Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: UNITED BANK LIMITED EMPLOYEES' UNION VS Respondent: UNITED BANK LTD
2000 P L C (C
2000 P L C (C.S.) 930
[Supreme Court (AJ&K)]
Present: Sardar Said Muhammad Khan, C. J., Basharat Ahmed Shaikh and Muhammad Yunus Surakhvi, JJ
UNITED BANK LIMITED. EMPLOYEES' UNION through President and General Secretary and 4 others
Versus
UNITED BANK LIMITED through President and 3 others
Civil Appeal No. 54 of 1999, decided on 16th March, 2000.
(On appeal from the judgment of the High Court dated 4‑2‑1999 in Writ Petition No. 494 of 1997).
Azad Jammu and Kashmir Service Tribunal Act (XXH of 1975)‑‑‑
‑‑‑‑S. 4‑‑‑Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S. 44‑‑‑Retrenchment‑‑‑Writ petition‑‑‑Maintainability‑‑‑Officers, cashiers, clerks, gunmen and peons serving in Bank filed writ petition to challenge their retrenchment at the hands of functionaries of the Bank‑‑‑Writ petition was maintainable against a "person" as defined in subsection (5) of S.44 of Azad Jammu and Kashmir Interim Constitution Act, 1974 who was performing functions in connection with affairs of Azad Jammu and Kashmir, a Local Authority or the State‑‑‑Bank although was a corporation but it was under the control of Government of Pakistan and not under control of Azad Jammu and Kashmir Council or Azad Government of State of Jammu and Kashmir and in circumstances, did not fall under definition of "person"‑‑‑Bank did not perform functions in connection with affairs of Azad Government of State of Jammu and Kashmir, Local Authority or Azad Jammu and Kashmir Council‑‑‑Writ petition was rightly dismissed by High Court being not maintainable.
Muhammad Rashid Choudhry v. Chairman, AKLASC and others f995 SCR 73 and Salah‑ud‑Din and 2 others v. Frontier Sugar Mills & Distillery Ltd., Tokht Bhai and 10 others PLD 1975 SC 244 ref.
Raja Muhammad Hanif Khan, Advocate for Appellants. Abdul Rashid Abbasi, Advocate for Respondent No.3.
Date of hearing: 14th March, 2000.
JUDGMENT
BASHARAT AHMAD SHAIKH, J.‑‑‑United Bank Limited introduced a retrenchment scheme on 9th October, 1997. Thirty‑one officers, cashiers, clerks, gunmen and peons filed 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.
We have heard the learned counsel for the parties on two preliminary points, namely the locus standi of the appellants' Union to file this appeal and the maintainability of the writ petition.
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 be 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‑‑
(i) 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 to do, or to do that which he is required by law to do; or
(ii) 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
(b)????????????????????..
(i) ...................................................................................
(ii)????????????????????..
(c) ...................................................................................
(3)???.......................................................................
(4)?????????..???????????
(5) In this section, unless the context otherwise requires, 'person' includes anybody 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 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 control 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. Apart from that, it does not A perform functions in connection with the affairs of the Azad Government of the State of Jammu and Kashmir, local authority or the Azad Jammu and Kashmir Council. In Muhammad Rashid Choudhry v. Chairman AKLAS and others (1995 SCR 73) this Court followed the judgment of the Supreme Court of Pakistan reported as Salah‑ud‑Din and 2 others v. Frontier Sugar Mills & Distillery Ltd., Tokht Bhai and 10 others PLD 1975 SC 244 in so far as it laid down as follow
"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 functioning by appointing the heads and other senior officers of these corporations, by regulating their composition and procedures by appropriate statues, and by finding ‑funds for financing their activities."
This judgment is fully applicable to the present case. United Bank is not financed by the Azad Government of the State of Jammu and Kashmir Council nor it is under their of exercise of public power of the State in Therefore, it cannot be said that it is performing function 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 taken by this Court in P.L.A. No.44 of 1998 titled Amin Spinning view was 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 fails but we leave the parties to bear their respective costs in this court.
H.B.T/11/SC(AJK) ???????????????????????????????????????????????????????????????????????????? Petition dismissed.