1983 PLP (C (PLC(CS))

(b) National Bank of Pakistan Staff Rules, 1981‑ ‑‑‑ Compulsory retirement‑Vice‑President of National Bank being removable by Board of Directors his remuneration paid byte Bank and appointment made by Board of Directors‑Regulations governing conditions of service framed by Bank‑Writ petition against retirement order, held, not maintainable‑‑Constitution of Pakistan, (1973), Art. 199 and Provisional Constitution Order,. (P. O. 1 of 1981), Art.

9. Manzoor Ali Khan for Petitioner. ABDUL HAYEE KURESHI, ACTG. C. J.‑This petition under Article 9 of the Provisional Constitution Order, 1981 has been filed by Abdul Ghani Sayeed, who at all relevant times was Vice‑President in the concern of the respondent, namely, the National Bank of Pakistan. It seems that an inquiry was held against the petitioner on charges of misappropriation and he was found guilty and was compulsorily retired. The point that has engaged our attention is in regard to. maintain ability of this petition. Admittedly the petitioner is not in civil service of Pakistan but he is an employee of an incorporated body, namely, National Bank of Pakistan. The learned Advocate was confronted with the situation arising out of the circumstances of the petitioner being an employee of an incorporated body not concerned with the affairs of the State. The learned Advocate in that regard has invited our attention to the Single. Judge's judgment from Lahore High Court in the case of Muhammad Abdullah Khan v. National Bank of Pakistan (1980 P L C (C. S.) 105). The learned Advocate has also invited our attention to an admission order of a Division Bench of this Court, in Const. Petition No. 227/81 one of us was a member of that Bench. Additionally reliance has been placed by Mr. Manzoor Ali Khan, on the Supreme Court judgment in the case of Salahuddin v. Frontier Sugar Mills and Distillery (P L D 1975 S C 244). We took note of a Division Bench Judgment of this High Court in the case of Muhammad Aslam v. National Shipping Corporation (P L D 1979 Kar. 246). In this case Muhammad Aslam was an employee of National Shipping Corporation ‑which Corporation was established under a Central Act. The question of safeguards available to servants of a registered company or a statutory corporation were considered by the Division Bench in distinction with the safeguards available to the civil servants and the Division Beach held that such servants of the statutory corporations are to be governed by general Law of Master and Servant and the only remedy available to them is to sue for damage for wrongful dismissal and not for writ of mandamus or certiorari. The learned Judges of the Division Bench had adverted to a mass of case‑law on the subject and arrived at such conclusion. The conclusions have been stated in very clear terms which do not admit of any conflicting interpretation. Additionally our attention was also attracted to the judgment in the case of R. T. H. Janjua v. National Shipping Corporation (PLD 1974SC 146). In fact the learned Judges of the Division Bench of the Sind High Court had mainly based their conclusions on this case. In these circumstances, Mr. Manzoor Ali Khan has invited our attention to the case of Salahuddin v. Frontier Sugar Mills and Distillery Ltd. P L D 1975 S C

244. We have been invited to consider the paragraphs appearing at page 256 of the said report. In such paragraphs it seems that his Lordship was con sidering the criterion which lay under the distinction that has to be drawn while following the process of finding whether constitutional safeguards were available in the case of employees of statutory corporations. The conclusions have been stated in paragraphs at page 257 of the report and some tests have been laid down. It would be profitable to reproduce the passage appearing in the judgment which reads as under :‑ "The primary test must always be whether the functions entrusted to the organization or person concerned indeed are functions of the State involving some exercise of sovereign or public power ; whether the control of the organization 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." It would appear that the criterion mainly is in regard to function of the statutory body. The first test is whether the statutory body is performing functions of the State involving exercise of any sovereign or public power. The second test is whether the Government sub stantially controls the corporation. The last test is whether funds used by the Corporation are provided by Government. Applying those tests inn the case of National Bank there can be no difficulty in holding that the National Bank does not exercise any sovereign or public power and that the control of the National Bank hardly vests in the Government, except the Government may lay down policies and appoint directors and chief executive. What is more is that the National Bank of Pakistan had offered its shares for sale to public after being created under a Federal Act. Each one of the three tests laid down in this case points in the direction that the petitioner cannot maintain this petition. Obviously the petitioner who was a Vice‑President of the National Bank was removable by the Board of Directors, his remuneration was being paid by the Bank, his appointment has been made by Board of Directors, the regulations governing conditions of service had also bee framed by the National Bank. In these circumstances we are clearly of the view that the constitutional remedy will not be available in the cast of the Petitioner This petition in our view is not maintainable. We dismiss the same in limine. Petition dismissed.