Maqbool Hussain Qureshi Vs. the Federal Government of Pakistan.

IN THE FEDERAL SHARIAT COURT

( Appellate Jurisdiction )

PRESENT

Mr.Justice Gul Mohammad Khan,Cheif Justice Mr.Justice Mufti Syed Shujaat Ali Qadri Mr.Justice Fakhruddin H. Shaikh -o-

SHARIAT PETITION No.25/I of 1984 Magbool Hussain Petitioner Qureshi

Versus

The Federal Govt. Respondent of Pakistan

Counsel for the Rana M.F.Rehman, petitioner Advocate.

Date of Institution 12-11-1984 Date of hearing 22-10-1985 Date of decision 22-10-1985 -o-

FL/

S.P.No:25/I of 1984 -2-

JUDGMENT:

GUL MOHAMMAD KHAN, CHIEF JUSTICE.- The learned counsel assails through this shariat petition the rule 15(I) of the National Bank of Pakistan (Staff Service Rules 1980) mainly on the following grounds:- The employees of the National Bank 'of Pakistan have become civil servants after the Bank was nationalised and therefore they have the same protection of Show Cause Notice as held in S.S.M.- No.263/A/83;

It is the responsibility of the Govern- ment to provide job/employment to every citizen and therefore, the protection will be available to all those persons who have been given the jobs;

As the protection is provided to 'workmen' of the National Bank of Pakistan, the rules of the same terms and conditions suffer from discrimination and therefore, repugnant to Islam;

The omission of the protection in the case of the Officers is against 'adl' and advances 'fasad';

The impugned rule allows arbitrary use of power by the competent authoritviihfthis.there- fore, liable to be struck down;

The same rule reduces the employees to the level of the private servants and leaves them at the whim and caprice of the employer.

2.We have heard the learned counsel at length but do not find any justification to take a view different from the one already taken. A similar matter about the same Bank came up before this Court in S.P.No.9/K of 1983 (Islam Hussain Vs. National Bank of Pakistan), wherein a Bench of six Judges of this Court held that the case of the such employees was distingu- ishable from those of the civil servants in S.S.M. No.204/P/83, S.S.M.No.84/S/84, S.S.M.No.71/B/84 etc.

3..It will also be ,useful to reproduce the following paragraphs (50 to 53) of the judgment in S.S.M.No.263/P/1983 for facility of ready reference to say that the respondent ;Bank, being a commercial.

undertaking its employee would not enjoy the ,above said protection:- "One of the grounds of safeguard of Civil Servants rights is that the government is under a duty to provide employment to people. Consequently it cannot throw out its servants except for cause. As will be seen later there is ample justification in sharia for this."

"This principle cannot apply to private servants other than civil servants unless any law is made for safeguard of their interest or service tenure."

"Applying this principle it would be clear that the service of Cantonment Board as constituted under the authority of Cantonments Act II of 1924 which is a local authority or of the WAPDA and Universities which are Statutory Corporations cannot be held to be entitled in sharia to any other safeguard except safeguards pointed out in the above judgment of Daryyab Yousaf Qureshi Vs. Chairman WAPDA )PLD 1983 FSC 17)".

"We are in agreement with the argument of the learned counsel of the Provincial Governments, Deputy Attorney General and Moulvi Sirajul Bag, learned counsel for the WAPDA, that in some cases particularly in respect of statutory corporations dealing with commercial business it may not be in public interest to provide such safeguards. Shariat Petition No.1/I of 1984, Shariat Petition No.2/L of 1983 and Shariat Petition No.3/L of 1983 are there- fore liable to be dismissed. WAPDA Act and laws relating to Universities will be examined in other respects. The Cantonment

Act II of 1924 has been examined by the Council of Islamic Ideology and it is unnecessary for this Court to re-examine it.

, Even the other points have no merit. The workmen and officers are.two different classes and as there is no discrimination in any of them the plea carries no weight. Further, thereia7injustice when a person is denied something in which he has no vested right. The plea about arbitrary use of power is also unjustified because a representation to another higher authority is never barred. Thus if there is any arbitrary or whimsical exercise of •power at one level it may be rectified at the other. In view of the above, we think that the National Bank of Pakistan is a commercial organiza- tion and therefore, the impugned rule 15(I) is not repugnant to Sharia. This petition consequently, has no merit and is dismissed.

A-yr"-

CHIEF JUSTICE

JUDGE-III.

JUDGE?-IV

Islamabad dated the 22nd of October, 1985

A.RAHMAN/******