SHAHID ANWAR BAJWA, J.---These are petitions by employees of various organizations. Through this order we propose to decide the following two questions in respect of such organizations and these petitions:--
(1) Whether the organization in question is a person within contemplation of Article 199(5) of Constitution of the Islamic Republic of Pakistan?
(2) If answer to the first question is in affirmative whether there are statutory rules so that an employee of such an organization can maintain a Constitution Petition in respect of any grievance relating to his employment in such an organization?
2. The employees belong to the following organizations:--
(1) Pakistan Telecommunication Company Ltd.
(2) United Bank Ltd.
(3) Karachi Electric Supply Company Ltd.
3. Mr. Muhammad Nawaz Shaikh, learned counsel for the petitioners in C.P. No.D-526 of 2004 and C.P. No.D-156 of 2007 relied upon para 15 of judgment in Pakistan Telecommunication Company Limited, through General Manager and another v. Muhammad Zahid and 29 others, 2009 PLC (CS)
1001. Learned counsel with reference to judgment of the Honorable Supreme Court in the case Pakistan International Airlines Corporation v. Tanweer-ur-Rehman, Civil Appeal Nos. 172-K of 2009 submitted that the judgment of the Supreme Court in the case of Muhammad Zahid though a judgment earlier in time has not been dissented/discussed in judgment in the case of Tanweer-ur- Rehman.
4. Mr. Moula Bux Khoso, learned counsel for the petitioner in C.P. No. D-1871 of 2008 referred to sections 3, 9 and 20 of the Pakistan Telecommunication Corporation Act, 1991. Thereafter the learned counsel referred to various provisions of the Pakistan Telecommunication (Re- organization) Act, 1996, specifically to section 35(2) and section 36 of the Act of 1996. Learned counsel submitted that the Act of 1996 repealed the Act of 1991. He submitted that section 34 provided for incorporation of Pakistan Telecommunication Company Ltd., as a Company, under the provisions of the Companies Ordinance, 1984 and section 36 granted power to the Federal Government to transfer any property, rights and liabilities of the Corporation established under the Act of 1991 to the Company established under the Act of 1996 or to other authorities named therein.
Thereafter learned counsel referred to subsection (2) of section 35 and sections 36(1) and 36(2).
Same are reproduced as follows:--
36. Terms and conditions of service of employees.---(1) No person transferred to the Company pursuant to subsection (2) of section 35, hereinafter referred to as "Transferred Employee", shall be entitled to any compensation as a consequence of transfer to the Company.
Provided that the Federal Government shall guarantee the existing terms and conditions of service and rights, including pensionary benefits of the Transferred Employees.
(2) Subject to subsection (3), the terms and conditions of service of any Transferred Employee shall not be altered adversely by the company except in accordance with the law of Pakistan or with the consent of the Transferred Employees and the award of appropriate compensation."
5. Learned counsel submitted that by virtue of the first proviso to subsection (1) of section 36 the rules framed in respect of employees of PTCL are statutory rules. Learned counsel further submitted that on 12-3-2006 an agreement was entered into between the Government of Pakistan and Messrs Etisalat International Pakistan LLC, a company incorporated at Dubai under the Laws of United Arab Emirates (hereinafter referred to as the Etisalat). By that agreement 26% `B' class shares of PTCL were sold by Government of Pakistan to Etisalat and management of PTCL was consequently handed over by the Government to the Etisalat. Learned counsel further submitted that at present 26% shares are owned by the Etisalat, 62% shares are owned by Government of Pakistan and 12% shares are owned by general public. Learned counsel relied upon Abdul Rahim v.
Pakistan Broadcasting Corporation, through Director-General and 8 others, 1992 SCMR 1213 to support his contention that transfer of services of an employee of a Government department to a Corporation on the terms and conditions to which he was entitled before the transfer did not imply that such transfer amounted to change in status of civil servant as he remained civil servant nevertheless. Learned counsel further relied upon Divisional Engineer Phones, Phones Division, Sukkur and another v. Muhammad Shahid and others, 1999 SCMR 1526 for the following observations:-- "In cases of Corporation created by the government through statutory instruments if existing employees are transferred to the Corporation in the absence of any provision to the contrary, the transferred employees continue to remain in the service of Corporation on the same terms and conditions under which they were working before their transfer to the Corporation. Therefore, if an employee of the corporation before his transfer to the corporation was a civil servant, he continues to be a civil servant. In all other cases, where an employee is appointed in the service of the Corporation after the Corporation is established, his service is governed by the Service Rules of the Corporation. If such Rules are not statutory, the principle of master and servant governed the relationship between the employee and Corporation."
6. Learned counsel next relied upon Syed Arshad Ali and 55 others v. Pakistan Telecommunication Company Limited, through its President and 8 others, PLD 2007 Karachi 214 for the contention that since 62% of the shares were still owned by the Government, writ petition would be maintainable.
Learned counsel next relied upon Syed Arshad Ali v. Pakistan Telecommunication Company Limited 2007 SCMR 1786 by which judgment order of the Sindh High Court reported at PLD 2007 Kar. 214 has been up-held by the Supreme Court.
7. Mr. Nishat Warsi, learned counsel for petitioner in C.P. No.D-827/2009 referred to Gazette Notification issued by the Government of Pakistan and published in the Gazette of Pakistan on May 5th 2006 in connection with privatization of PTCL. He pointed out that out of prior to the Gazette notification 88% of `A' and classes were owned by the Government out of them 26% shares of PTCL were sold by Government of Pakistan to Etisalat. He further submitted that PTCL has an issued capital of Rupees 51 billion comprising of 5 billion ordinary shares with a par value of Rs.10. Out of these 3.774 billion shares are `A' class ordinary shares and 1.3226 billion are `B' class ordinary shares.
It was stated that in line with the Government of Pakistan privatization agenda, the Government decided to sell Rs. 1.326 billion 'B' class shares (all the `B' class shares) representing 26% of share capital along with management control of PTCL and its group of companies. Regarding respective voting strength of these shares at page 1062 of the Gazette Notification it was stated to be as under:-- "The `A' and `B' ordinary shares rank pari passu in all respects save that for the purpose of election of directors at meetings of the shareholders of PTCL each "B" ordinary share shall carry four votes and each "A" ordinary share shall carry one vote. In respect of dividends, voting rights on all matters (other than election of directors) and all other rights as shareholders; there is no difference between "A" ordinary shares and "B" ordinary shares.
8. Learned counsel further submitted that no election of Directors since sale of share to Etisalat has yet taken place. Learned counsel lastly submitted that 26% does not constitute majority.
9. Mr. Aziz-ur-Rehman and Mr. Shujauddin who appeared for petitioners in C.P. No.D-1332 of 2006 and in a number of other petitions firstly relied upon Muhammad Zahid's case (supra) and specifically on the observations at pages 1016 and 1032. With reference to Tanweer-ur-Rehman's case (supra) learned counsel submitted that since their terms are guaranteed by section 36 of the Act of 1996 and Regulations framed under the Act of 1991 their service is regulated by statutory Regulations. Learned counsel also submitted that section 59(2) of the Act of 1996 protected the Regulations framed under Act of 1991 and keeps rights of employees intact.
"59(2) Notwithstanding anything contained hereinbefore, all orders made, actions taken, vesting orders or notifications, issued, property, assets and liabilities of the Corporation vested or transferred and the employees of the Corporation transferred to the Pakistan Telecommunication Authority, Frequency Allocation Board, Pakistan Telecommunication Company Limited, National Telecommunication Corporation or Pakistan Telecommunication Employees Trust, under any of the power conferred or vested under the Pakistan Telecommunication (Re-organization) Ordinance, 1995 (CXV of 1995), the Pakistan Telecommunication (Re-organization) Ordinance, 1996 (XXX of 1996), the Pakistan Telecommunication (Re-organization) Ordinance, 1996 LXXVII of 1996) shall be deemed always to have been lawfully and validly made, taken, issued, vested or transferred under the provisions of this Act and shall continue to be in force unless amended, varied, withdrawn, rescinded or annulled by a person or authority competent to do so under this Act."
10. Learned counsel relied upon Manzoor Ali and 39 others v. United Bank Limited through President, 2005 SCMR 1785 to contend that rights once granted to the employees remain protected and change of ownership does not extinguish such rights. Learned counsel further submitted that the payments required to be made in terms of what he called, so called privatization agreement have not yet been proved to have been made.
11. Mr. Malik Muhammad Aqil Awan, learned counsel for petitioner in C.P. No.D-976 of 2007 submitted in his usual erudite and vociferous style that even where there are no statutory rules if a question other than terms and conditions of employment is raised, Constitution Petitions would be maintainable. He further submitted that even where there are no statutory rules if action is alleged to be malafide, writ petition would be maintainable and same would be the position where the action taken is arbitrary. He referred to judgment of full bench of this Court in Muhammad Dawood and others v. Federation of Pakistan and others, 2007 PLC (CS) 1046. Learned counsel also referred to judgment, of the Honorable Supreme Court passed" on 13-4-2010 in C.P. No.1863 of 2009 (Executive Council, (Allama Iqbal Open University, Islamabad, through its Chairman and another v.
Dr. M. Tufail Hashmi). Learned counsel bewailed and narrated litany of agonies of the petitioners and submitted that when section 2-A was inserted-the petitioners and a whole lot of others were thrown from Labour Courts, Civil Courts and even from the High Courts to the Service Tribunal and when Muhammad Mubeen-us-Slam's case PLD 2006 SC 602 came they were thrown out of the Service Tribunal. Thereafter this High Court in Muhammad Dawood's case 2007 PLC (C.S.) 1046 and the Service Tribunal in Rehan Butt's case 2008 PLC (CS) 734, 2008 PLC (CS) 734 held section 10 of the Removal from Service (Special Powers) Ordinance, 2000 to be ultra vires of Article 212 of the Constitution of Islamic Republic of Pakistan. In the presence of these two judgments, the Federal Service Tribunal without looking at these two judgments and without referring to them in Humayoon Akhtar and others v. WAPDA House, Lahore and others SBLR Tr. 131 held that the appeals before the Federal Service Tribunal of those employees who had been proceeded against under the RSO would be maintainable. Learned counsel submitted that it is sad and ironic that this was done by the Tribunal, in the face of two judgments one by 'a full bench of this Court and other by an equal bench of the Federal Service Tribunal and thus, the Federal Service Tribunal acted in ignorance of, if not in total blindness, in respect of, the above two judgments. Learned counsel submitted that now in Dr. Tufail Hashmi's case (supra) Supreme Court has practically come to the same conclusion that this High Court had 'done in Muhammad Dawood's case. Learned counsel also relied upon Civil Aviation Authority, through its Director-General v. Jawaid Ahmed, 2009 SCMR
956. Learned counsel also referred to House Building Finance Corporation, through Managing Director Karachi and another v. Inayatullah Shaikh 1999 SCMR 311. Lastly the learned counsel relied upon Ms. Anisa Rehman v. PIAC and another 1994 SCMR 2232 and submitted that at least one door should be kept open for the down trodden and trampled persons.
12. Mr. M. A. K. Azmati, learned counsel for the petitioner in C.P. No.D-2311 of 2008 adopted arguments of Mr. Khoso and Mr. M.M. Aqil Awan and pleaded that this Court be not "influenced" by any judgment. When he was specifically asked as to which judgment he had in mind, the learned counsel stated that he had Tanweer-ur-Rahman's judgment in mind. When it was pointed out to the learned counsel that it was a dictum laid down by the Supreme Court and in terms of Article 189 of the Constitution of the Islamic Republic of Pakistan, it is binding on this Court and therefore, how can this Court not follow that judgment, the learned counsel submitted that it is for this Court to find out a way around that judgment.
13. Mr. Nihal Hashmi, learned counsel for petitioner in (C.P. No.2234 of 2008) and Mr. Masood Ahmad Bhatti in (C.P. No. D-2520 of 2009) who appeared in person adopted arguments of Mr. Khoso. Mr. Muhammad Qutabuzaman learned counsel for petitioner in (C.Ps. Nos. D-594 of 2009 and 851 of 2009) and Mr. Mohsin Imam learned counsel for petitioner in C.Ps. Nos.D-2014 to 2016 of 2006 adopted arguments of Mr. Malik M. Aqil Awan. Mr. M.A. Khan, learned counsel for petitioner in (C.P.
No.2506 of 2009) adopted arguments of Mr. Khoso. He however submitted that it is not clear from any document whether PTCL has been sold with assets and liabilities, or only assets have been sold. Mr. Nihal Hashmi, holding brief for Mr. Haseeb Rehman, learned counsel for petitioners in C.Ps.
Nos.D-2017 to 2048 of 2008) adopted arguments of Mr. Khoso.
14. Mr. Mushtaq Shaikh, who appeared in (C.P. No. D-720 of 2008, by an ex-employee of United Bank Ltd.) submitted that there are no statutory rules of service in UBL. He pleaded that petitioner was dismissed from service on 15-8-2001 and privatization of U.B.L. took place on 14-11-2002. He submitted that cause of action accrued prior to privatization. Therefore, petition would be maintainable. In this regard he relied upon Manzoor Ali and 39 others v. United Bank Limited through President, 2005 SCMR 1785 and Muhammad Dawood and others v. Federation of Pakistan and others, 2007 PLC (C.S.) 1046.
15. Respondent PTCL was represented by five learned counsel: Mr. Haider Waheed, Mr. Khurram Rasheed, Ms. Azeema Naseer, Sanaullah Noor Ghori and Mr. Sakhiullah Chandio.
16. Mr. Haider Waheed who led arguments on behalf of PTCL referred to Article 199(5) of the Constitution of the Islamic Republic of Pakistan and submitted that the key element in respect of a body corporate is that it must be either "any authority of" or "under the control of", the Federal Government or a Provincial Government. He submitted that although the Etisalat owns only 26% `B' class shares but since for the purpose of election of Directors each `B' class share carries 4 votes compared with each `A' class share and since under the Companies Ordinance, 1984 management of affairs of an organization vests in its Board of Directors, PTCL is not an organization under the control of the Federal Government. Learned counsel referred to section 90 of the Companies Ordinance, 1984 and submitted that law permits classification of shares into different classes with varying rights and therefore giving 4 votes to each "B" class shares and 1 vote to "A" class share in the matter of election of Director is not violative of any provision of the Companies Ordinance, 1984.
Learned counsel submitted that PTCL was privatized in 2006 and is not an organ of the State and it is managed and controlled by the Etisalat. Learned counsel referred to Province of N.-W.F.P., through Secretary, Local Government and Rural Development, Peshawar v. Pakistan Telecommunication Corporation through Chairman and others PLD 2005 SC 670 to contend that since PTCL is liable to pay certain taxes it cannot be treated as a person within contemplation of Article 199(5) of the Constitution. Learned counsel referred to Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd. Tokhat Bhai and 10 others, PLD 1975 SC 244 and submitted that there is a three fold test for holding an organization to be a person within the contemplation of Article 199(5) of the Constitution of: (i) such organization must be entrusted with a sovereign function of the State, (ii) does the Government control the organization, (ii) who provides bulk of the funds of the organization. Learned counsel next referred to Masood Ahmed Toor and 4 others v. Federation of Pakistan, through the Secretary to the Government of Pakistan, Ministry of Housing and Works, Islamabad and others, 2000 SCMR 928 to contend that primary test must always be whether the functions entrusted to the organization involve some exercise of sovereign or public powers, whether the control of the organization in a substantial manner is in the hands of Government and whether bulk of the funds was provided by the State. Learned counsel then referred to Anoosha Shaigan v. Lahore University of Management Sciences, through Chancellor and others, PLD 2007 Lah. 568 to contend that control for the purpose of Article 199 (5) of the Constitution, must be "absolute control" and "executive control". Learned counsel once again referred to Salahuddin's case in connection with such functions. Learned counsel thereafter referred to the following judgments:-
(1) Muhammad Yousuf through Attorney v Chairman, Karachi Electric Supply Corporation and another, 2009 YLR 1038. It was held that since in KESC 73% shares are held by private persons, KESC is not a person within contemplation of Article 199(5) of the Constitution of Islamic Republic of Pakistan.
(2) Khalid Mahmood v. State Bank of Pakistan through Manager and 3 others 2005 MLD 1798. It was held that writ petition against private person would not be maintainable.
17. Explaining Muhammad Zahid's case learned counsel submitted that a perusal of Muhammad Zahid's case indicates that it was against a judgment in a High Court Appeal of 2002. Therefore, the writ petition from which the High Court Appeal had arisen must have been filed before or, at the most, during 2002. High Court Appeal was decided in 2004 and Civil Appeal, was filed in 2005. He submitted that during all this period PTCL had not been privatized and therefore the judgment is not germane to the question in the present petitions.
18. Regarding the question whether PTCL has statutory rules or not learned counsel submitted that it is only actions which have been saved by section 59(2) and not the law itself or rules or any Regulation under the law. He, therefore, submitted that the. Regulations framed under the Act of 1991 have not been saved by the Act of 1996. He referred to section 36 of the Act of 1996 and section 9 of the Act of 1991. Learned counsel submitted that the petitioners in C.Ps. Nos. 2017 to 2048 of 2009 have availed Voluntary Retirement Scheme benefits and it amounted to a contract within contemplation of section 36 of the Act of 1996.
19. Mr. Mehmood Abdul Ghani, learned counsel for respondent United Bank Ltd., in C.P. No. 720 of 2008 and respondent Karachi Electric Supply Corporation Ltd., in C.P. No.D-613 of 2008 referred to the judgment of the Supreme Court in Executive Council, Allama Iqbal Open University, Islamabad, through its Chairman and another v. Dr. M. Tufail Hashmi (C.P. No. 1863 of 2009) decided by the Honourable Supreme Court on 13-4-2010. Learned counsel referred to the following further case- law: 1.Ejaz Ali Bughti v. PTCL and others 2008 PSC 1224.
2.S.M. Gharib Nawaz Deccawala v. KESC and others Civil Petition No.106-K of 2007, decided by the Honourable Supreme Court on 23-10-2008.
3.Zulfiquar Ali Shar v. Allied Bank of Pakistan, C.P. No.D-109 of 2005.
4.Khalid Mahmood v. Habib Bank Ltd. and others 2005 MLD 1798.
5.M.C.B. Ltd. Retired Executive Welfare Association v. State Bank of Pakistan Writ Petition No. 14499 of 2009, decided by a single bench of Lahore High Court on 15-12-2009.
6.Izhar Hussain, and others v. Allied Bank, and others 2003 CLC 1864.
7.Abdul Malik v. Habib Bank Ltd. and others 2008 CLC 339.
8.Zeba Mumtaz v. First Women Bank Ltd. and others, PLD 1999 SC 1106.
20. Learned counsel also placed on record calculation of type of shares in PTCL as well as a copy of Gazette Notification dated 13th March, 2008 through which notification PTCL has been exempted from the provisions of the Removal from Service (Special Powers) Ordinance 2000.
21. Ms. Azeema Naseer who also appeared for PTCL in a number of petitions relied upon Pakistan International Airlines Corporation v. Tanweer-ur-Rehman, Civil Appeal Nos. 172-K of 2009 and submitted that it is Etisalat which controls PTCL and therefore writ petition is not maintainable. She also submitted that PTCL does not have statutory rules. Mr. Sanaullah Noor Ghori, relied upon Abdul Ghafoor Baluch and 11 others v. Pakistan Telecommunication Company Limited and 11 others 2009 Law Notes 30 to contend that it had been held by the Federal Service Tribunal that PTCL did not have statutory rules. He submitted that this judgment has been upheld by the Supreme Court in Ejaz Ali Bughti v. PTCL and others, 2008 PSC 1224. Learned counsel submitted that he was arguing only on the question of absence of statutory rules and would adopt arguments of Mr. Haider Waheed on the point that PTCL is not an organization owned and controlled by the Government. Mr. Khurram Rasheed another counsel for PTCL while adopting arguments of Mr. Haider Waheed relied upon the following judgments:-
(1) Syed Arshad Ali and others v. Pakistan Telecommunication Company Ltd. and others 2008 SCMR 314 on the ground that if alternate remedy is available writ petition would not be maintainable.
(2) Ahmed Khan Niazi v. Town Municipal Administration, Lahore, through Town Municipal Officer and 2 others, PLD 2009 Lahore 657 on the point that if the legislated Act stands repealed regulation framed thereunder also stands repealed. On the same point learned counsel also relied upon Muhammad Din v. Nazar Muhammad Khan and others PLD 1966 (W.P) Lahore 780.
22. Learned counsel also referred to Page 1030 of reported judgment of Muhammad Zahid's case.
He placed on record a copy of the letter dated November 24, 2009 issued by Member Telecom, Ministry of Information and Technology wherein it is-stated that since privatization of PTCL with effect from March 12th 2006 it has no administrative linkages with Ministry of IT and Telecommunication. After PTCL's privatization, management and administrative functions of PTC stand transferred to Etisalat.
23. Mr. Sakhiullah, another counsel for PTCL in certain matters and Mr. Ashiq Raza, learned D.A.-G. adopted arguments of M/s Haider Waheed and Khurram Rasheed.
24. While exercising right of reply, Mr. Shujauddin and Mr. Nishat Warsi, made the following points:--
(1) Chairman of PTCL is Secretary Ministry of Information and Technology and 4 of the 9 Directors are nominated by the Government.
(2) PTCL has not yet been privatized because 62% shares are still with the Federal Government.
(3) Act of privatization of PTCL is a fraud played with the people of Pakistan. Learned counsel referred to Annual Account of PTCL, which show that an amount in excess of 3 billion, year after year, has been paid by PTCL to Etisalat as technical services and there is no explanation as to what technical services are being provided by Etisalat. Learned counsel also referred to section 37 of the Act of 1996 to content that many of the provisions of the Companies Ordinance are not applicable to PTCL.
25. We have considered the submissions made by the learned counsel have also gone through the record as well as case law cited at the Bar.
26. Before proceeding further, it may be appropriate to refer to the legal provisions and also to the undisputed and admitted facts regarding share holding, share structure and management structure of PTCL.
27. Historically there used to be Pakistan Telegraph and Telephone Department. It was a department of the Federal Government and through this department Federal Government was providing Telegraph, Telephone and other telecommunication services across the length and breadth of the country. It was decided by the Government to set up a corporation for this purposes and then entrust such functions to the Corporation. Consequently Pakistan Telecommunication Corporation Act, 1991 was promulgated on November 25th, 1991. In the Act "departmental employees" were defined as the employees belonging to the Pakistan Telephone and Telegraph department and included employees of the said department, who may, for the time being, be serving in other organizations, but did not include employees of any other organization serving in the Telephone and Telegraph Department. Under section 3 of the Act of 1991 it was legislated that a Corporation shall be set up which shall be a body corporate having perpetual succession and a common seal. Section 6 defined purposes and functions of the Corporation, which includes maintenance and operation of telecommunication services. Section 8 empowered the Corporation to employ such officers and servants and appoint such experts or consultants, as it may consider necessary for the purpose of performing its functions on such terms and conditions as it may deem fit. Thereafter section 9 made provisions in respect of departmental employees (i.e. the employees of Telegraph and Telephone Department). It reads as under:- "9. Transfer of departmental employees to the Corporation.---(1) Notwithstanding anything contained in any law, contract or agreement, or in the conditions of service, all departmental employees shall, on the establishment of the Corporation, stand transferred to, and become employees of the corporation, on the same terms and conditions to which they were entitled immediately before such transfer, provided that the Corporation shall be competent to take disciplinary action against any such employee.
(2) The terms and conditions of service of any such person as is referred to in subsection (1) shall not be varied by the Corporation to his disadvantage.
(3) Notwithstanding anything contained in any law for the time being in force, no person who stands transferred to the Corporation by virtue of subsection (1) shall be entitled to any compensation because of such transfer."
Section 20 empowered the Board of the Corporation, with the approval of Federal Government to frame such regulations as it may consider necessary or expedient.
28. Act of 1991 was repealed by the Pakistan Telecommunication (Reorganization) Act. 1996 which was enacted on October 13, 1996. Section 59 of the Act of 1996 repealed the Act of 1991. Under section 3 Pakistan Telecommunication Authority was established and its functions included regulation of establishment, operation and maintenance of Telecommunication Services. It has authority to grant licences and to monitor and enforce the licences. Thus, PT Authority was established as the Regularity Authority for telecommunication sector. Under section 34 it was provided that Pakistan Telecommunication Company Ltd., shall be incorporated as a Company under the provisions of the Companies Ordinance, 1984. Thereafter section 35 provided the Federal Government may direct that any property, rights and liabilities to which the Pakistan Telecommunication Corporation was entitled, shall on such terms and conditions as the Federal Government may determine vest in the Company or in other organizations named therein. Section 36 related to terms and conditions of service of employees and this section we have already reproduced above. After Pakistan Telecommunication Corporation Ltd. (PTCL) was incorporated in terms of the provisions contained in section 34 of the Act of 1996, the share holding structure of the Company eventually evolved as under:-- Total paid-up share capital 51,000,000 billion Fully subscribed paid and issued shares51,00,000,000 billion of which "A" class shares 3,774,000,000 "B" class shares 1,326,000,000 Share in "A" and "B" class are exactly equal to each other in respect of their rights to dividend, in respect of their rights to vote and in every other aspect except for the purpose of election of Directors (and only for this purpose) a "B" class share carries 4 votes each, whereas an 'A' class share carries one vote.
29. For the purpose of privatization all the "B" class shares which constituted 26% of outstanding shares in PTCL were sold by the Federal Government to Elisalat. Therefore, for the purpose of election of Directors Etisalat acquired 58.43% of votes. It may not be out of place to mention here that Federal Government still retains with it 62% shares and 12% shares are owned by different other private persons and entities. Following chart may clarify the position and respective voting strengths of the shares in this regard.
For election of DirectorFor all other purposes Federal Government34.63% 62% Etisalat 58.43% 26% Scattered individuals6.7% 12%
30. The last aspect that may be noticed is that at present Board of Directors of PTCL comprises of 9 persons, 5 of those 9 persons are nominated by Etisalat, whereas other 4 persons are nominated by the Federal Government. Secretary Ministry of Information & Technology, Government of Pakistan the Chairman of the Board of Directors; however, Chief Executive Officer who is also a Director is nominee of Etisalat.
31. Having clarified the share holding structure of PTCL, first question i.e. whether PTCL is a person within contemplation of Article 199(5) of the Constitution of Islamic Republic of Pakistan, can now be addressed. Article 199(5) provides as under: "(5) In this Article, unless the context otherwise requires; `person' includes any body Politic or Corporate, any Authority of or under the control of the Federal Government or of a Provincial Government and any Court or Tribunal, other than the Supreme Court, as High Court or a Court or Tribunal established under a Law relating to the Armed Forces of Pakistan: and
32. Mr. Haider Waheed, very heavily relied upon Salahuddin's case (Supra), wherein it was held as under:-- "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 other 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 functions by appointing the heads and other senior officers of these corporations, by regulating their composition and procedures by appropriate statutes, and by finding funds for financing their activities.
Examples of such statutory corporations are the National Bank of Pakistan, the West Pakistan Water and Power Development Authority, the National Shipping Corporation, the Agricultural Development Bank of Pakistan, and the large number of Universities functioning under their respective statutes. On account of their common attributes, as mentioned in the proceeding paragraph, they have all been regarded as persons performing functions in connection with the affairs of the Federation or a Province."
33. The next case relied upon by Mr. Haider Waheed was Maqsood Ahmed Toor's case (Supra).
Facts of that case were that petitioners were employed in Pakistan Post Office Department. By virtue of Postal Services Corporation Ordinance, 1992 the department was converted into a Corporation and all employees except officers of postal group were transferred to and became employees of the Corporation. Subsequently notification dated 6-8-1996 was issued by the President of Pakistan by which notification the Corporation was dissolved and employees of the Corporation other than those appointed on contract or daily wages were reverted to the Pakistan Post Office Department. In the meanwhile Federal Government Employees Housing Foundation announced a scheme for allotment of residential plots. Petitioners applied for allotment of plots under the scheme floated by the Corporation. Foundation in its meeting decided that since the petitioners were not civil servants on the cut off eligibility date they were not entitled to allotment.
(Petitioners were civil servants before creation of Corporation and after dissolution of the Corporation but not during the period of life of the Corporation). Aggrieved by this decision writ petition was filed. It was argued that since Federal Government Employees Housing Foundation was a Company incorporated under the Companies Ordinance, it was not a person within contemplation of Article 199(5) of the Constitution. The Supreme Court up-held that the Foundation by virtue of its registration under the Companies Ordinance, 1984 did not enjoy status of statutory corporation established and controlled by the Federation, nor was it performing any of sovereign functions of the State so as to be declared as a body corporate performing functions in connection with the affairs of the Federation. A perusal of this reported case indicates that it was not at all, pleaded that the Government of Pakistan has any shares or controlling shares or majority shares in the Housing Foundation.
Therefore, this case was decided by the Supreme Court in its peculiar circumstances.
34. Next case relied upon by Mr. Haider Waheed was Anoosha Shaigan v. S Lahore University of Management Sciences (PLD 2007 Lahore 568), which is a case decided by a Single Bench of Lahore High Court. It was observed as under: "The word "control" appearing in the aforementioned definition is also quite significant and it is not restricted to the financial control of the Government over a body but the executive control as well; it does not necessarily mean the financial control over the bodies that are under the dominative control of the Federal or Provincial Government, which are amenable to the jurisdiction under Article 199 of the Constitution. Thus, the judgment of the Honourable Supreme Court reported as Aitchison College Lahore through Principal v. Muhammad Zubair and another PLD 2002 SC 326, cited by the learned counsel for the petitioner, is distinguishable from the captioned case, as the dominating control in Aitchison College is (1) taken over under MLO (2) Governor of the Punjab is the President of the Board (3) there are Provincial Secretaries on the Board and Corp. Commanders
(4) it is the Special Institution under the Provincial Rules of Business and (5) on account of the above, it is permissible to transfer the Government servants to the Aitchison College."
And thereafter it concluded as under:-- "7. On account of the above case-law, I am of the considered view that the absolute control over the management of a body/an Organization by the Federation and others is a condition most important for declaring it to be a "person" performing its functions in connection with the affairs of the Federation and others, the Federation and others should have a complete domination to do and undo whatever it decides in running the affairs of such a body and should have the exclusive, complete and final authority to take the vital policy decisions. Such control must be absolute, unfettered, unbridled and exclusive, besides, the State must also have the financial control of the Organization; the power of hiring and firing the employees thereof appointing and removing the management body meant for running the routine affairs of the Organization. But from the Presidential Order of 1985, though the President is the Chancellor of the LUMS, but this is notional and more with the status of a Patron-in-Chief; in practical terms except for the nomination of the persons on the Board or the Council, he does not have the administrative or policy-making control, which is the authority of the Board of Trustees and the Council of LUMS, which manages its affairs. It has been rightly pointed out by the respondents' counsel that the funds to LUMS are not being provided by the- Government on regular basis, those are generated by the LUMS itself either from the fees or the donations and may be occasionally in the nature of donation, the government also contributes, but this contribution cannot be held to be within the concept of "financial control" of the Organization. The judgments cited by the learned counsel for the petitioner, in the light of the catena of judgments from the respondents' side which have been discussed above, not only are distinguishable, rather do not apply to the facts and circumstances of the present case."
35. Reference was made to Muhammad Zahid's case (supra) by counsel appearing for the employees and to the following observations made therein:-- "Similarly, the Pakistan Telecommunication Authority invested with an effective rule over the functions of the PRCL and exercisable by such Authority as envisaged by sections 4 and 5 of the Pakistan Telecommunication (Re-Organization) Act, 1996 headed by its Chairman with its constituting directors and all to be appointed by the Federal Government under section 3 of the Act relating to the Telecommunication undisputedly is the subject which pertain to one of the important affairs of the Federation dischargeable now through the PTCL hence; such entity involved in the same exercise of the sovereign powers, essentially falls within the contents of `person' as defined in clause (5) of the Article 199 of the Constitution, therefore, for the above reasons the grievance of the private respondents was amenable to the writ jurisdiction of the High Court."
36. Case of Syed Arshad Ali and 55 others v. Pakistan Telecommunication Company Ltd., through President and 8 others PLD 2007 Kar. 214, was relied upon by the counsel for the employees.
Reported case is an order by which the petition was admitted for regular hearing and the order clearly indicates that it was a prima facie view that the purchaser was exercising managerial control on behalf of the owner which is the Federal Government. However, Syed Arshad Ali's case reported at 2008 SCMR 314 indicates that writ petition was dismissed and order of dismissal was up-held by the Supreme Court. The two judgments do not disclose as to on what basis and for what reasons the petition was dismissed.
37. Mr. Haider Waheed also relied upon case of Province of N.-W.F.P., through Secretary, Local Government and Rural Development Peshawar v. Pakistan Telecommunication "Corporation through Chairman and others PLD 2005 SC 670. The germane question in this case was whether the Corporation created under the Act of 1991 was liable to pay octroi tax on goods and articles or not. It was contention of the Provincial Government that the Corporation under the Act of 1991 was engaged in commercial activity and therefore was not entitled to exemption from payment of octroi tax. The High Court held that since Corporation was in fact performing functions of the State, its assets were acquired entirely from the Federal Government, its employees being declared as public servants coupled with total control and administration of the Federal Government it was entitled to exemptions enunciated under Article 165 of the Constitution, until Act of 1991 was repealed by the Act of 1996. While concluding the Honorable Supreme Court observed as under:-- "18. It was agitated that Federal Government being holder of lion share holding in the Company virtually the properties of respondent. Corporation becomes the properties of the Federal Government but we are not persuaded to agree with the point formulated at the Bar. By virtue of its composition as a limited juristic company with private participation in the shareholding and after listing on the stock exchanges of the country, for all intents and purposes it remains a limited company with public participation and not the sole ownership of the Federal Government as misunderstood. The assets and liabilities of the Company now permanently vest in the Company and not in the Federal Government, as erroneously canvassed at the Bar. We are clear in our mind that the case of PTC decided hereinabove in relation to the levy of octroi charges stands entirely on different footing and is not at par with the liability of the Company for payment of property tax on its urban immovable properties. In our considered view, neither the provisions of Article 165 of the Constitution nor the provision of section 4(a) of Act 1958 advance the case of the company. A limited company with private participation can hardly be construed to be a Government Department and even after unveiling the veil of incorporation, it remains a juristic person absolutely different from a natural person or a Government Department. Case-law cited earlier heavily leans in favour of liability for payment of tax rather than exemption from payment of tax and there can be no second opinion but to hold that on the basis of available record and data, after incorporation of the respondent-Corporation as a public limited company it is no longer immune and exempt from the payment of property tax. Learned Members of the Division Bench have recorded elaborate reasons rightly differentiating the case from Writ Petition No. 657 of 1994 decided earlier by another Division Bench of the High Court and rightly come to the conclusion that the PTCL is not the successor of the former PTC. In all material particulars, its properties and income cannot be construed to be the property and income of Federal Government by any stretch of argument."
38. A survey of the above case-law indicates that seminal case on subject has been Salahuadin's case. In Salahuddin's case as quoted above the Supreme Court appears to have, on the moot point, recorded the following conclusions:--
(1) Phrase "performing functions in connection with the affairs of the Federation or a Province" referred to, involve in one form or another, an element of exercise of public power.
(2) The functions besides including classical, inseparable sovereign functions of the State .also include functions relating to economic development and public utility services.
(3) If a Corporation is created by statute or a company is incorporated under the relevant law such a corporation in any case and such a company shall be a person within contemplation of Article 199(5) of the Constitution, if the Government retains effective control over its functions.
(4) Manifestation of effective control would include
(a) Appointing head and other senior officers of the Corporation;
(1) Regulating their composition;
(c) Finding funds for financing their activities.
39. This indicates, since PTCL is company incorporated under the Companies Ordinance, 1984, the critical question would be whether the Federal Government retains control over the corporation or not. Word `control' is defined in Black's Law Dictionary as under: "Control, To exercise restraining or directing influence over. To 26 regulate; restrain; dominate; curb; to hold from action; overpower; counteract; govern.
Control, Power or authority to manage, direct, superintend, restrict, regulate, govern, administer, or oversee. The ability to exercise a restraining or directing influence over something.
Controlled company. A company, the majority of whose voting stock is held by, an individual or corporation. For example, a subsidiary of a parent company. The level of control depends on the amount of stock owned."
(4) Concise Oxford English Dictionary defines the word control- as under: "control, 1 the power to influence people's behavior or the course of events, the restriction of an activity, tendency, or phenomenon. 2 a device by which a machine is regulated; the volume control. 3 a person of thing used as a standard of comparison for checking the results of a survey or experiment. 4 a member of an intelligence organization who personally directs the activities of a spy. 5 bridge a high card that will prevent the opponents from establishing a particular suit."
40. Ballentine's Law Dictionary defines the word `control' as under:-- "control, Verb: To check, restrain, govern, have under command and authority. Wolffe v. Loeb, 98 Ala 426, 432. Noun: a position of authority in direction and management.
Controlling interest. A majority of the shares of stock of a Corporation. 18 Am J2d Corp and 496.
41. The above definitions indicate that `control' is not a monolithic concept or a dogmatic formulation. Word 'control' is a many faceted concept and therefore cannot be reduced to a simplistic, precise formulation. Between absolute control and zero control, there is a continuum. As one goes along the change occurs but not in quantum jumps but in gradual yet perceptible variations. Reality never lies at the extreme but somewhere in the middle. This cliche is as true of all social and economic phenomena as of control. Therefore, while interpreting word 'control' in the context of Article 199 the Court has to locate it and then decide as to which side does the balance tip. As far as meaning of this word-used in Article 199(5) of the Constitution is concerned the Court has to see the totality of circumstances and all aspects of relationships between the Federation or a Province and the entity or body corporate that it is claimed falls within, or does not fall within, the scope of Article 199(5) of the Constitution.
42. Control includes not only "directing influence" but also "restraining influence". If majority of voting stock of a company is held by an individual or corporation the level of control would depend upon the amount of stock owned. In the present case, 62% of the equity in PTCL is owned by the Federal Government. Except for the purpose of election of Directors, this 62% means 62%. It is therefore, majority as well as a controlling interest. Can the Federal Government exercise "a restraining influence" over the affairs of the company giving the fact that for the purpose of election of Directors, the Federal Government does not have majority? It is undeniable position that every year accounts have to be approved in general meeting and the government carries 62% votes for this purpose. Auditors have to be appointed by general meeting and again government carries 62% votes, for this purpose. Dividend can be declared only with the approval of the general meeting and against the government has 62% of votes. One can go on and on and narrate many other instances where it is statutorily required (or required by Articles of Association) that final decision be made by the general meeting and for that the Government carries 62% of the votes.
There is no doubt that for the purpose of election of Directors government does not carry majority votes but election of Directors is only one facet of control over an organization. Mere fact that one particular facet of control over the affairs of the organization is lacking in a particular case does not mean that every other aspect of the control must be ignored. We are unable to agree with the conclusion recorded in LUMS's case (Supra) because we are unable to read "absolute and total" or even "exclusive" with the word "control" used in Article 199(5). Besides admitted LUMS is a privately, entirely so, founded institution. As far as financial control is concerned there appears to be no fetters placed on 62% shares of PTCL in that particular regard. In Kot Addu Power Company Ltd. through Chief Executive and 2 others v. Muhammad Bashir, 2001 SCMR 1890, 26% shares of the Company had been sold and management handed over to private party, but the Supreme Court held it to be an organization falling within the purview of (late) section 2-A of the Service Tribunals Act.
43. Contention of Mr. Haider Waheed that Muhammad Zahid's case was a case which arose out of Writ Petition filed prior to 2002 and decided by the High Court in 2004 and Civil Appeal was filed in the Supreme Court in 2005 and therefore, since PTCL was created by the Act of 1996 and 'shares were sold to the Etisalat in 2006 status of the company was not really a question in issue before the High Court and the Supreme Court in that case carries weight. However, what cannot be lost sight of is that even today 62% shares of PTCL are owned by the Federal Government and this Court has to decide keeping in view of this particular aspect of shareholding of the company but without losing sight of specific feature of "B" class shares which shares though constitute only 26% of the stock but since each "B" class share carries 4 votes compared with "A" class share which carries only 1 vote for the purpose of election of Directors and for this purpose only Etisalat carries 58% of the votes with it). As we have held Directors constitute only one facet of control and not totality of control. In substantial major control still remains with 62% share-holder.
44. Contention of Mr. M. A. Khan that it was not clear whether PTCL has been sold with assets and liabilities or only assets have been sold appears to be misconceived. A company incorporated under the Companies Ordinance, 1984, is a separate legal and juristic person. Strictly speaking in law nobody owns a company. Capital of the company is divided into shares and though a person may own 100% shares, but, at least in law, he does not own the company; he owns 100% shares in the company. That is why in Article 63 of the Constitution besides the words "owned by the Government" words "in which the Government has, controlling share" have been used. What Federal Government in case of PTCL did was first it sold 12% shares through public subscription and then it sold 26% fall of "B" class shares) to the Etisalat. When a share in a company is bought or sold there is no change in the assets or liabilities of a company. (This is so even under the accounting principles). They remain of the company irrespective of such a sale: assets continued to be assets of the company; contracts continued to be contracts of the company; liabilities continue to be liabilities and employees continue to be employees of the company. Sale of shares by one person to another person does not legally effect either the assets or the liabilities or the contracts or, even the employees.
45. Mr. Nisahat Warsi and Mr. Shahabuddin very vociferously and vehemently argued that division of shares into "A" and "B" class was mala fide. They also argued that sale of shares to Etisalat was a mala fide exercise. Some of the learned counsel also argued that the Federal Government has not yet been paid consideration for sale of shares. Mr. Nishat Warsi also argued that Etisalat has a service contract with PTCL under which contract more than Rupees 3 billion are being paid by PTCL annually to Etisalat as technical fee and there is nothing available with any one to demonstrate as to what technical services are being provided by Etisalat to PTCL. All these questions may be gone into in appropriate proceedings where either relationship between Etisalat and PTCL is brought in focus or where the very act of privatization is challenged. In the present matter, no such challenge has been thrown and therefore without deciding this question we may observe that we are limiting this judgment to the two questions formulated at the beginning of this judgment.
46. As we have held above, Federal Government holds 62% shares in PTCL and as long as the Federal Government owns majority shares in PTCL either in its own name, or, whether wholly or partially, in the name of any other organization or entity controlled by the government, PTCL is and shall continue to be amenable to the jurisdiction of this Court under Article 199 of the Constitution.
47. This brings us to the second question. The points to be noticed in this regard are:--
(1) Under section 35(2) with the creation of the Company the Federal Government has been given a statutory right to transfer employees of the Corporation established under the Act of 1991 to the company established under the Act of 1996. Under section 36(1) such employees are referred to as transferred employees and under the proviso thereto the Federal Government guaranteed to them rights, including pensionary benefits. The fact that Federal Government guaranteed them certain rights and benefits can have only effect of guaranteeing such rights and could not have effect of converting those rights and benefits as those being regulated by statutory rules.
(2) Under the provisions contained in the General Clauses Act, statutory rules can be made only in terms of power conferred by a statute. "Under the Act of 1991 there was a power available under section 20 for making regulations by the Board with the approval of the Federal Government. The regulations thus made were statutory regulations. However, when the Act of 1996 was promulgated firstly there is no provision for making any rules in respect of terms and conditions of employment of employees of PTCL. Secondly while under section 59(1), Act of 1991 was repealed it was only orders made, actions taken, vesting orders or notification issued and others which were saved and not any legislative instrument. Mr. Khurram Rasheed is correct in relying upon Ahmed Khan Niazi's case PLD 2009 Lahore 657, Muhammad Din's case PLD 1966 (W.P.) Lahore 780, where it was observed as under:-- "Doubtless, in a case where a rule or bye-law is made under an Act or a section of the Act, the repeal of that Act or section abrogates the rule or bye-law unless it is preserved by the repealing Act. This was the view taken in Waston v. Winch (1). That rule, however, does not apply here."
48. In Abdul Ghafoor Baluch and 11 others v. Pakistan Telecommunication Company Limited and 11 others 2009 Law Notes 30, a question was formulated by the Federal Service Tribunal in the following words:- "13. There is no dispute between the parties about the factual aspect of the appeals and Misc.
Petitions. There is also no cavil to the proposition that originally the petitioners/appellants, being Government employees, were civil servants, but the question before us is, whether after their transfer to the Pakistan Telecommunication Company and Respondent PTCL they continued to enjoy the status of "Civil Servants".
49. Thereafter it was held that PTCL does not have statutory rules. Matter was taken in appeal to the Supreme Court in Ejaz Ali Bughti v. PTCL and others, 2008 PSC 1224 and it was held by the Supreme Court that PTCL does not have statutory rules. In Muhammad Zahid's case no doubt in para-15 of the judgment the Honourable Supreme Court observed that regulations framed by the Corporation under the Act of 1991 were statutory regulations but since Act of 1991 has bean repealed and there is nothing in section 59 of the Act of 1996 protecting those regulations, obviously there are no statutory rules in the field as from repeal of Act of 1991 by Act of 1996. This view gets support from provisions of section 36(2) of the Act of 1996 by which the Federal Government guaranteed existing terms and conditions of service including pensionary benefits of transferred employees. If the service and employment of the transferred employees and their employment benefits were continued to be governed by the provisions of statutory rules/regulations made in the Act of 1991 then no employer could change them without prior consent of the government, where was need to guarantee the terms and conditions by the government. This shows that Legislature was fully conscious of the fact while enacting the Act of 1996 that here forward the employment would not be governed by statutory rules and therefore, the Legislature thought it fit to burden the government with guaranteeing the terms and conditions as well as pensionary benefits.
50. Here I may make a note of submission made of Mr. Moula Bux Khoso for which he relied on Abdul Rahim's case 1992 SCMR 1213. It was held in this case that transfer under the provisions of the Pakistan Broadcasting Corporation Act, did not imply that such transfer amounted to change of status of civil servant as he remained civil servant nevertheless. The argument is misconceived because there are clear differences in the phraseologies and words chosen by the Legislature in two statutes. The provisions contained in the Pakistan Broadcasting Corporation Act, 1973 and in the law relating to PTCL are different. Section 12 of the Pakistan Broadcasting Corporation Act, 1973 provided as under:- "12. Transfer of Radio Pakistan Servants to the Corporation.---(1) Notwithstanding anything to the contrary in any contract or agreement or in the conditions of service the Federal Government, may, subject. to the provisions of subsections (2) and (3) transfer persons in the service of Pakistan and serving in connection with the affairs of the department of the Government of Pakistan headed by the Director-General, Radio Pakistan, hereinafter referred to as Radio Pakistan immediately before the commencement of this Act, including persons on deputation to other organization in Pakistan or abroad to the Corporation on the same terms and conditions to which they were entitled immediately before such commencement."
51. On the other hand, it may be contrasted with section 9(1) of the Act of 1991 (produced in Para 27 above). Whereas in section 9 of the Act of 1991 it is stated that such transferred persons shall "become employees of the Corporation", no such stipulation is provided in the Pakistan Broadcasting Corporation Act, 1973. Observations in Muhammad Shahid's case (supra) themselves state "in the absence of any provision to the contrary". This is a legislative transfer and not an administrative transfer. Whether a person is civil servant or not in the ultimate analysis is determine by legislation and in the present case, Legislature itself in section 9(1) declared that transferred employees shall become employees of the corporation. One cannot be a subservient to two masters at the same time. Therefore the moment all these persons became employees of the Corporation they ceased to be civil servants. We therefore hold that employment of employees of PTCL is not protected or governed by any statutory rules.
52. As far as, petitions relating to employees of KESC are concerned, it has been authoritatively decided by the Honourable Supreme Court in S. M. Gharib Nawaz Daccawala v. KESC and others Civil Petition No. 106-K of 2007, decided by the Honorable Supreme Court on 23-10-2008 that KESC, after its privatization is not a person within contemplation of Article 199(5) of the Constitution of the Islamic Republic of Pakistan. Similarly as far as, petitions relating to employees of United Bank Ltd., are concerned, the case law relied upon by Mr. Mehmood Abdul Ghani, is clear on the point: once a bank is privatized its employees ceased to be entitled to maintain Constitution Petition. Mr. Mushtaq Ahmed, relied upon Manzoor Ali and 39 others v. United Bank, Limited through President 2005 SCMR 1785. The question in that case was totally different. The question was whether an employee of UBL who before privatization of the bank had filed appeal under section 2-A of the Service Tribunals Act before Federal Service Tribunal was entitled to continue with his, appeal notwithstanding privatization of the bank or not. The Supreme Court by majority judgment held that such appeal would continue. It may be pointed out that thereafter in Sher Khan's case 1996 SCMR 1, the Supreme Court granted leave to reconsider this particular aspect. In any case, the question in Manzoor Ali's case was limited to continuation of appeal before the Federal Service Tribunal, which is not a question in the present case. It is now well settled law that a Court must have jurisdiction not only at the commencement of proceedings but all the way till termination of proceedings.
53. Mr. Malik Muhammad Aqil Awan, passionately argued that remedy should be left open for the trampled persons. We are conscious of the fact that over the last 14 years or so employees of State owned organizations have been repeatedly dealt a cruel hand for no fault of any one but the change in law and judicial interpretations which per force had to be in accordance with the Constitution and the changed. I would go to the extent of saying that employees were slapped with wave after wave, waves gigantic and all possessing in the sense in which, probably, Alvin Toner in his book "Third Wave" uses the word wave:
(i) First wave was when section 2-A came and almost 10,000 persons were thrown out of Labour Courts, Civil Courts, High Courts and other forums and directed to' go to the Federal Service Tribunal.
(ii) Second wave hit them when the Service Tribunal held that section 2-A was prospective and threw out thousands once again? Later on in Syed Aftab Ahmed's case 1999 SCMR 197, the Supreme Court held that section 2-A being procedural was retrospective. However, only less than hundred of those who had been thrown out by Federal Service Tribunal had gone to the Supreme Court and other faced a plethora of legal obstacles which need not be referred to.
(iii) The third wave hit them when in Muhammad Mubeen-us-Slam's case PLD 2006 SC 602, the Supreme Court held section 2-A to be partially ultra vires. Federal Service Tribunal passed an administrative-order throwing out thousands of appeals.
(iv) Fourth wave hit them when in Muhammad Idrees's case PLD 2007 SC 681, the Supreme Court held that cases where there are statutory rules Service Tribunal still had the jurisdiction. Meanwhile in Muhammad Dawood and others v. Federation of Pakistan and others, 2007 PLC (CS) 1046, a full bench of this Court held that such employees are entitled to maintain writ petition and it also held that section 10 of the Removal from Service (Special Powers) Act, to be ultra vires. Hundreds of writ petition came to this Court.
(v) Yet another wave hit them when .in Raja Riaz's case PLD 2008 SC 80, the Supreme Court held that by way of administrative order Service Tribunal could not have abated appeals. Consequently, this High Court once again threw out hundreds of them once again asking them to go to Service Tribunal to get a judicial order. Meanwhile hundreds who had gone to the Labour Courts were again thrown out for lack of judicial order.
(vi) After obtaining judicial order many of them came back to this Court. However, in view of the judgment of the Supreme Court in Pakistan International Airlines Corporation v. Tanweer-ur- Rehman, Civil Appeal No.172-K of 2009 decided by the Supreme Court on 12-3-2010 they have been shown the door once again.
(vii) In spite of clear orders of this Court in Dawood's case 2007 PLC (CS) 1046, that section 10 of RSO was ultra vires, the Federal Service Tribunal continued to entertain appeals under RSO. There are examples of some of the 'waves' Hapless employees state of mind and state of perplexity can be aptly described in words of Allama Iqbal:--
54. We have all the sympathies with Mr. Aqil Awan and we do feel that employee's of the State owned organizations have been dealt with a bad hand and repeatedly so. However this Court and the Supreme Court is always constrained by the Constitution and the law and therefore, has to decide the matter before it in accordance with the law and the judicial dicta as laid down by the Honorable Supreme Court from time to time.
55. Mr. M. A. K. Azmati, argued that this Court should not be "influenced" by the judgment in Tanweer-ur-Rehman's case. We were indeed surprised by this argument because a judgment passed by the Supreme Court and the rule laid down by it is binding on all judicial and executive authorities of the country and it was indeed surprising to hear that the Court should ignore judgments of the Supreme Court. The argument was as absurd as absurd can be.
56. For the above reasons and following the judgment of Honourable Supreme Court of Pakistan in the case of Pakistan International Airlines Corporation v. Tanweer-ur-Rehman, Civil Appeal Nos.
172-K of 2009 passed by the Honourable Supreme Court on 12-3-2010 while we hold that PTCL is a person amenable to the jurisdiction of this Court under Article 199(5) of the Constitution, however since PTCL does not have statutory rules, writ petitions of employees of PTCL are liable to be dismissed" As far as UBL and KESC are concerned, they being privatized organizations are neither persons amenable under Article 199(5) of the Constitution nor do they have statutory rules.
Consequently all these writ petitions are dismissed. The petitioners are allowed to avail such remedies as may be available to them under the law.
Listed applications arc disposed of.