' MUHAMMAD KHALID MEHMOOD KHAN, J.--- Through this constitutional petition, petitioner has assailed order dated 27-9-2012 passed by respondent No,2 whereby the petitioner has been transferred to DG (EMC)., NTDC/PEPCO, WAPDA House, Lahore.
2. Learned counsel for petitioner submits that petitioner is the employee of respondent No,3 and respondent No,2 has no authority to interfere in the business of respondent No,3. The Chief Executive of respondent No,3 is the person who can pass the impugned order. Learned counsel further submits that petitioner has challenged the act of a person who is performing in the affairs of Federation but is alien to the affairs of petitioners Employer Company; hence the constitutional petition is maintainable. The petitioner's employer is performing duties in the affairs of Federation and the constitutional petition is maintainable. Learned counsel submits that where the impugned order is mala fide, ultra vires, the High Court 'under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 enjoys the powers of judicial review. Learned counsel has relied on Suo Mow case No,I8 of 2010 (PLD 2011 SC 927), Federation of Pakistan through Secretary Defence and others v. Abdul Basit (2012 SCMR 1229), Rana Aamer Raztt Ashfaq and another v. Dr. Minhaj Ahmad Khan and anathor (2012 SCMR 6), Tahir Abbas v. FESCO, Jhang and others (2011 PLC (C.S.) 354), Syed Mehboob Ali and 21 others v. Province of Sindh through Chief Secretary to Government of Sindh and 3 others (2011 PLC (C.S.). 37), Ghazanfar Ali v. Zarai Taraqiati Bank Limited, Islamabad through President and 4 others (2011 PLC (C.S.) 648), Syed Tahir Abbas Shah v. OGDCL through M.D.
Head Office, Islamabad and another (2012 PLC (C.S.) 885), Yahya Khan v. Director Commercial Accounts PTCL and another (2012 PLC (C.S.) 1011) and unreported judgment passed by the Hon'ble Supreme Court of Pakistan on 18-10-2012 in C.P. No,23 of 2012.
3. Learned counsel for respondent/PEPCO opposed the petition on two grounds; that the petition is not maintainable as the Service Rules of respondent No,3 are non-statutory and if for the sake of argument it is admitted that the petitioner was originally employee of WAPDA, even then petitioner will be deemed to be a civil servant and bar of Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 is applicable in the petitioner's case. Learned counsel for respondents thus prays for dismissal of the present petition.
4. Hafiz Tariq Naseem, Advocate learned counsel for respondent No,5 has raised the objection of very maintainability of constitutional petition on two counts;
(i) The service of petitioner is not governed by statutory rules and as such constitutional petition is not maintainable.
(ii) If alternatively it is assumed that petitioner was originally the WAPDA employee and his services are governed under the WAPDA rules; hence the petitioner will be deemed to be the civil servant and bar of Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 is applicable; against the maintainability of constitutional petition.
' Learned counsel for respondent No,5 has relied on Khalid Mahmood Wattoo v. Government of Punjab and others (1998 SCMR 2280), Shoua Junejo and others v. PIA and others (2012 SCMR 1681), Syed Saghir Ahmad Nagyi v. Province of Sindh through Chief Secretary S&GAD, Karachi and another (1996 PLC (C.S.) 803), Muhammad Latif Khan v. Sarwar Hussain 1995 PLC (C.S.) 182 and unreported judgment dated 7-9-2011 passed by learned Single Judge of this Court in W. P . No, 19194/2011 titled "Manzoor Hussain Sial v. PEPCO and others.
5. Heard, record perused.
6. It is an admitted fact that petitioner is the employee of Pakistan Electric Power Company (Private) Limited (hereinafter referred to as "PEPCO"), a company incorporated under the Companies Ordinance, 1984, and 100% shareholding of the company is owned by the Federal Government, but the management and control of the company is with the Board of Director, constituted under the Articles of Company. The appointing authority of the petitioner is the PEPCO, the petitioner is not challenging any act of his employer but the petitioner's attack is against an order which has been passed by a third party and the issuer of impugned order is the Federal Government.
7. For appreciating the argument of learned counsel for petitioner it IB has to be seen whether the issuer of impugned order has any role in the management of the employer of petitioner. The petitioner's employer is a private limited company incorporated under the Companies Ordinance, 1984, established for the objects detailed in its memorandum, the memorandum of company deals with the outdoor management of company and articles of association of company deals with the internal management of the company.
8. Under Articles of Association of respondent No,3, the management and control of the respondent company is with the Board of Directors which is read as under:--- "Management: ' The whole business and affairs of the Company shall, subject to the control and supervision of the Board of Directors, be managed and controlled by the Chief/Executive.
' Subject to the limit fixed by the Directors, the Chief Executive may from time to time raise or borrow any sums of money for and on behalf of the Company from other companies, banks or financial institutions on such terms as may be approved by the Board of Directors.
' Without prejudice to the powers conferred, by these Articles, the Board of Directors shall have and exercise on behalf of the Company, the following powers:---
(a) To take on lease, purchase, erect or otherwise acquire far the Company any assets, share, lands, buildings, properties, rights or privileges ,which the Company is authorized to acquire at such price and generally on such terms and conditions as they think fit.
(b) To let, mortgage, sell, exchange, assign or otherwise dispose of absolutely or conditionally all or any part of the assets, shares, raw materials, properties, privileges and undertakings of the Company upon such terms and conditions as they may think fit.
(c) To appoint any person or persons to be an attorney or attorneys of the Company for such purposes and with such powers, authorities and discretion and for such period and subject to such conditions as they may, from time to time, prescribe.
(d) To enter into, carry out, rescind or vary all financial arrangements with any bank, person, company, firm or corporation or in connection with such arrangements to deposit, pledge . or hypothecate properties of the Company or the documents representing or relating to the same.
(e) To make and give receipts, releases and discharges for all moneys payable to the Company and for the claims and demands of the Company.
(f) To compound or allow time to the payment or satisfaction of any debt due to or by the Company and any claim or demand by or against the Company, and to refer claims or demands by or against the Company to arbitration and observe and perform the arbitral award.
(g) To institute, prosecute, compromise, withdraw or abandon any legal proceedings by or against the Company or its officers or otherwise concerning the affairs of the Company.
(h) To raise and borrow money from time to time for the purposes of C the Company, on the mortgage of its property or any part thereof under/or on any bond or debenture and repayable in such manner and generally upon such terms as they think fit.
(i) To open, operate and maintain a bank account(s)." Under Article 22, the Chief Executive is defined as under:---"Chief Executive:
22. The first Chief Executive of the Company will be appointed by the Board of Directors within fifteen (15) days from the date of incorporation of the Company and shall hold office until the first Annual General Meeting."
' This will show that Ministry of Water and Power, Government of Pakistan is not managing the business of company. It is settled legal position between the parties that service rules of respondent No,3 are not statutory; nor the petitioner is civil servant, the only question is whether the constitutional petition in the circumstances of the present case is maintainable or not ?
9. Learned counsel for petitioner has placed -reliance on Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others (PLD 2010 SC 676) and submits that respondent company is performing and acting in the affairs of State and fulfil the test settled by the Hon'ble Supreme Court. No doubt, the respondent company is acting in the affairs of State, but the impugned order has not been passed by the company through authorized person, so in my humble opinion the dispute in the petition is "Whether the Federal Government ("Ministry of Water and Power) is the competent authority to pass the impugned order qua the respondent No,3 's affairs" the perusal of impugned order shows that Section Officer (Admn-III) Ministry of Water and Power with the approval of Minister Water and Power has passed the order regarding the employee of PEPCO. The impugned order shows that the Ministry of Water and Power is assuming itself the controlling authority of respondent No,3 as the 100% shareholding is with the Federal Government.
10. No doubt the 100% shareholding of respondent No,3 is with the Federal Government but under the Article of Association of respondent No,3, the management and control of the company is with the Board of Directors of respondent No,3. The Board of Directors is enjoying the exclusive powers and authority to run and manage the affairs of company, the shareholders of company are no doubt the owners of equity of company but they have no authority to control and manage the affairs of company, the Minister of Water and Power is not the Chairman of Board nor is the director of company; hence he is alien to the affairs of company, hence the Federal Government or Ministry of Water and Power has no authority to pass the impugned order.
11. Under Article 199(i)(ii) of Constitution of the Islamic Republic of Pakistan, 1973, the High Court enjoys the powers to declare the act of a person acting in the affairs of Federation illegal and without lawful authority.
12. In view of the above, the impugned order is declared without lawful authority having no legal effect. The petition is allowed in the above said terms.