HABIB BANK LTD. vs The STATE

ORDER

' GULZAR AHMED, J.---Leave to appeal was granted in this matter vide order dated 1-7-2009 to consider the question as to whether the appellant Habib Bank Limited was privatized in the year 2004 and thus was not amenable to the writ jurisdiction of the High Court as contemplated under Article 199 of the Constitution of Islamic Republic of Pakistan.

2. We have heard learned counsel for the appellant. The respondent is ex parte. The appellant Habib Bank Limited (hereinafter called the HBL) was a nationalized bank, which was owned and controlled by the Federal Government under the. Banks (Nationalization) Act, 1974. It appears that under the Privatization Commission Ordinance (LII of 2000), the HBL was offered for privatization and Agha Khan Foundation for Economic Development (hereinafter called for AKFED) made a bid for purchase of 51% of the issued and paid up capital of the HBL, ultimately an Agreement dated 26-2-2004 was entered into by AKFED, the Privatization Commission and State Bank of Pakistan for the purchase of 51% shares of HBL and for taking over its management.

3. The facts regarding privatization of HBL are elaborately mentioned in the case of Dr. Akhtar Hassan Khan and others v. Federation of Pakistan and others (2012 SCAM 455). In this case the action of privatization of HBL was upheld by this Court.

4. The respondent No, 1, an employee of HBL was proceeded against for misappropriation of sum of Rs, 232 million. An F.I.R. Against the respondent No, 1 was registered so also a Reference in the Accountability. Court was also filed against him. Departmental action was also taken against him by which he was suspended. Ultimately through letter dated 13-1-2007, the service, of the respondent No,1 was terminated under a Separation from Service Policy by which large number of employees of HBL were retired or their services were terminated on payment of substantial benefit.

The respondent No, 1 filed a Constitution Petition in the High Court of Sindh at Karachi for payment of Pay and Allowances from February, 2005 and for recalling the order of his Separation/Termination from service. The learned Division Bench of the High Court through the impugned judgment has found that service of the petitioner was terminated in January, 2007 when the controlling shares and management of HBL stood already vested in AKFED, therefore, for such grievances he was not entitled to invoke constitutional jurisdiction but found that the respondent No,1 is entitled to claim from HBL his salary dues from the date of his suspension till the transfer of controlling shares in AKFED i,e, up to 24-2-2006 after adjusting his outstanding liabilities.

5. The terms and conditions of service of employees of HBL were governed by HBL (Staff) Service Rules, 1981, which were not a statutory rules of service and thus in terms of the case of Pakistan International Airline Corporation and others v. Tanveer-ur-Rehman and others (PLD 2010 SC 76), the respondent No, 1 could not have filed and maintained a Constitution Petition in the High Court for enforcement of terms and conditions of his service for that his relationship with his employer was strictly governed by the rules of Master and Servant and the only remedy provided by law in this regard is only by way of a civil suit and not otherwise. Thus even if it is assumed that HBL was a government owned and controlled Bank on a date of suspension of service of the respondent No, 1, his service being not governed by statutory rules of service, he will not be entitled to maintain a constitution petition in the High Court for payment of his salary, dues for the period of his suspension as allowed by the impugned judgment.

6. We, therefore, find that the impugned judgment to the extent of relief granted to the respondent No, 1 is not in accordance with law in that High Court has no jurisdiction to grant the same under the constitutional jurisdiction. We, therefore, allow this appeal, set aside the impugned judgment and dismiss Constitution Petition No, 2355 of 2008 filed by the respondent No,1 in the High Court.