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Petitioner: ABDUL WAHAB VS Respondent: HABIB BANK LTDHonorable Justice MIAN SAQIB NISARMuhammad Akram Sheikh,Ch. Aitzaz Ahsan
2014 P L C (C.S.) 393
[Supreme Court of Pakistan]
Present: Tassaduq Hussain Jillani, Mian Saqib Nisar, Asif Saeed Khan Khosa, Sarmad Jalal Osmany, Gulzar Ahmed and Muhammad Ather Saeed, JJ
ABDUL WAHAB and others
Versus
HABIB BANK LTD. and others
Constitutional Petition No.39 of 2007, H.R.Cs. Nos.14127-S, 14646 of 2009, 13486-S and 47811-P of 2010, decided on 17th October, 2012.
(Petition under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973.)
(a) Habib Bank Limited Staff Service Rules, 1981---
----Rr. 15 & 17---Banking Companies Ordinance (LVII of 1962), Preamble---Constitution of Pakistan, Arts. 199(1)(c) & 184(3)---Constitutional petition under Art. 184(3) of the Constitution challenging the policy decision taken by the Board of Management of Habib Bank Limited ("the Bank") by which 308 employees of the Bank were compulsorily retired early and services of 2 employees were terminated by paying them three months dues---Constitutional petition filed before High Court against the Bank---Maintainability---'Person' or 'authority' performing functions in connection with the affairs of the Federation---Scope---Plea of employees (petitioners) was that the State/Federation had a considerable shareholding in the Bank in question and representation in the managing affairs thereto; that the Bank was being regulated by and under the authority of the State Bank of Pakistan; that the Bank was a 'person' in terms of Art. 199(1)(c) of the Constitution as it was distinct from an 'ordinary private individual', because it (the Bank) was owned and controlled by the State, therefore, for all intents and purposes, an appropriate writ petition against the Bank was maintainable under Art.199(1)(c) of the Constitution---Validity---Bank in question had been privatized and the majority shareholding thereof, had been acquired and was vested in a (private) foundation---Board of Management of the Bank was predominantly represented by the said foundation---Petitioners were unable to show that the State/Federation had the majority of shareholding, or majority representation in the Board of Management of the Bank---State Bank of Pakistan was only a regulatory body for all the banks operating in Pakistan in terms of Banking Companies Ordinance, 1962---Such regulatory role and control of State Bank of Pakistan could not clothe the Bank in question, with the status of a 'person' or the 'authority' performing the functions in connection with the affairs of the Federation---Bank in question was a private institution for all intents and purposes---Constitutional petition was held to be not maintainable and was dismissed accordingly.
Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Takht Bhai and 10 others PLD 1975 SC 244 and Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 806 ref.
(b) Habib Bank Limited Staff Service Rules, 1981---
----Rr. 15 & 17---Constitution of Pakistan, Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution challenging the policy decision taken by the Board of Management of Habib Bank Limited ("the Bank") by which 308 employees of the Bank were compulsorily retired early and services of 2 employees were terminated by paying them three months' dues---Maintainability---Contractual employees of a Bank governed by non-statutory rules---Employees (petitioners) in question were employed by the Bank as a result of a prescribed internal process of the Bank and the letters of their appointment clearly indicated that they were taken into employment on their unequivocal acceptance of the terms and conditions of employment---When employees duly accepted the offer of appointment, it culminated into a valid and a binding service contract between the parties, which for all intents and purposes was meant to govern and regulate the relationship inter se between the parties---Constitutional petition was held to be not maintainable in such circumstances and was accordingly dismissed.
(c) Constitution of Pakistan---
----Art. 199--- Constitutional petition before the High Court---Maintainability---Service grievance---Person/employee not governed by statutory rules of service---Where a service grievance was agitated by a person/employee who was not governed by statutory rules of service, before the High Court, in terms of Art.199 of the Constitution, such petition shall not be maintainable.
Pakistan International Airline Corporation v. Tanweer-ur-Rehman PLD 2010 SC 676 and Pakistan Telecommunication Co. Limited v. Iqbal Nasir PLD 2011 SC 132 rel.
(d) Constitution of Pakistan---
----Art. 184(3)---Jurisdiction of Supreme Court under Art.184(3) of the Constitution---Scope---Service grievance---Employment on contractual basis---While exercising jurisdiction under Art. 184(3) of the Constitution the Supreme Court was bound by the conditions of the said Article, and moreover by such rules which were laid by the Supreme Court for regulating its jurisdiction, keeping in view the principles of restraints---In cases of contractual service, where the grievance agitated was against a private person, there was no reason that such restraint should not be resorted to by the Supreme Court.
(e) Constitution of Pakistan---
----Art. 184(3)---Judicial review---Scope---Supreme Court had the power of judicial review to examine and adjudge any legislative and/or administrative action of the State on the touchstone of the fundamental rights and, to pass appropriate orders for protecting such rights and enunciating the law in respect thereof.
(f) Constitution of Pakistan---
----Arts. 184(3) & 199---Jurisdiction of the Supreme Court under Art.184(3) of the Constitution---Scope and restraints---Constraints and limitations, if any of Art.199 of the Constitution, might not stricto sensu be attracted to the jurisdiction of the Supreme Court under Art.184(3) of the Constitution, in view of the expression "without prejudice" appearing at the very opening of Art.184(3), meaning thereby "without any detriment" (i.e. without being harmed or damaged or hurt)---However, the Supreme Court had the power and the jurisdiction to lay down the rules for the purposes of regulating its own jurisdiction and to apply the rules of restraints---Besides, Art. 184(3) of the Constitution itself had its own limitations and conditions, which were that the matter before the Supreme Court should be for the enforcement of any of the fundamental rights conferred by Chapter I of Part-II of the Constitution, and with reference to the enforcement of such fundamental rights the question involved should be of public importance---Said two conditions were primary, foundational and fundamental for the exercise of the power vested in the Supreme Court under Art. 184(3) of the Constitution and were sine qua non thereto---Both said conditions must first be established by the petitioners of the case and shown to co-exist before enabling the Court to exercise its jurisdiction in terms of Art. 184(3) of the Constitution (obviously subject to its own principles for regulating its jurisdiction and the judicial restraints).
(g) Constitution of Pakistan---
----Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution---Maintainability---"Question of public importance"---Scope---For the purpose of qualifying the test of "question of public importance", the issue involved in a matter before the Supreme Court under Art. 184(3) of the Constitution must belong and should concern the public at large, the State or the nation---If the proposition/matter involved the alleged violation of the Fundamental Rights of an individual or a group of individuals, how so large it might be, but had no concern and effect on the public, then it could not be termed as "question of public importance".
(h) Habib Bank Limited Staff Service Rules, 1981---
----Rr. 15 & 17---Constitution of Pakistan, Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution challenging the policy decision taken by the Board of Management of Habib Bank Limited ("the Bank") by which 308 employees of the Bank were compulsorily retired early and services of 2 employees were terminated by paying them three months dues---Maintainability---"Question of public importance"---Scope---Employees in question (petitioners) were retired/terminated by invoking provisions of Rr. 15 & 17 of Habib Bank Limited Staff Service Rules, 1981---Employees were contractual employees, of a private institution having no statutory rules to safeguard their service---All except six of the employees had received their dues and no issue had been joined by them to such fact, therefore virtually it seemed to be the grievance of few individuals---On the basis of the facts and circumstances of the present case, and the nature of grievance propounded , present petition did not qualify the test and the condition of the "question of public importance"---Constitutional petition was held to be not maintainable in such circumstances and was accordingly dismissed.
Pakistan Muslim League (N) through Khawaja Muhammad Asif, MNA and others v. Federation of Pakistan through Secretary, Ministry of Interior and others PLD 2007 SC 642; Zulfiqar Mehdi v. Pakistan International Airlines 1998 SCMR 793 and PLD 2004 SC 583 ref.
(i) Constitution of Pakistan---
----Art. 9---Right to life---Scope---Right to life of a person/citizen included the right to livelihood.
(j) Constitution of Pakistan---
----Arts. 184(3), 199 & Pt. II, Ch. 1 [Arts. 8 to 28]---Constitutional petition before the High Court/Supreme Court---Maintainability---Service grievance---Contractual service---Person/employee not governed by statutory rules of service---Cases where the employment/service(s) was not regulated by any law, but by non-statutory rules or contractual stipulations, and no specific forum was designated for the resolution of such service issues, an infringement of any condition of such a contract shall at the most entitle and clothe the employee to avail his ordinary remedy for the breach of contract and wrongful action against him, before the court of plenary jurisdiction---In such a situation, it could not be urged that the fundamental right(s) of the employee had been violated conferring upon him a right to enforce the same in terms of Art.199 and/or under Art.184(3) of the Constitution.
(k) Habib Bank Limited Staff Service Rules, 1981---
----Rr. 15, 16, 17 & 18---Constitution of Pakistan, Arts. 9, 25 & 184(3)---Constitutional petition under Art. 184(3) of the Constitution challenging the policy decision taken by the Board of Management of Habib Bank Limited ("the Bank") by which 308 employees of the Bank were compulsorily retired early and services of 2 employees were terminated by paying them three months dues---Maintainability---Plea of employees in question (petitioners) was that they were compulsorily retired by the Bank on basis of "changed staffing needs" but the changing needs of the Bank were neither specified nor shown, thus the action against them was arbitrary, whimsical, capricious and unfair, and that some of the employees of the Bank who were equally placed as the employees in question (petitioners) had been retained, therefore they had been discriminated against---Plea of the Bank was that employees in question had no fundamental right(s) which could be said to have been violated by the Bank; and that the employees were simply contract employees of a (private) Bank, whose services had been dispensed with strictly as per the terms of the contract (i.e.) Habib Bank Limited Staff Service Rules, 1981---Validity---By virtue of Rr.15 & 17(a) of Habib Bank Limited Staff Service Rules, 1981, the Bank had the due authority to bring to an end the services of its employees by way of termination/early retirement, likewise, the employee also had the option to give up the employment of the Bank in view of Rr.16 & 18 of the said Rules---When R.17(a) of Habib Bank Limited Staff Service Rules, 1981 was invoked at a large scale for employees of the Bank pursuant to the decision of the Board of Management it shall be deemed that the decision and the action was primarily founded upon commercial, business, administrative wisdom, the prudence and judgment of a private enterprise for the better interest of the institution, which might involve and be based upon financial constraints and considerations and/or for the restructuring and revamping of the staff (ability, efficiency and skill wise)---Such decisions were not justiciable by the Supreme Court, while sitting as a court of appeal over it---No fundamental right to life of the employees had been violated by the Bank to satisfy the second condition of Art.184(3) of the Constitution warranting interference by the Supreme Court---Employees had not provided for comparison, any dates or material or the particulars of the persons, who were equally placed as them and had been retained---Even otherwise it was for the Bank management to decide about the usefulness of the employees or otherwise---Obviously, it had to be the evaluation of the management as to who was the employee(s) worthy of serving the best interest of the Bank, and as to who was more suitable, so as to be retained and those who should retire---Impugned decision of the Board of Management in the present case had been made pursuant to the Board resolution and seemingly on the basis of considerations of the Bank, therefore, the question of arbitrariness and lack of assigning reasons etc. had no relevance to the matter---Provisions of Art.25 of the Constitution did not help the cause of the employees and no case of discrimination in terms of said Article had been made out---Constitutional petition was held to be not maintainable in such circumstances and was accordingly dismissed.
(l) Constitution of Pakistan---
----Art. 184(3)---Constitutional jurisdiction of Supreme Court under Art. 184(3) of the Constitution---Scope---Where a case was not made out in terms of Art. 184(3) of the Constitution, jurisdiction should not be exercised on the plea of pity, compassion and humanitarian reasons only.
Muhammad Akram Sheikh, Senior Advocate Supreme Court (assisted by Hassan Murtaza, Advocate, Sajeel Shahryar Swati, Advocate and Syed Riaz Hussain, Advocate) and Mehmood A. Sheikh, Advocate-on-Record for Petitioners.
Ch. Aitzaz Ahsan, Senior Advocate Supreme Court (assisted by Gohar Ali Khan, Advocate and Kashif Ali Malik, Advocate) and M.S. Khattak, Advocate-on-Record for Respondents.
Zulfiqar Khalid Maluka, Advocate Supreme Court for Applicants (in C.M.A. No.1899 of 2012).
Sher Muhammad Baloch, Applicant in person (in H.R.C. 14127-S of 2009 and H.R.C. 13486-S of 2010).
Dates of hearing: 15th, 16th and 17th October, 2012.
JUDGMENT
MIAN SAQIB NISAR, J.---Pursuant to the short order dated 17-10-2012 passed in the noted matter, whereby the said petition(s) was dismissed, the detail reasons are being hereby provided.
2. This petition, under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973 (the Constitution), has been initiated by 310 ex-employees (the petitioners) of Habib Bank Limited (HBL), respondent No.1 (the Bank), out of whom 308 were early (compulsorily) retired, pursuant to a policy decision taken by the Board of Management of the bank; and by invoking the provisions of Rule 17 of the Habib Bank Limited (Staff) Service Rules, 1981 (the Rules, 1981). Whereas the services of the two (petitioners) have been terminated under Rule 15 (supra), by paying them three months dues. Vide this petition, petitioners have challenged the aforesaid action of the Bank, with the prayer that "it is, therefore, prayed that this petition may be accepted, orders and decision passed by respondent No.1-bank for termination of services of the employees of the bank may be declared to be without lawful authority and of no legal effect and quashed. Respondent No.1 may be directed to lay down or prescribe for guidance of the officers parameters and criteria in the light of which such decision should be made indiscriminatory to prevent the employees from arbitrary and whimsical exercise of powers. Costs of the petition may also be awarded". When the instant matter came up for hearing before this Court on 29-11-2010, the following order was passed:--
"We have heard learned counsel for the parties at some length and have also considered the law laid down by this Court in cases where issue of a "person" in terms of Article 199 of the Constitution was one of the points in issue or the Banking company or a corporate body was either a respondent or a petitioner i.e. Airport Support Services v. Airport Manager (1998 SCMR 2268), Aithison College v. Muhammad Zubair (PLD 2002 SC 326), Pakistan International Airline Corporation v. Tanweer-ur-Rehman (PLD 2010 SC 676) and Muhammad Mubeen-us-Salam v. Federation of Pakistan (PLD 2006 SC 602). We find that in those cases, the question of distinction between the relief sought by a "person" in terms of Article 199(a)(ii) and Article 199(1)(c) was not raised which could have a strong bearing in the case we are seized of and similar matters. In these circumstances, we are persuaded to refer this matter to the Hon'ble Chief Justice for constitution of a larger Bench for rendering an authoritative judgment. Since this matter is pending since long, subject to the order of the Hon'ble Chief Justice this may be fixed for an early date. A notice shall also issue to learned Attorney-General for Pakistan."
3. Be that as it may, in the context of the instant matter; the facts of the case are:- that the petitioners were in the employment of the bank (most of the petitioners were either VP or AVP) and as per their own case, their services were regulated and governed by the terms and conditions envisaged by Rules, 1981, which (services) have been dispensed with as stated above and the petitioners are aggrieved of this action of the Bank; it is not the case of the petitioners that such rules were/are statutory in nature; and/or they were civil servants. For the facility of reference, Rules 15 and 17 being the germane rules for the purposes of the present petition, the relevant part thereof is reproduced:---
"15. Termination of Services.--- (1) Services of an employee in Category I may be terminated by the competent authority on 3 months' notice or on payment of a sum equal to his substantive pay for three months in lieu thereof:.........."
"17. Superannuation and retirement.---(1) Every employee shall retire from service:--
(a) on such date after he has completed twenty five years of service as the competent authority may, in the interest of the Bank, direct or
(b) where no direction is given under clause (a) on the completion of the sixtieth year of his age ........................................"
Earlier HBL was a private bank and was nationalized under the Banks (Nationalization) Act, 1974, however upon its denationalization, according to the petitioners, their performance was duly evaluated, and that being found to be satisfactory, all of them were retained by the Bank. Not only that, some of them were even rewarded. It is averred in the petition that most of the petitioners have excellent service record and in the ordinary course of employment, they were to retire on the completion of sixty years of age under clause (b) of Rule 17 (reproduced above), but the petitioners have been retired/terminated (in case of two) from service vide certain order(s)/letter(s) (note: different letters for different petitioner). In case of petitioner No.1, the order/letter is dated 13-1-2007, the relevant part whereof reads as under:--
"Dear Mr, Wahab,
The management would like to thank you for your services during the past years.
Going forward in line with the Bank's changed staffing needs, you are being retired from Bank service with effect from 13th January, 2007, in accordance with the rule # 17 of HBL (Staff) Service Rules - 1981.
In view of your sincere services to the Bank, the Management is pleased to grant you, in addition to all the benefits payable to you under the terms and conditions of employment, the following additional benefits."
Almost similar orders/letters were issued with regard to the other petitioners as well (note: in case of those against whom action is taken under Rule 15, the orders simply are based on that Rule). It is the grievance of the petitioners, that the exercise of power under Rule 17(1)(a) ibid, for their retirement, is pursuant to the "changed staffing needs", but without disclosing and justifying as to what those exigencies were; the petitioners had not been provided with any opportunity of hearing before the impugned action was taken, yet they have been deprived of their vested and fundamental right(s), which action is void being in breach of the rule of natural justice; the power(s) under Rules 15 and 17(1) ibid is (are) uncontrolled and unbridled and has been exercised not only in violation of the equality clause as enshrined by Article 25 of the Constitution, but in an arbitrary and whimsical manner which again is violative of the said Article; it is also their grouse that through the impugned action their fundamental right to life (Article 9) and the rights available to them as per Articles 3, 4, 8, 27, 29, 37 and 38 of the Constitution have been infringed; before taking the impugned decision, the Bank has not adverted to Rule 89 of the amended Habib Bank Limited (Staff) Service Rules, 1989, which reads below:--
"Rule 89: Encashment of leave preparatory to retirement
1. An employee shall exercise his option either to avail the leave preparatory to retirement or for encashment of the leave preparatory to retirement, (on attaining the age of superannuation or on completion of 30 years qualifying service) inasmuch as no power is vested with the bank to retire the employee under this rule before the attainment of 30 years service."
4. Furtherance to the petitioners case, Mr. Muhammad Akram Sheikh, their learned counsel, has submitted (1) that the forced retirement of the petitioners is contrary to the Bank's own rules, although such rules are non-statutory in nature, yet those do not empower the Bank to violate the same rules with impunity (2) that the petitioners have fundamental right to life and as they have been removed from service and deprived of their livelihood in a forced and coercive manner without following the rules in that regard, thus it tantamounts to depriving them of such right (to life), which action undoubtedly is against the provisions of Article 9 of the Constitution; in this context it is also submitted that the right to life should be given an extended/broader meaning, so as to include the right to livelihood; reliance in this behalf is placed on the judgments reported as Delhi Transport Corporation v. DTC Mazdoor Congress and others (AIR 1991 SC 101 paragraph 223 at pages 172 and 173), Arshad Mehmood and others v. Government of Punjab through Secretary, Transport Civil Secretariat, Lahore and others (PLD 2005 SC 193 at page 232) (3)--; the Bank is a 'person' in terms of Article 199(1)(c) of the Constitution as it is distinct from an 'ordinary private individual', because it (the Bank) is owned and controlled by the State, therefore, for all intents and purposes, thus an appropriate writ petition against the Bank is maintainable not only under the Article supra, but independently under Article 184(3) as well. In this behalf emphasis has been laid on the "function test" and reference has also been made to Articles 97, 141 and 142 of the Constitution in order to substantiate that the executive authority of the Federation is extendable to such matters (note: see item No.28 of the Federal legislative list), in regard to which it has the empowerment to legislate; besides, the Bank statedly is the extended arm of the State and thus it is claimed to be performing its functions in connection with the affairs of the State/Federation. It may be pertinent to mention here in the context of function test it is also argued that the Bank is, under the regulatory control of the State Bank of Pakistan (SBP) and therefore amenable to the writ jurisdiction (5) It is urged that the present is the era of substantial justice and, therefore, in order to alleviate the sufferings and miseries of the petitioners, this Court should act magnanimously while exercising its jurisdiction/power in order to grant relief to the petitioners in the interest of justice and on humanitarian grounds; (6) It is pleaded that the present matter is of immense public importance as it shall affect not only a large number of persons involved in the case, but shall also settle the principles of law in relation to the jurisdiction of this Court under Article 184(3) and the issues involved in the matter, which shall have vital impact on the…
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