QAISER RASHID KHAN, J.- Through the petition in hand, the petitioner (Peshawar Electric Supply Company Ltd.) has made the following prayers: a) That Wafaqi Mohtasib (Ombudsman) under the parameters contained in "the President Order" has no jurisdiction to entertain any application, petition and complaint and the cognizance taken, order and findings recorded by respondents No.1 and 2 against PESCO are in excess of jurisdiction and liable to be declared unlawful. b) That PESCO is a separate distinct entity working exclusively for the distribution of electricity in Khyber Pakhtunkhwa province in terms of Article 157 of the Constitution having independent approved tariff for the electricity consumers of Khyber Pakhtunkhwa; therefore, the cognizance taken, proceedings initiated, recommendations recorded and order rendered by Wafaqi Mohtasib on the complaints of individuals is absolutely in excess of jurisdiction, abuse of process, is coram non judice and cannot sustain, based on unlawful assumption, nullity in law and liable to be declared unlawful. c) That PESCO is a limited Company incorporated under the Companies Ordinance, 1984 does not fall within the meaning of "agency" as defined in clause (1) of Article 2 of "the President Order" in that PESCO is not a Ministry, Division, Department, Commission or office of the Federal Government or statutory body corporation or other institution established or controlled by the Federal Government. d) That the judgment and ratio laid down by the august Supreme Court in Chief Executive Officer PESCO Versus Muhammad Aftab-ur-Rehman (CP No. 1591/2011) has finally determined the status of the petition having no connection with the Federal Government nor performing any functions on its behalf, therefore, the Mohtasib has no jurisdiction to interfere into the working of PESCO.
2. As per precise but relevant facts averred in the instant petition, the Power Wing of WAPDA was made responsible for generation, transmission and distribution of electricity in Pakistan and due to the unsatisfactory performance of WAPDA, its power wing was privatized in Generation Companies (GENCOs), Transmission, National Transmission and Dispatch Company (NTDC) and Distribution Companies (DISCOs) which are being supervised by Pakistan Electric Power Company (PEPCO).
Under decentralization policy, Area Electricity Boards were constituted mainly in the provinces to cater to the needs and requirements of the public at large, consumers and employees; that it was essential to establish an autonomous regulatory agency, to introduce transparent and judicious economic regulation in the power sector of Pakistan. National Electric Power Regulatory Authority (NEPRA) was created under the NEPRA Act, 1997 to ensure fair competition and consumer, producer and seller protection. Private Power and Infrastructure Board (PPIB) established in 1994, to facilitate private investors; that the Generation Companies (GENCOS) generate electric energy for fulfilling the supply demands in Pakistan which is the sources of electric power in the country. Furthermore National Transmission and Dispatch Company (NTDC) primary object is to carry out transmission which handles high voltages of 220 KV to 500 KV for transmission purposes; that Distribution Companies (DISCOs) with 132 KV or less and have the responsibility of electric power distribution and there are nine independent distribution companies in various areas and seeks guidance from PEPCO; that Peshawar Electric Supply Company (Pvt) Limited (PESCO) has been incorporated under the Companies Ordinance, 1984 to cater to the distribution of electricity in the province of Khyber Pakhtunkhwa which has no statutory rules and gets assistance from the government, WAPDA and PEPCO rules and the employees who have opted to join petitioner after decentralization and recruitment are being looked after, supervised and managed exclusively having full fledged departments and sections which are dealing with its day to day affairs; that the petitioner is regularly filing income tax return every year in accordance with the provisions of Income Tax Ordinance, 2001 whereas it is also registered under Sales Tax Act, 1990 and leviable taxes are being paid by the petitioner exclusively in accordance with law and WAPDA or Federal Government has no concern with the gain, profit, loss and liabilities of PESCO; that petitioners employees have CBA union raising demands relating to better service facilities and the entire affairs are managed, supervised and controlled by PESCO; that the petitioner has no statutory rules and is still in the process of strengthening its working. Nevertheless, PESCO has reserved 20% quota for the children of its employees vide office order dated 8.4.2004 when making recruitment; that according to such policy, employees children can be recruited on the posts falling in BPS-1 to 9 only and qualification as well as standard for recruitment i.e. age, educational, technical and physical health under no circumstances is relaxed in respect of PESCO regular staff and employees children quota; that the petitioner also makes sure that Trade Test is held and conducted for the posts of BPS-5 to 9 categories where applicable and further that merit of the candidates who qualify the test is to be determined independently according to the priorities prescribed for a particular post; that it is also observed by the petitioner that the appointment against serial "a" and "b" of order dated 8.4.2004 being amended from time to time is made on regular basis being cases of death/ disability due to electric shock or injury causing death/ disability while performing official duty whereas recruitment against remaining against the said quota is made on contract basis as and when posts are available; that PESCO has recruitment policy to fill any new post or vacancy and has to follow the criteria required for the purpose. Nevertheless there are technical, non-technical jobs and positions which have different merits and experience; that in pursuance of the Proclamation of the fifth day of July, 1977 and in exercise of all powers in that behalf, the President and Chief Martial Law Administrator made an order for the Establishment of the office of Wafaqi Mohtasib (Ombudsman) Order, 1983; that according to clause (1) of Article 2 of "the President Order" agency has been defined to mean a Ministry, Division, Department, Commission or office of the Federal Government or statutory body corporation or other institution established or controlled by the Federal Government but does not include the Supreme Court, the Supreme Judicial Council, the Federal Shariat Court or a High Court; that the legislature by virtue of "The President Order" has categorized the power, functions and jurisdiction of Mohtasib and incorporated the same in Article 9 of the Constitution; that Article 212 of the Constitution of Islamic Republic of Pakistan places specific bar inasmuch as no other court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends; that respondents No.1 and 2 in the recent past have started entertaining various applications, complaints and petitions relating to the affairs and working of PESCO, the petitioner tried its level best to convince the learned Wafaqi Mohtasib (Ombudsman) that PESCO is an autonomous and self-regulating concern, business and institute working exclusively in Khyber Pakhtunkhwa; that notwithstanding the reservations of the petitioner, a flood gate has been opened of the complaints being entertained by learned Wafaqi Mohtasib office at principal seat and regional office, Peshawar mainly on the appointments on open seats and employees children quota; that the stance of the petitioner is that it is not the branch of WAPDA and work independently; that the recruitment and related affairs are dealt locally in Peshawar and further that no deviation is made even when enrolment is made on employees children quota but the submissions were brushed aside, findings were given and direction were issued to the petitioner to implement the decision; that respondents No.1 and 2 in similar circumstances are regularly entertaining the complaints of various persons and constantly abusing the powers in the matter which are outside the ambit of his jurisdiction and in negation of the parameters of Constitution of Islamic Republic of Pakistan and "the President Order", hence the instant petition.
10. The petitioner, through the present petition, has expressed its grievance and of course anguish with the orders of the Worthy Wafaqi Mohtasib Islamabad whereby he accepted the complaints of certain persons directed against the petitioner/ company and thus by all counts they were supposed to have been arrayed as respondents in the present petition. However, the petitioner preferred not to implead them in the array of respondents unmindful of the fact that in the event of any adverse order, the rights accrued to them consequent to the orders of the Worthy Wafaqi Mohtasib in their favour could be seriously jeopardized.
11. The main premise of the arguments of the learned counsel for the petitioner/ company is that the worthy Wafaqi Mohtasib was not within his powers to entertain the complaints of the complainants against the petitioner/company (number of complainants not before the court barring a couple of them who have moved their separate CMs for impleadment in this respect) and that the petitioner does not fall within the definition of 'Agency' as per Sub-Article (1) of Article 2 of the President's Order, 1983. He next contended that PESCO is an autonomous and self regulating concern exclusively working in the Province of Khyber Pakhtunkhwa and is not a branch of WAPDA and thus its recruitments and related affairs are dealt with at the local level at Peshawar.
He also contended that no act of maladministration is made out against the petitioner as per clause 2 of Article 2 of the President's Order, 1983 whereby the complaints could be entertained or jurisdiction assumed by the worthy Wafaqi Mohtasib. In support of his contentions, the learned counsel placed reliance on "National Bank of Pakistan Karachi vs. Wafaqi Mohtasib (Ombudsman), Karachi and another" (PLD 1992 Karachi 339), "Pakistan International Airlines Corporation Karachi vs. Wafaqi Mohtasib and others" (1998 SCMR 841), "East West Insurance Company Limited vs. Wafaqi Mohtasib and 3 others" (1999 MLD (Karachi) 3050), "Idris Ahmed Rizwani vs. Federal Public Service Commission through Secretary, Chughtai Plaza, Blue Area, Islamabad and 3 others" (2000 SCMR 1889), "Allied Bank of Pakistan Ltd. Vs. The Wafaqi Mohtasib (Ombudsman) and others" (PLD 2001 Karachi 203), "Aviation Authority vs. Wafaqi Mohtasib (Ombudsman) and others" (PLD 2001 Karachi 304), "Pakistan Intertional Airlines Corporation vs. Air Master (Pvt) Limited and another" (PLD 2004 Karachi 77) and "Ch. Muhammad Yasin vs. Wafaqi Mohtasib (Ombudsman) and others" (2013 CLC 1441). The learned counsel thus contended that the worthy Wafaqi Mohtasib did not have any jurisdiction under the law to entertain the complaints of the complainants in the first hand and then to allow them to the detriment of the petitioner/ company.
12. The learned counsel representing the worthy Wafaqi Mohtasib vehemently controverted the arguments of the learned counsel for the petitioner and contended that the worthy Wafaqi Mohtasib was well within his powers to entertain the complaints of the complainants as they fall within the definition of maladministration as per President's Order No.1 of 1983. He contended that the present petition is not maintainable in view of the fact that the petitioner has not approached the President of Pakistan through a representation as per Article 14 of the Federal Ombudsmen Institutional Reforms Act 2013 and instead directly approached this court.
13. The learned Deputy Attorney General representing the Federal Government supported the arguments of the learned counsel for respondents No.1 and 2 and vehemently contended that the petition is not maintainable as the petitioner has not availed of the alternate and efficacious remedy provided under the Act ibid. Arguments heard and available record perused.
14. Admittedly, the petitioner is a public limited company duly incorporated under the Companies Ordinance 1984 with the Registrar of Companies way back on 23rd April 1988. The Memorandum and Articles of Association and the Certificate of Incorporation produced at the time of arguments are marked as "A" and "B" respectively. It goes without saying that any person filing a suit or a petition on behalf of a Private Ltd Company or for that matter a Public Ltd Company should either be one of its Directors or its Secretary duly authorized and empowered by a special resolution of the Board of Directors to exercise powers to institute, conduct or defend any legal proceedings and in the case in hand, to file a writ petition. In this respect reliance is placed on "Khan Iftikhar Hussain Khan of Mandot Vs. M/S Ghulam Nabi Corporation Limited Lahore" (PLD 1971 SC 550) and "M/S Razo
(Pvt) Private Limited Vs. Director, Karachi City Region Employees Old Age Benefit Institution" (2005 CLD 1208 Karachi) and "Hasnain Cotex Limited through its Director vs. Jasim Khan, Proprietor M/S Suzuki Frontier Motor East Circular Road, D.I.Khan" (PLJ 2012 Peshawar 248).
15. The petitioner has made reference to letter No.368-69/ED/PESCO/BoD dated 10.3.2010 (Annexure "A" of the petition) addressed by the Company Secretary PESCO Peshawar to the HR and Admn Director PESCO Headquarter Peshawar which in turn refers to the decision of the Board of Directors PESCO in its 50'x' meeting held on 4.3.2010 to be a 'Resolution' sufficient enough in favour of the Director (Legal) PESCO Peshawar to institute the present petition. In this respect it would be relevant to refer to para 4 of the said letter which is reproduced as below: "4. To accord approval for authorization of Power of Attorney to institute and defend cases in the Courts of Law on behalf of PESCO.
Resolution Board accorded approval for authorizing CEO PESCO for further delegation of powers of Attorney to HRD, Directors, Manager Legal and Field Managers, PDs in their area of jurisdiction for institution and defend cases in the Court of Law, Tribunals & FTO on behalf of PESCO in the interest of the Company."
Though as per the language of the said 'Resolution', the Board had authorized the CEO PESCO for further delegation of powers of attorney to HRD, Directors, Manager Legal etc in their area of jurisdiction for institution and defend cases in the court of law on behalf of PESCO. However, in the present case, we do not find any written authorization on behalf of the CEO PESCO in respect of further delegation of powers of attorney to the Director (Legal) PESCO Peshawar to in turn sign power of attorney in favour of his counsel. Thus signing of power of attorney by the Director (Legal)
PESCO in favour of his counsel can at best be termed to be his individual act but certainly not on behalf of the petitioner/ company. More so, the said Director (Legal) PESCO Peshawar did not turn up in the High Court in support of the averments made in the petition but instead one Muhammad Shakeel Asstt: Manager, Labour and Law PESCO Peshawar has given his sworn affidavit in respect of the contents of the petition. Being a public limited company, the petitioner could not file the instant petition without a proper resolution of the Board of Directors in favour of either the deponent namely, Muhammad Shakil, or in favour of the Director (Legal) PESCO Peshawar as the latter did not have the authorization to institute the petition without a delegation of the powers of attorney in his favour by the CEO PESCO as per letter dated 10.3.2010. It is by now settled that when law requires a thing to be done in a particular manner, then it has to be done in that manner only and no other manner of doing such an act can be resorted to. Reliance in this regard is placed on "Hakim Ali vs. Muhammad Saleem and others (1992 SCMR 46).
16. The petitioner is aggrieved of the orders of the worthy Wafaqi Mohtasib whereby he entertained certain complaints of the complainants against the petitioner/ company. As per Sub-Article (2) of Article 2 of the President's Order No. I of 1983 in respect of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman).
"Mal-administration" includes:
(i) a decision, process, recommendation, act of omission or commission which:
(a) is contrary to law, rules or regulations or is a departure from established practice or procedure, unless it is bona fide and for valid reasons; or
(b) is perverse, arbitrary or unreasonable, unjust, biased, oppressive, or discriminatory; or
(c) is based on irrelevant grounds; or
(d) involves the exercise of powers or the failure or refusal to do so, for corrupt or improper motives, such as, bribery, jobbery, favouritism, nepotism and administrative excesses; and
(ii) neglect, inattention, delay, incompetence, inefficiency and ineptitude, in the administration or discharge of duties and responsibilities."
17. It has also been held by the august apex court in "Federation of Pakistan through Secretary, Establishment Division Government of Pakistan, Islamabad vs. Muhammad Tariq Pirzada and others" (1999 SCMR 2189) that the Office of Wafaqi Mohtasib (Ombudsman) has been created in order to diagnose, investigate, redress and rectify any injustice done to a person through maladministration. Thus the grievances of the complainants squarely fall within the domain of worthy Wafaqi Mohtasib.
18. The definition of "Agency" in the President's Order No. I of 1983 has been further elaborated in Sub-Article (a) of Article 2 of the Federal Ombudsmen Institutional Reforms Act, 2013 which is as below: "(a) "Agency" means, the Agency defined in the relevant legislation and in relation to the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (P.O.No.1 of 1983) shall include an Agency in which the Federal Government has any share or which has been licensed or registered by the Federal Government and notified by the Federal Government in the Official Gazette."
19. During the course of arguments, the learned counsel for worthy Wafaqi Mohtasib produced notifications in respect of various Electric Supply Companies including Quetta Electric Supply Company (QESCO), Faisalabad Electric Supply Company (FESCO), Islamabad Electric Supply Company (IESCO), Lahore Electric Supply Company (LESCO) and, of course, the petitioner/ company namely, Peshawar Electric Supply Company (PESCO) dated 1.11.2014 together with a Distribution License granted to PESCO by National Electric Power Regulatory Authority (NEPRA)
Islamabad on 12'x' August, 2013. Copies of the same are marked as C, D, E, F, G, H and I respectively.
Such notifications also put to naught the contention of the petitioner to be a self-reliant, self- regulating and autonomous concern. Certainly the Federal Government through NEPRA exercises over all control over PESCO so much so that the Chief Executive of the petitioner/ company assumes the office after a nod by the Federal Government or so to say works in his office at the pleasure of the Federal Government. Mere shrugging off the shoulders by the petitioner / company cannot take it out of the domain of NEPRA or the overall control and watchful eyes of the Federal Government. As such PESCO squarely falls within the definition of "Agency" as per Sub-Article (a) of Article 2 of the Federal Ombudsmen Institutional Reforms Act, 2013.
20. Now coming to another aspect whereby the petitioner/ company without availing of its alternate and, of course, an efficacious remedy under the law has directly opted to approach this court.
Both Article 32 of the President's Order No.1 of 1983 and Article 14 of the Federal Ombudsmen Institutional Reforms Act, 2013 provide for 'Representation' which may be made by an aggrieved party to the President against some decision or order of an Ombudsman. For ready reference, Article 14 of the Act ibid is reproduced as under: "14. Representation.- (1) Any person or party aggrieved by a decision, order, findings or recommendations of an Ombudsman may file representation to the President within thirty days of the decision, order, findings or recommendations.
(2) The operation of the impugned order, decision, findings or recommendations shall remain suspended for period of sixty days, if the representation is made as per sub-section (1).
(3) The representation shall be addressed directly to the President and not through any Ministry, Division or Department.
(4) The representation shall be processed in the office of the President by a person who had been or is qualified to be a judge of the Supreme Court or has been Wafaqi Mohtasib or Federal Tax Ombudsman.
(5) The representation shall be decided within ninety days."
However, instead of availing of such remedy by preferring a representation to the President within 30 days, the petitioner/ company has directly approached this court through the present petition.
In this regard, the Hon'ble Supreme Court has held in a number of cases that direct approach to the High Court by invoking the writ jurisdiction could not be resorted to without availing of the alternate and efficacious remedy under the law. Reliance is placed on "Water And Power Development Authority and others vs. Commissioner, Hazara Division and others" (1992 SCMR 2102), "Messrs Shifa Medicos vs. Wafaqi Mohtasib (Ombudsman) and others (2003 SCMR 928) and "Pakistan Railways through General Manager, Railway Headquarters Office, Lahore vs. Abdul Bari Khan and others" (PLD 2004 SC 127).
In view of the foregoing discussion, we hold the present petition to be both meritless as well as not maintainable before this court and hence the same is dismissed.