respondent-Bank in capacity of officer towards 30th January, 1965 and rose to the rank of Senior Executive Vice- President with effect from 1st March, 1994. His services were terminated by. the Board of Directors by allowing him three months' salary in lieu of notice period on 26th March, 1997. Aggrieved from said order petitioner on 26th April, 1997 filed Constitution Petition No. 935 of 1997 before High Court of Sindh, Karachi, wherein following reliefs were sought:-- "(i) To hold and declare that the order of termination of the petitioner's service, allegedly passed by respondent No. 1 and hereby impugned (Annexure ' F/1') is a nullity in the eyes of law, invalid, void and of no effect; (ii) to direct respondent No. 1 to allow the petitioner to continue his 32 years long service on and from 1-4-1997 with the same benefits, remuneration, privileges and advantages of service to which he has so far been entitled; (iii) to restrain the respondents by a permanent injunction from acting upon the impugned order of the petitioner's termination of service directly or indirectly and expressly or implicitly and/or from disturbing him in the performance of his duties; (iv) to grant arty other relief as may be deemed lawful, equitable, proper or expedient in the interest of justice; (v) to award cost of this petition." This petition was, however, dismissed on 30th April, 1997 in the following terms:-- "We have heard the learned counsel. As to the maintainability of 'this petition against the respondent No. 1, which is a denationalised bank, the learned counsel has drawn our attention to Salahuddin Frontier Sugar Mill and Distillery Ltd. PLD 1975 SC 244 and/in particular to the passage side line on page

256. On. our part, we have pointed out placitum C & D in the same judgment occurring on page 257 to the learned counsel. The upshot of the above proposition is that the petitioner was an employee of a denationalised institution, currently in private hands when his services were terminated through the impugned order, according to the learned counsel, illegally and in colourable exercise of power. We are afraid such matters cannot give rise to the exercise of Constitution jurisdiction. Accordingly, the matters at Sr. Nos. 1 to 4 are disposed of, with the dismissal of the petition. "

3. Petitioner . feeling dissatisfied from the above decision filed present petition for leave to appeal before this Court wherein following four points of public and general importance were mentioned:-- "(I) Whether respondent No. 1 is 'a person performing functions in connection with the affairs of the Federation' within the meaning of Article 199(a)(i) of the Constitution of Pakistan, by reason of its 'conduct of banking business by corporations owned or controlled by a province' as provided in item 28 in Part I of the Federal Legislative List in the Fourth Schedule of the Constitution of Pakistan? (II) Whether the abrupt termination of the petitioner's 32 years' banking career, without any 'show-cause' notice or charge-sheet or enquiry or opportunity to defend himself, in consequence of the malice and ' mala fide' of respondent No. 2, as pleaded and floating on the surface, was a colourable exercise of his powers and in violation of the principles of natural justice? (III) Whether in a case where 'mala fide'/malice/caprice is secretly nourished by respondent No. 2 and patently apparent on the face of the record, the maintainability of a Constitution petition under Article 199 of the Constitution of Pakistan is barred on account of the availability of inadequate, inefficacious and inconvenient remedy? (IV) Whether the decision of the Board of Directors had been actually taken on 16-3-1997, or, in the circumstances of the case, managed by respondent No. 2?

4. Mr. Muhammad Akram Sheikh, Senior Advocate Supreme Court, challenging validity of impugned order and mala fides about terminating service of petitioner emphatically raised following contentions:-- (i) Through Constitution Petition filed before High Court of Sindh whereby not only 'Board's Constitution was challenged, but relief for quo warranto questioning validity with regard to appointment of respondent No. 2 as Chairman/Chief Executive of Bank was also sought. High Court without adverting to important legal points and considering composite nature of relief had dismissed the petition in a slipshod manner. (ii) The grievances raised in the Constitution petition primarily related to enforcement of fundamental rights including that of livelihood and equal protection before law. Therefore, rigours of C.P.C. and other technicalities could not affect the substantial right or jurisdiction of the Court in granting relief. To supplement this submission reference was made to judgments reported as:-- (a) PLD 1988 SC 416; (b) PLD 1990 SC 513; (c) 1991 SCMR 1041 and (d) 1993 SCMR 2000. (iii) Principle of law enunciated by this Court in PLD 1975 SC 244 (Salahuddin v. Frontier Sugar Mill and Distillery Ltd.) has not been correctly construed by the High Court of Sindh while dismissing the petition. Similarly approach and new trends for protecting infringement of rights as enunciated in 1997 SCMR 1543 have been ignored. (iv) Petitioner had worked hard and from ordinary banking company had raised the respondent-Bank to Mega-financial institution. Therefore, his service could not be whimsically terminated, denying him livelihood and protection of law. (v) Respondent No. 3 (Federation of Pakistan) still has 25 % shares in the respondent-Bank. Therefore, keeping in view Article 97 of the Constitution and Item No. 28 of Federal Legislative List; petitioner is deemed to be performing functions connected with affairs of Federation. Thus Constitution petition filed before High Court for redress of grievances was competent and had been dismissed against spirit of law. (vi) The service rights of petitioner were projected by legal instruments drawn during year 1974 and Muslim Commercial Bank Staff Service Rules, 1981 could pot be applied to him.

5. Raja Muhammad Akram, Senior Advocate Supreme Court, appearing for respondent No. 1 vehemently opposed the petition advancing following arguments:-- (i) The impugned order is quite explicit and discloses that only question with regard to maintainability of petition was raised by relying upon observations contained in PLD 1975 SC 244 (supra), which was duly attended to and answered by referring observations in the 'same judgment, appearing at page 257 placitum 'C' and 'D'. (ii) Constitution petition before High Court of Sindh had been filed simpliciter for challenging petitioner's termination from service as clearly indicated from the prayer clause reproduced above. (iii) Plea with regard to relief of quo warranto against respondent No. 2 and incidental objections were neither raised nor 'argued before the High Court. Similarly grievance in that behalf has not been expressly pleaded in the petition for leave to appeal. It was thus stressed that points neither agitated before Sindh High Court nor pleaded in the memo. of petition have no significance. Thus, same could not be lawfully considered. (iv) While seeking leave to appeal normally fresh points cannot be permitted. Hence all the arguments addressed by learned counsel for petitioner have no relevancy and deserve to be ignored. (v) Main point, with regard to maintainability of the petition which has been raised by the other side is completely answered in the case Muhammad Umar Malik v. The Muslim Commercial Bank Ltd. 1995 SCMR 453, wherein all the case-law discussed in the judgment under its scrutiny i.e. PLD 1993 Lah. 281 (M.C.B. Ltd. v. Muhammad Umar Malik) was upheld. Besides, principle of law enunciated 'in (i) 1998 SCMR 68 (United Bank Limited and others v. Ahsan Akhtar and others), and (ii) 1998 SCMR 60 (Habib Bank Limited and others v. Syed Zia-ul-Hassan Kazmi) also support the conclusions drawn in the impugned order.

6. Firstly, learned counsel for petitioner stressed hard to show that grievances agitated in the Constitution petition before Sindh High Court was of composite nature claiming cognate reliefs. Attempt was made to suggest that respondent No. 2 being 'non-professional' or 'non-Executive Banker' could not be appointed as Chairman/Chief Executive of Muslim Commercial Bank Ltd. (respondent No. 1). Therefore, a writ of quo warranto requiring respondent No. 2, for showing under what authority he was holding office be issued. It may be seen that reliefs claimed in Constitution Petition No. 935 of 1997 instituted before High Court of Sindh has already been reproduced above. Admittedly clauses (i), (ii) and (iii) pertain to relief against petitioners termination from service. However, learned counsel for petitioner by referring to clause (iv) of the prayer, made an effort to argue that relief of quo warranto was deducible from the same. For ready reference prayer clause (iv) is once again reproduced here:-- '(iv) to grant any other relief as may be deemed lawful, equitable, proper or expedient in the interest of justice.' We are hardly impressed from the above contentions because by no stretch of imagination prayer clause (iv) could be relatable to relief of quo warranto against respondent No.

2. Besides, neither by stating fact's nor mentioning the grounds for attaching order regarding termination from service petitioner has directly challenged the status of respondent No.

2. Therefore, we are satisfied that Constitution Petition filed by the petitioner before Sindh High Court did not have any nexus with relief of quo warranto and was simpliciter directed towards challenging the legality of order regarding termination of I petitioner's services.

7. Learned counsel for petitioner when confronted with above difficult situation proceeded to argue with great vehemence, that grievances agitated by the petitioner involves enforcement of fundamental rights pertaining to livelihood and equal protection of law. In order to supplement his stand reference was made to para. 3 from memo. of petition for leave to appeal filed before this Court, which reads as under:-- "

3. That after the then President of respondent No. 1, vacated his office, the affairs of respondent No. 1 'were entrusted to a non professional and non-executive banker, i.e. respondent No. 2 and contrary to State Bank policy and precedents he was appointed as its President in or about December, 1996, initially for 3 months as a stop gap arrangement, and by a letter dated 28th March, 1997, i.e. on completion * of the said initial period, the State Bank of Pakistan reminded respondent No. 1 of expediting the appointment of a professional banker as its President, which is still expected and awaited. It appears .that the State Bank advice has not been taken seriously, as respondent No. 2 is stated to be publicly boasting of being a village mate of the Governor of State Bank of Pakistan. Despite therefore, this appointment as President, the affairs of respondent No. 1 are being run and carried out by a non-professional chief." In the given circumstances Mr. Muhammad Akram Sheikh, Senior Advocate Supreme Court, for petitioner, tried to canvass that on the strength of principles of law enunciated in the judgments referred by him, strict adherence to rigours of C.P.C. and technicalities specially for enforcement of Fundamental Rights was not required. We may observe here that the case in hand purely relates to question regarding termination of petitioner's services from respondent-bank. Surprisingly individual grievance of termination from service is being equated with enforcement of fundamental rights. We feel that such' construction would adversely affect procedure for remedying service grievances under the existing law, which obviously cannot be permitted or adopted The petitioner must approach forums of competent jurisdiction for redress if any. This Court in Constitution Petition No. 10 of 1996 etc. (Syed Zulfiqar Mehdi and others v. Pakistan International Corporation and another has ruled that unless issues relating to great public importance of collective benefits and violation of fundamental rights are raised Article 184(3) of the Constitution cannot be invoked. Observations appearing in para. 11 are reproduced below:-- "

11. We now proceed to examine the controversies raised by the petitioners in the above cases in the light of the above-stated principles. The issues arising in a case, cannot be considered as a question of public importance, if the decision of the issues affects only the rights of an individual or a group of individuals. The issue in order to assume the character of public importance, must be such that its decision affects the rights and liberties of people at large. The objective 'public' necessarily implies a thing belonging to people at large, the nation, the State or a community as a whole. Therefore, if a controversy is raised in which only a particular group of people is interested and the body of the people as a whole or the entire community has no interest, it cannot be treated as a case of 'public importance'. Firstly, the controversy raised in the above petitions that the petitioners who' were dismissed under MLR 52 were not allowed back benefits on re-employment in the service of P.I.A.C. cannot be treated as an issue of 'public importance as the decision of this issue is hardly of any significance to the people at large or to the whole community. The issue concerns only to a very limited numbers of employees of P.I.A.C. Secondly, the allegations of discrimination made by the petitioners are denied by the P.I.A.C, both on legal as well as factual planes and therefore, an enquiry into the factual aspects of the cases of petitioner as well as of those who were allegedly given preferential treatment by P.I.A.C., has to be undertaken to decide the controversy. Such an exercise cannot be appropriately undertaken in these proceedings. It is also rightly pointed out by the learned counsel for the respondent P.I.A.C., that the case of each petitioner is to be decided taking into consideration the facts and merits of his case, for which elaborate and alternate remedy is provided under the law. We are, therefore, of the view that no question of public importance in the above petitions arises so as to confer the jurisdiction on this Court to entertain these petitions under Article 184(3) of the Constitution. We, accordingly, dismiss these petitions as not maintainable. No order as to costs."

8. Adverting to present case; suffice it to observe that in all the four cases relied upon by learned counsel for petitioner the questions of great public importance were involved and the jurisdiction under Article 184(3) of the Constitution was involved which is much wider than scope of writ jurisdiction under Article 199 of the Constitution. Thus principles of law discussed in said reported judgments are of no assistance to the petitioner.

9. It was next argued that respondent No. 2 was not a 'Professional Banker', therefore, his appointment under section 7 of Banks (Nationalisation) (Amendment) Ordinance VIII of 1997 which substituted section 11 of Act XIX of 1974 was unlawful. However, petitioner has not filed any document which may support his stand. Reference to photocopies of news clippings has no evidentiary value. Raja Muhammad Akram, learned counsel for respondent refuted the assertions and contended that claim put forth by petitioner before this Court was beyond the scope of reliefs claimed in Constitution Petition No. 935 of 1997 which culminated in passing of impugned order. It is now well-settled that powers of judicial review under Article 199 does not extend to investigation into question of fact. In this behalf reference may be made to observations in PLD 1968 SC 185 (Tapir Ahmad Siddiky v. Province of East Pakistan), the same are reproduced below:-- "It appears to me that disputed questions of fact and law, requiring investigation, arise for consideration in this case which would, therefore, not be a suitable subject for adjudication under Article 98 of the Constitution. The appellant must, therefore, be relegated to the, remedy open to him by a regular civil suit, if so advised." Thus factual aspect whether respondent No. 2 suffers from any disability, being disputed cannot be resolved without entering upon detailed inquiry. Constitution petition on this score is also incompetent.

10. Lastly, impugned order manifests that Mr. Rehan-ul-Hassan Farooqui, Advocate appearing for petitioner before Sindh High Court had merely raised question ' of maintainability of petition by .placing reliance on the observations in PLD 1975 SC 244 (supra) side line ' B' at page 256 to show that Organisations or Corporations which have control or connection of the Government with ,appointment of officers are deemed to perform functions connected with the affairs of Federation or Province. Relevant observations are reproduced below:-- "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, education, 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 functions by appointing the heads and other senior officers of these corporations, by regulating their composition and procedures by appropriate statutes, and by finding funds for financing their activities. Examples of such statutory corporations are the National Bank of Pakistan, the West Pakistan Water and Power Development Authority Pakistan the National Shipping Corporation, the Agricultural Development Bank of Pakistan, and the large number of Universities functioning under stay their respective statutes. On account of their common attributes, as mentioned in the preceding paragraphs, they have all been regarded as persons performing functions in connection with the affairs of the Federation or a Province."

11. It is pertinent to mention that stand taken by the counsel for the petitioner was duly considered by the Court and objection was answered by referring to following observations appearing at placitum ' C' and ' D' page 257 of the same judgment, which reads thus:-- "However, private oganisations or persons, as distinguished from Government or semi-Government agencies and functionaries cannot be regarded as persons performing functions in connection with the affairs of the Federation or a Province simply' for the reason that their activities happen to be regulated by laws made by the State. Accordingly, a joint-stock company, incorporated under the Companies Act, for the purpose of carrying on commercial or industrial activity for the benefit of its shareholders, cannot be regarded as a person performing State functions, just for the reason that its functioning is regulated by law or that the distribution of its manufactured products is subject to governmental control in the public interest. The primary test must always be whether the functions entrusted to the organisation or person concerned are indeed functions of the State involving some exercise of sovereign or public power; whether the control of the organisation vests in a substantial manner in the hands of Government and whether the bulk of the funds is provided by the State. If these conditions are fulfilled, then the person, including a body politic or body corporate may indeed be regarded as a person performing functions in connection with the affairs of the Federation or a Province; otherwise not. Now, the Frontier Sugar Mills and Distillery Ltd., is a public limited company, incorporated under the Companies Act, 1913, like a large number of other such Companies in Pakistan. Although the Provincial Government holds preferential shares in the Company to the extent of Rs. two lacs, yet the bulk of its paid-up capital of Rs. ten lacs has come from private shareholders. At one time, the Chief Minister of the Province or the Chief Secretary may have been the ex officio Chairman of the Board, but at the time of filing the Writ petition the management was clearly vested in the elected Board of Directors, functioning through a private person appointed as the Managing Director by the Board of Directors. In fact, under Article 139, as added in 1950. respondent Taj Muhammad Khanzada appears to have been appointed to this position for an indefinite period. In these circumstances, the Company obviously remains under its own management irrespective of the Government's right to nominate one of the Directors. The Company is not an organisation or corporation created by a special statute, nor is it substantially financed and controlled by the Government. The Government control is limited to those regulations which apply to all similar concerns engaged in the sugar industry. Such governmental control of commercial or industrial activities cannot be regarded as investing joint-stock companies with the character of a person performing functions in connection with the affairs of a Province or a Federation. The High Court was, therefore, clearly right in holding that the Company was not amendable to the issuance of writ under clause (a)(a)(i) of Article 201 of the Interim Constitution. " Additionally question relating to non-maintainability of Constitution Petition in cases of privatised/denationalised institutions has now been finally decided by this Court in cases reported in 1998 SCMR 60 (Habib Bank.Limited v. Syed C Zia-ul-Hassan Kazmi) and 1998 SCMR 68 (United Bank Limited and others v. Ahsan Akhtar). For the above reasons conclusions drawn by the High Court of Sindh are well-reasoned and unexceptionable. Consequently petition having no merits is dismissed and leave to appeal declined. A.A./W-13/S Leave refused.