2020 PLP (C (PLC(CS)N)

SARDAR MUHAMMAD EJAZ KHAN, J.

The captioned writ petition has been addressed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, whereby following relief is implored by the petitioner:- "It is, therefore, most respectfully prayed that this writ petition may kindly be accepted. The impugned order along-with its proceedings dated 4th August, 2017 as a consequence whereof the petitioner was dismissed from his service as Area Manager, Habib Bank Limited, Dadyal may kindly be declared as illegal, un-constitutional, void, coram-non-judice, without lawful authority and of no legal effect and may kindly be set-aside with an order for re-instatement of the petitioner in service, at his right full place with all pay and benefits and deal his application of mature retirement with law and other full consequential relief. It is further prayed that operation of the impugned order may kindly be suspended and keeping in view the petitioner suffer irreparable loss and will face financial adversity due to the impugned order of -said respondents and a direction may kindly be passed for transfer grant TA/DA and all benefits which petitioner is entitled for the period of illegal suspension and till today pending final decision of this writ petition with further direction to the respondents Nos.8 and 9 not to arrest the petitioner without following the proper law holding the field."

2. Pre-admission notices were issued to the respondents for filing parawise comments vide order dated 02.10.2018, however, respondents concerned filed the same, wherein, it has been stated that the petitioner has no locus standi to file the instant writ petition because Habib Bank Limited is not a person within the purview of Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, hence, constitutional jurisdiction of this Court by-way of filing writ petition cannot be invoked. It has been further stated that Habib Bank Limited is a company incorporated under the provisions of The Companies Ordinance, 1984 and is operating as a banking company within the ambit of The Banking Companies Ordinance, 1962. It has been alleged that the petitioner is fully connected with the alleged crime of embezzlement and in this regard, the bank authorities have also initiated criminal proceedings against the petitioner. It has been craved that the petitioner has an alternate and efficacious remedy, hence, the writ petition is not maintainable.

3. I have perused the written arguments filed on behalf of petitioner, heard the learned counsel for respondents and gone through the record of the case.

4. It is to be seen as to whether the vires of order dated 04.08.2017 could be challenged by invoking the constitutional jurisdiction of this Court through writ petition or not? For proper appreciation of the matter, I would like to reproduce the relevant portion of a case titled United Bank Ltd. Employees Union through its President and General Secretary at Muzaffarabad and 04 others v. United Bank Ltd. through its President and others 2000 PLC (C.S.) 930 in the following manner:- "It is clear from the phraseology of Section 44 that a writ petition is maintainable against a "person" as defined in subsection (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 but it is under the record of Government of Pakistan and not under control of Azad Jammu and Kashmir Council or the Azad Government of the State of Jammu and Kashmir. Thus it does not fall under the definition of "person" contained in subsection (5) reproduced above. This judgment is fully applicable to the present case. United Bank Limited is not financed by the Azad Government 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 Government 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 Mill Ltd. v. National Bank of Pakistan and others decided on 2.7.1998. 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 case. The appeal thus fails but we leave the parties to bear their respective costs in this Court." Similar proposition has also been resolved in a case titled Abdul Malik v. Habib Bank Ltd. and others 2008 CLC 339 has been observed as under:- "We have carefully considered the contentions put for the by the parties' learned counsel. It may be observed that under Article 199 of the Constitution of Pakistan, this Court if satisfied that no other adequate remedy is provided by law, on the application of an aggrieved person, can make an order directing a person performing within territorial jurisdiction of the Court functions in connection with the affairs of the Federation, a province of a Local Authority to refrain from doing anything he is not permitted by law to do so or to do anything he is required by law to do so or declare that any act done or proceedings taken by a person performing functions in connection with the affairs of the Federation, a province or a Local Authority has been done or taken without lawful authority and is of no legal effect. 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 his condition precedent qua maintainability of Constitutional Petition."

5. Thus, without going into the merits and demerits of the case, the petitioner has no locus standi to invoke the extra ordinary jurisdiction of this Court by-way of filing writ petition because he has an alternate and efficacious remedy and without availing the opportunity, ill-gotten-gains of the petitioner cannot protected through writ jurisdiction. The constitutional jurisdiction of this Court can only be exercised where any violation of law and rules has been made but no any violation of law or rules has been pointed out which may suggest that the impugned suspension order dated 4-8-2017 appears to have been issued without lawful authority and contrary to rules.

6. In view of above, the instant writ petition, having no statutory backing, is hereby dismissed in limine. SA/30/AJK(HC) Petition dismissed.