' JAWAD HASSAN, J.--- Through this Intra Court Appeal, the Appellant, namely the National Bank of Pakistan (NBP), has called in question judgment rendered in Constitutional Petitions, including W.P.
No, 8260/2014, W.P. No, 31187/2013, W.P. No, 19765/2010, W.P. No,.13400/2010, W.P. No, 13401/2010, W.P.
No, 21843/2010, W.P. No, 22757/2010, W.P. No, 8730/2013, W.P. No, 8731/2013, W.P. No, 25207/2013, W.P.
No, 27942/2013, W.P. No, 28452/2013, W.P. No, 29211/2013, W.P. No, 29217/2013, W.P. No, 29717/2013, W.P.
No, 30704/2013; W.P. No, 32081/2013, W.P. No, 1111/2014, W.P. No, 1112/2014, W.P. No, 2588/2014, W.P. No, 2590/2014, W.P. No,3209/2014 W.P. No, 5903/2014, W.P. No, 5907/2014, W.P. No,7246/2014, W.P. No, 8724/2014, W.P. No, 8798/2014, W.P. No,8956/2014, W.P. No, 8958/2014, W.P. No, 9029/2014, W.P.
No,9551/2014, W.P. No, 10590/2014, W.P. No, 10925/2014, W.P. No,2259/2013 and W.P. No,19091/2015, which were heard, on 30.7.2015 and 15.10.2015, and a consolidated judgment was pronounced on 15.01.2016 by the learned Single Judge in Chamber (the "Impugned Judgment"), whereby Constitutional Petitions filed by the Respondents/ Petitioners were allowed and the Appellant/Respondent was directed to release pensionary benefits of the Respondents/ Petitioners in accordance with Circular No,228 dated 26.12.1977 issued by the Appellant/ Respondent within two months from the date of the decision. {{TABLE}}
2. This judgment shall also render decision on connected Appeals bearing numbers I.C.A.
No,121/2016, I.C.A. No,122/2016, I.C.A.. No, 123/2016, I.C.A. No,124/2016, I.C.A. No,125/2016, I..A. No, 126/2016, I.C.A. No,127/2016, I.C.A. No,128/2016, I.C.A. No, 129/2016, I.C.A. No,130/2016, I.C.A. No,131/2016, I.C.A. No, 132/2016, I.C.A. No,133/2016, I.C.A. No,134/2016, I.C.A. No, 135/2016, I.C.A. No,136/2016, I.C.A. No,137/2016, I.C.A. No, 138/2016, I.C.A. No,139/2016, I.C.A. No,140/2016, I.C.A. No, 141/2016, I.C.A. No,142/2016, I.C.A.
No,143/2016, I.C.A. No, 144/2016, I.C.A. No,145/2016, I.C.A. No,146/2016, I.C.A. No, 148/2016, I.C.A.
No,149/2016, I.C.A. No,150/2016, I.C.A. No, 151/2016, I.C.A. No,152/2016, I.C.A. No,153/2016, I.C.A. No, 154/2016, I.C.A. No,155/2016, I.C.A. No,156/2016, I.C.A. No, 460/2016, I.C.A. No,461/2016, I.C.A. No,462/2016, I.C.A. No, 463/2016, I.C.A. No,464/2016, I.C.A. No,991/2016.
2. Brief facts for the disposal of instant Intra Court Appeals filed under section 3 of Law Reforms Ordinance, 1972 are that the Respondents/Petitioners are retired officials/officers of Appellant/ Respondent which was constituted under the National Bank of Pakistan Ordinance, 1949 and was governed by the NBP Employees Pension Provident and Guarantee Rules, 1958 and the National Bank of Pakistan (Staff) Service Rules, 1973 made thereunder, duly approved by the Federal Government of Pakistan. During their service with the NBP, the Federal Government launched a new pension scheme which was circulated by NBP vide Instruction Circular No,228(C) dated 26.12.1977.
As per Clause 4(b) of the said Circular, the pension of the retired employees of NBP was to be enhanced at the rate of 70% of average emoluments on completion of 30 years qualifying service.
The Respondents/Petitioners opted for the aforesaid Scheme. In para-10 of the aforesaid Scheme it was further mentioned that any change or revision in rates/scales of pension or gratuity that may thereafter be made by the Federal Government shall also apply to the officers/ executives of the Bank. In the year 1999, the Management of the NBP issued another Instruction Circular No,37/1999 dated 16.06.1999, whereby the pension was reduced to almost 33% as against 70% and basic pay was increased, which was assailed in the Constitutional Petitions, which ultimately were allowed through the Impugned Judgment. Hence, this Intra Court Appeal.
4. After hearing the arguments of the parties at length on 21.12.2016, 22.12.2016, 26.12.2016, 27.12.2016 and 28.12.2016 following scot points arising out of instant Intra Court Appeals requiring determination upon which through this judgment, the decision shall be rendered by us: A. Whether the Instruction Circular No,228 (C) dated 26.12.1977 is a statutory instrument, having backing of law, or merely executive instrument issued by the Federal Government'?
B. Whether the Instruction Circular No,37/1999 dated 16.06.1999 issued by the Board of Directors of NBP repeals and overrides the Circular No, 228(C) dated 26.12.1977?
C. Whether the principle of Estoppel is attracted in the instant appeal?
D. Whether the petitions suffer from Laches and are liable to be dismissed?
5. Before proceeding further with the matter for determination of above-mentioned points, it is essential to briefly have a look upon the legislative history of entire NBP laws, rules, regulations and circulars: A. THE ESSENTIAL HISTORY OF LAWS RELATING TO THE NATIONAL BANK OF PAKISTAN: On 09.11.1949, the first legislation in respect of the National Bank of Pakistan (NBP) was promulgated, namely National Bank of Pakistan Ordinance, 1949 (the "1949 Ordinance"), to extend banking facilities generally and under Section 3 of the 1949 Ordinance, NBP was constituted to carry on the business of banking. Under Section 12 of the 1949 Ordinance, "the general superintendence and direction of the affairs and business of the Bank shall be entrusted to the Central Board, which may exercise all powers and do all such acts and things as may be exercised or done by the Bank and are not by this Ordinance expressly directed or required to be done by the bank in general meeting." Further, under Section 26(A)(2) of the 1949 Ordinance, the NBP was authorized to "grant or subsidise, from time to time, pensions, gratuities, bonuses or other funds created for the benefit of its officers and staff or their dependents". Further, under Section 32 of the 1949 Ordinance, the Central Board was authorized, with the previous approval of the Federal Government (Central Government at that time), to make bye-laws not inconsistent with this Ordinance. It was made clear in Section 32(2)(xxviii) of the 1949 Ordinance that such bye-laws may provide for "the recruitment of officers and staff of the bank including the terms and conditions of their service,' and the constitution and management of staff and superannuation funds for the officers and servants of the Banks" .
(ii) In 1958, the NBP Employees Pension Provident and Guarantee Rules, 1958 (the "1958 Rules") were made by the Central Board under Bye-Law 18(a)(V) of the NBP Bye-Laws, with the prior approval of the Central Goverunent. The 1958 Rules created 'the National Bank of Pakistan Employees' Pension Fund', with the objective to provide every employee, who was a member of the Fund with a pension, the amount of which was to be ascertained according to 1958 Rules. Importantly, Rule 17 of the 1958 Rules stated that the pension shall be payable at the rate of one seventieth part for every year's service of the average monthly pay drawn during the last three years of service on the date of retirement. Further, Rule 18 of the 1958 Rules put a ceiling by declaring that the maximum pension shall in no case exceed Rs,650/- per mensem.
(iii) Thereafter, in 1973, the National Bank of Pakistan (Staff) Service Rules, 1973 (the "1973 Rules") were made by the Central Board under Bye-Law 18(a)(iii) of the National Pakistan Bye-Laws, with prior approval of the Central Government. Importantly, under Rule 4 of the 1973 Rules, the Central Board was given powers to amend, modify or omit all or any of the 1973 Rules, with the prior approval of the Federal/Central Government, as may be found necessary from time to time. As per Rule 41 of the 1973 Rules, all employees in the permanent service of NBP became members of the Bank's Provident and Pension Funds excluding those who (i) were on contract basis, (ii) had attained age of 35 years at the time of appointment (iii) were in permanent service of NBP and drawing pension from another source.
(iv) However, on 11.03.1974, the Banks Nationalization Act, 1974 (the "1974 Act") was enacted in public interest to provide for nationalization of the banking business in Pakistan, and Section 9 of the 1974 Act constituted/established the Pakistan Banking Council (PBC), having functions under Section 9(4) of the 1974 Act, including to make policy recommendations to the Federal Government for directing banking activities towards national socio economic objectives and for formulating policy guidelines for the banks. Section 11 of the 1974 Act provided that the Bank shall have an Executive Board consisting of a President and not less than two and not more than four other members to be appointed by the Federal Government, for general direction and superintendence of the affairs and business of the banks. Section 13 of 1974 Act provided that "... all officers and other employees of a bank, shall continue in their respective offices and employments on the same terms and conditions, remuneration and rights as a to pension and gratuity, as were applicable to them immediately before the commencing day". Further, Section 20 of the 1974 Act provided that "The Federal Government may, by notification in the Official Gazette make rules to provide for all matters for which provision is necessary or expedient for the purpose of giving effect to the provision of this Act."
(v) On 31.11.1977, the Government of Pakistan Finance Division (Internal Finance Wing), vide letter No,17(9)-IF.XI/77 (the "1977 Notification"), addressed to Chairman Pakistan Banking Council conveyed the decision to introduce pension and retirement benefits for the officers/executives of banks along the lines of those introduced by the Federal Government for civil servants and to discontinue the existing scheme of pension in NBP Contributory Provident and Gratuity Fund. The date of effect of these new Pension and retirement benefits was stipulated as May, 1977 at the replica rate and scale mentioned in below 1977 Circular.
(vi) On 26.12.1977, an Instruction Circular No, 228(C) (the "1977 Circular") was issued, in respect of 'Establishment of Pensions and Retirement Benefits for Officers/Executives of Banks' (as have been introduced by the Federal Government for Civil Servants) and it was provided in para 2 of the 1977 Circular that "... The contribution made by the bank towards the Contributory Provident Fund shall be withdrawn as that service shall now count for the purpose of pension ...". Further, Clauses 4, 10 and 11 of the 1977 Circular reads as follows: "B- RATE AND SCALE OF PENSION (4.a) Pension shall be payable if the total service of an officer/executive at the time of retirement or death is 10 years or more. ....
(b) Pension shall be calculated at the rate of 70% of average emoluments on completion of 30 years qualifying service. Where qualifying service is less than 30 years but not less than 10 years, proportionate reduction in percentage shall be made. Any amount of pension in excess of Rs,1000/- shall be reduced by 50%...
' C- GRATUITY FOR SERVICE OF LESS THAN 10 YEARS BUT NOT LESS THAN 5 YEARS
5. .......................................................................................................................
D- GRATUITY AND COMMUTATION FOR PENSIONERS RETIRING AFTER 10 YEARS SERVICE 6.
E- FAMILY PENSION
7. .......................................................................................................................
F- PENSIONS/GRATUITIES FOR INJURY OR DEATH IN COURSE OR CONSEQUENCE OF DUTY 8.
9.
Since the rates of pension and gratuity given above have been fixed by the Pay Commission for Banks and Financial Institutions on the same lines as obtaining on the side of the Federal Government, the existing provisions and any changes or revision in the rates or scales of pension or gratuity that may hereinafter be made by the Federal Government shall also apply to the officers/executives of the Banks.
' The existing schemes of Pensions, Contributory Provident Fund and Gratuity shall be discontinued."
(vii) On 18.08.1979, the Bank (Nationalization) (Amendment) Ordinance, 1979 (the "1979 Amendment") was enacted to amend Section 9, whereby further functions of overseeing foreign, operations, establishing a Research Department, establishing a Central Training Institute, acting as arbiter in inter-bank disputes, appointing lead banks in respect of consortium loans, watching the progress of the implementation of the rulings made in SPB's inspection report were entrusted to the Pakistan Banking Council. Through the 1979 Amendment, Section 11 was also amended and subsections (4-A), (4-B) and (4-C) were inserted as follows: "4-A. A bank shall have a Board of Directors- consisting of the President and all the other members of the Executive Boards, one member of the Council to be nominated by the Council and an official of the Ministry of Finance to be nominated by the Federal Government.
4-B. The Board of Directors shall be responsible for overall policy making in respect of the bank's operations .......
4-C .....................................................................
(viii)On 01.01.1980, the National Bank of Pakistan Staff Service Rules, 1980 (the "1980 Rules") were made by the Executive Board under bye-law 18(a) (iii) and (iv) of NBP Bye-Laws, read with Section 11(4) of the 1974 Act. While the 1980 Rules did not provide any formula for pension fixation, Rule 41 of the 1980 Rules provided that "All employees in the permanent service of the Bank shall become members of Bank's provident Fund, Benevolent Fund, Pension/Gratuity and Group Insurance Scheme".
(ix) On 12.01.1983, the Respondent No,1 opted for the Item No,2, the new retirement benefits w,e.f.
01.05.1977/01.07.1977, in exercise of the option afforded under the announcement of Instruction Circular No,228(I) dated 03.07.1978 regarding. 'Retirement Benefits of Officers/Executives'.
(x) On 08.09.1983, another amendment vide Banks (Nationalization) (Amendment) Ordinance, 1983 (the "1983 Amendment"), was introduced by which Section 11(7-A) was inserted and it was provided that '"the Chairman and a member of the Council and the President and a member of an Executive Board shall be liable to such disciplinary action and penalties, to be awarded in such manner and by such authorities, as may be prescribed".
(xi) On 24.07.1985, an Instruction Circular No,804(N) (the "1985 Circular") was issued, in respect of 'Further Liberalization of Pensions Rules, Indexation of Pension and other Allied Matters -- Officers/Executives and Clerical/Non-Clerical Staff of the Bank'.
(xii) On 9.9.1986, an Instruction Circular No,804(ZD) (the "1986 Circular") was issued, in which further concession in pension were granted to all categories of Officers/Executives and Clerical/-Non- Clerical staff of NBP.
(xiii)On 22.09.1988, another amendment vide Banks (Nationalization) (Amendment) Ordinance, 1988 (the "1988 Amendment") was promulgated and Section 5(6) was inserted highlighting that "the Federal Government or a corporation owned or controlled by the Federal Government may from time to time, sell all or any of its shares in the capital of a bank, other than the State Bank, to such persons, and on such terms and conditions, as it may determine." Further, Section 9 of the 1974 Act was amended to give more power to the Banking Council, and Section 11 of 1974' Act was amended by substituting subsection (1) through which composition of Board of Directors of every bank was changed by adding, inter alia members of Banking Council and eminent persons from private sector. Further, a new subsection (1-A) was inserted which provided that "the Board shall have an Executive Committee consisting of its President, three Directors and such other senior executives of the banks as the Board may, from time to time, decide and the Executive Committee shall exercise such powers, and perform such functions as may be delegated to it by the Board from time to time." Moreover, subsections (4-A) to (4-C) (earlier inserted vide 1979 Amendment) were deleted.
(xiv) On 24.01.1989, the Banks (Nationalization) (Amendment) Ordinance, 1989 (the "1989 Amendment") was promulgated whereby section 9 was amended and functions of Banking Council were added, while by amending Section 11. Board of Directors was constituted for every bank consisting of Executives of Banks, Chief Executives of development financial Institutions, members of. Pakistan Banking Council, eminent persons from private sector and Directors from Federal Government.
(xv) On 23.11.1991, the Banks (Nationalization) (Amendment) Act, 1991 (the "1991 Amendment") was promulgated, whereby new Sections 5-A (Sale of Shares) and 5-B (Section 5-A to have effect notwithstanding any other law etc) were inserted. Further, functions of the Council under Section 9 were revised and Section 11 was substituted, whereby Section 11(1) provided that "A bank shall have a Board of Directors consisting of the President and six other members to be nominated by the Federal Government". Further, Section 11(2) also provided that "the finally responded that under section 47(1) the provision of the EOAB Act, did not apply to the petitioner-University. He asserted that the issue in hand was purely jurisdictional, and thus legal, which could be appropriately resolved by this constitutional Court, without determination of any disputed facts. The worthy counsel for the respondent-Institution rebutted the above contention and maintained his preliminary objection non-maintainability of the petition, on the touch stone of the alternate remedy provided to the petitioner under section 33 of the EOAB Act.
11. This Court is a Constitutional Court exercising its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, ("Constitution"), which expressly provides for it to entertain grievances of an aggrieved person, who does not have an alternative remedy provided under the law. However, the judicial consensus that has evolved with time and rendered jurisdictional space for the Constitutional Court to assume jurisdiction, when the remedy provided under the law to the aggrieved person would not be, inter alia, efficaciously meaningful or whether the challenge made is purely jurisdictional as is in the present case. The present petitioner is in essence seeking from this Constitutional Court the interpretation of subsection (f) of section 47 ibid. To be more precise, the meaning and purport of the term statutory body as committed therein. Thus, in case this Court without indulging in determining factual disputes, can resolve the matter of jurisdiction, then assuming jurisdiction in such like cases, should be the rule, and restraining there from should be an exception thereto.
12. In view of the above, this Court would assume jurisdiction only to the extent of jurisdictional issue, so as to determine whether the petitioner-University comes within the purview of a statutory body, as envisaged under section 47 of the EOAB Act or otherwise. However, in case this Court comes to the conclusion that, factual determination are also to be rendered to resolve this or any other contesting claim of the parties, then this constitutional Court shall surely refrain from assuming jurisdiction.
13. Let us now review the general. Theme envisaged by the legislature in enacting the EOAB Act. As provided in its preamble, EOAB Act is enacted to facilitate and ensure the old age benefits for the persons employed in 'Industrial', 'Commercial' and other organizations and matters related therewith. Section 9 ibid mandates contributions from the Employer of an Establishment or an Industry in respect of every person in its ensureable employment. The contribution so collected by the Institution, are maintained in the Employees Old Age Benefits Fund, established under section- 17 ibid. The contribution received by the Institution in respect of ensured persons is, thereafter, utilized for their various prescribed pensions. The Employer, in case of any erroneous payment made to the Institution, can seek the refund thereof under section 15 of the EOAB Act, which reads; "15. Refund of Contributions paid Erroneously; ' An employer shall be entitled to the refund of any contribution paid to the Institution under erroneous belief that it was payable under the provisions of the Act, and shall be entitled to the refund of excess amount of the contribution where such contribution had been paid at a higher rate than the rate prescribed.
' Provided that no contribution or excess amount of any contribution shall be refunded unless an application for such refund is made within six months of the date on which the contribution was paid."
' In cases of complaints received or any question or dispute regarding crucial matters relating to the contribution, the same are determinable by the Institution itself, in terms of section 33 ibid. The decision made under section 33 is reviewable under section 34 ibid, in case new facts are brought to notice of the Institution, which provides:- "34 Review of Decisions.
' The Institution may, subject to regulations, on new facts being brought to its notice, 'review a decision given by it under section 33."
' While a remedy of an appeal has also been provided under section 35 to aggrieved person against the decision of the Institution under section 33 or its review under section 34 ibid. The said provision provides; "35 Appeal to Board. Subject to rules, a person aggrieved by a decision of the Institution under section 33 or on a review under section 34, may appeal to the Board."
' Now to section 47, ibid, this provision clearly stipulates the persons who do not come within the purview of the EOAB Act. It reads that; "47. Act not to apply to certain persons. Nothing in this Act shall apply to;
(a) persons in the service of the State, including members of the armed forces, police force and railway servants;
(b) persons in the service of a local council, a municipal committee, a cantonment board or any other local authority;
(c) persons who are employed in services or installations connected with or incidental to the Armed Forces of Pakistan including an ordinance factory maintained by the Federal Government or Railway administration;
(d) persons in the service of Water and Power Development Authority;
(e) persons in the service of a bank or a banking company; persons in the service of statutory bodies other than those employed in or in connection with the affairs of a factory as defined in section 2(i) of the Factories Act, 1934 (XXV of 1934), or a mine as defined in the Mines Act, 1923 (IV of 1923); ' Provided that workshops maintained exclusively for the purpose of repair or maintenance of equipment or vehicles used in such statutory bodies shall not be treated as factories for the purposes of this clause;
(g) members of the employer's family that is to say, the husband or wife and dependent children of the employer, living in the house in respect of their work for him; and
(h) .......................................................... " (emphasis provided)
' Section 37 of the EOAB Act, provides a penal provision for imprisonment, extendable also to two years or with fine or both for, inter alia, violating the specific orders passed under EOAB Act or rules made there under; while the recovery mechanism of unpaid contribution is recoverable as arrears of land revenue under section-13 read with section-9 of the EOAB Act.
14. Now, moving to the relevant facts, leading to the present petition; it all started with Abasyn Institute of Management of Sciences, a sole proprietorship, owned and controlled by Muhammad Imranullah Khan that was carrying on business of imparting various academic courses, while being affiliated with Gomal University Dera Ismail Khan. This business, it is asserted, ended on 19.07.2008, when the said affiliation was terminated. In the meanwhile, Muhammad Imranullah Khan, the sole proprietor of the Abasyn Institute, aspiring to apply for establishing a university under the Khyber Pakhtunkhwa Registration and Functioning of Private Educational Institutions Ordinance, 2001, incorporated a private limited company in the name and style of M/S Abasyn System of Education (Pvt.) Ltd. ("Company"). The Company had four shareholders; Muhammad Imranullah Khan and his son Irfanullah held 50% of the share capital of the Company (25,020 shares of the Company), while the remaining share capital was equally held by Zimran Ihsan and Adnan Ihsan. Muhammad Imranullah Khan was the Chief Executive, while the remaining three shareholders were the directors of the Company, as per attested copy of the Form-A of the Company for the year 2013.
15. Muhammad Imranullah Khan succeed in establishing a university, when the Provincial Assembly of Khyber Pakhtunkhwa enacted the Act of 2009 duly gazetted on 24.10.2009 and given effect from 1.3.2008. It was under section 3 of the Act of 2009, that the University was established and rendered a legal personality in terms that;--
3. Incorporation.
(1) There shall be established at Peshawar a University to be called as Abasyn University ....
(3) The University shall be a body corporate by the name of Abasyn University having perpetual succession and common seal, and may sue and be sued by the said name.
(4) The University shall be competent to acquire and hold property, both moveable and immovable, and to lease, sell or otherwise transfer any moveable and immoveable property which may have become vested in or been acquired by it.
(5) Notwithstanding anything contained in any other law for the time being enforced, the University shall have academic, financial and administrative autonomy, including the powers to employ officers, teachers and other employees on such terms as may be prescribed, subject to the terms of this Act and Higher Education Commission Ordinance, 2002. In particular, and without prejudice to the authority granted to the Commission by the law, the Government or any authority or auditor appointed by the Government shall have no power to question the policy underlying the allocation of resources approved by the Senate in the annual budget of the University." (emphasis provided)
16. Interestingly, Muhammad Imranullah Khan the Chief Executive of the Company, was also declared the first Chancellor of the Petitioner University under section 9 ibid, whose terms and conditions were to be determined by the Board of Directors of the Company. Moreover, the ultimate ownership of the property, funds and resources of the University were vested in the Board of Directors of the Company under section 25 of the Act of 2009, which expressly provides; "25. Powers of the Board of Directors. The Board of Directors shall;
(a) own, hold, control, and administer the property, funds and resources of the University and raise funds for the purpose of the University upon such Security as may be required under Regulations;
(b) undertake responsibility for the financial viability of the University, including responsibility for ensuring effectiveness of its operations and their continuity; and
(c) consider and pass the resolution of the annual report, plan of work, statement of accounts and the annual budget estimates as recommended by the Senate." (emphasis provided)
17. Now to the main thrust of the petitioner-University against the impugned demand notices served by the respondent-Institution. It was asserted that the petitioner-University was a statutory body and thus, no contribution could be sought from the petitioner under the said enactment. In order to appreciate this legal stance taken by the petitioner-University, this Court would have to revisit the provisions contained in section 47(f) of the EOAB Act, which provides;-
(f) "persons in the service of statutory bodies other than those employed in or in connection with the affairs of a factory as defined in section 2(i) of the Factories Act, 1934 (XXV of 1934), or a mine as defined in the Mines Act, 1923 (IV of 1923)."
18. The careful reading of the above provision reveals that the legislature in its wisdom has neither defined the term statutory body nor qualified the same by its ownership, control or nature and scope of business. The plain and simple interpretation of the said ptovision provides for any legal entity created by an enactment passed by the Parliament or a Provincial Assembly, irrespective of its ownership, control or purpose. The only two reservations provided therein are that the persons employed in the statutory body, do not perform services of or in connection with the affairs of a factory, as defined in Factory Act, 1934, or a mine, as defined in Mines Act, 1923. The contesting parties are in consonance that the persons employed in the petitioner-University do not come within the said two exceptions. In fact, the stance taken by the respondent-Institution is that the petitioner-University is owned and controlled by the Company, registered under the Companies Ordinance, 1984 ("Ordinance") and is a profit earning commercial establishment. Hence, it would come within the purview of the scheme provided under the EOAB Act.
19. About two Centuries ago, the Privy Council in Crawford v. Spooner's case (1846) 6 Moore PC 1 laid down the basic principle of interpretation of statutes, which has been generally followed thereafter in all Commonwealth jurisdiction:-- "we cannot aid the Legislature's defective phrasing of an Act, we cannot add or mend and, by construction make up deficiencies which are left there."
' A statute is to be read as enacted; each word expressed therein has to be given its ordinary meaning. It would not be appropriate on the I part of the Courts to substitute or add a word, for what has been clearly provided in an enactment. In case of any conflict in the provisions or contest in interpreting the same, all efforts are to be made to first resolve and reconcile the provisions provided in the statute and only in exceptional cases, where the interpretation of the provision is leading to an absurdity and it is absolutely necessary, that Courts may intervene, providing refuge to save the provision contained in the enactment. For legislation is a domain of the Parliament, and surely beyond the power vested in Courts, and as enshrined in the principle of Trichotomy of Power, running through our Constitution.
20. Now, moving on to the next contention of the respondent-Institution regarding the insistence for this Court to pierce the veil of the three distinct persons, in order to adjudge the legality of the impugned demand for the contribution by the Institution. The said three persons are; ' Firstly, Abasyn Institute of Management of Sciences, the sole proprietorship, owned and controlled by Mr. Muhammad Imranullah Khan; ' Secondly, M/S Abasyn System of Education (Pvt.) Ltd., a company registered under the Ordinance, where Muhammad Imranullah Khan has fifty percent share capital and is also as its Chief Executive, and ' Finally, the Abasyn University, a University established under the Act of 2009 having its independent legal personality to sue and be sued in its own name and with Imranullah Khan, as its Chancellor; and its property owned by the Board of Director of the Company.
' Each of the three persons are independent and separate legal personalities. The mere fact that Muhammad Imranullah Khan has crucial role in each of the three entities, would not disturb their independent legal personalities.
21. In all economically alive countries, such as Pakistan, the principle of limited liability of shareholders is ordinarily protected under the law to boast economic growth. Under this principle, the liability of a shareholder is restricted to the value of his shares in the company, and in case of fully paid up shares, the shareholder would not be liable foc the actions of the company. This separate and independent legal personality is preserved throughout the corporate world to encourage, attract, protect, and ensure investment in an economy. It is only in exceptional cases, when shareholders/Directors are also challenged to face the penal or financial consequences, for the actions of the company.
22. The general judicial consensus is not to pierce the veil of incorporation of the company and to preserve the doctrine of separate legal personality of the company and the limited liability of its shareholders. The Courts sparingly exercise their authority by piercing the veil of incorporation of the company and that too in exceptional circumstances; when sham or facade corporate entities are created to legally blanket the illegal actions of the controlling shareholders or the governing directors Antonio Gramsei Shipping, v. Stepanovs (2011) 1 Lloyds Rep. 647, Kensington International v. Republic of Congo (2006) 2 BCLC 296; when companies are setup to avoid execution of Court decision. Gilford Motor Co. Ltd. v. Horn (1933) Ch 935, CA Jones v. Lipman (1962) 1 WLR 832.
' A Court in United Kingdom in Adams v. Cape Plc [2000] 1 WLR 1545 while considering whether a subsidiary company carrying on business in the United States of America, despite its INCORPORATION there could render the principal company, registered in the United Kingdom, liable for its actions, finally decided not to lift the veil of incorporation despite serious challenge made on the impugned action being against the interest of justice. The worthy Court maintained that, as the companies had the right to use the corporate structure to avoid financial exposure and liability, in terms that:- "as a matter of law the court is entitled to lift the corporate veil as against a defendant company which is the member of a corporate group, merely because the corporate structure has been used so as to ensure that the legal liability (if any) in respect of particular future activities of the group (and correspondingly the risk of enforcement of that liability) will fall on another member of the group rather than the defendant company. Whether or not this is desirable, the right to use a corporate structure in this manner is inherent in our corporate law." (emphasis provided)
23. In the present case, Sections 9 and 25 of the Act of 2009 are clear in its content; there appears no sham or facade 'in incorporating the Company, the entire arrangement is open and has the blessing of the legislature. When the vires of the Act of 2009 have not been challenged before this Court, the independent legal personality of the University and the -control of the Board of Directors of the Company, as provided therein, cannot be questioned or commented upon by this Court in the present proceedings. Thus, Muhammad Imranullah Khan has, along with his three other shareholders and Directors of the Company, intelligently availed the corporate structure, and also obtained the legislative advantage and sanction, by establishing an independent statutory University.
24. Now, that this Court has accepted the independent legal personality of the petitioner-University and its incorporation being based upon the 'Provincial Legislative enactment, Act of 2009 and not by any subsequent registration or incorporation under the Ordinance, the petitioner-University clearly fulfills the attributes of a statutory body having its independent legal personality, as explained by the apex Court in Pakistan Telecommunication's case (2016 SCM R 1220), wherein it was explained; "5. The appellant company was incorporated as a limited company under the provisions of the Companies Ordinance,' 1984. It did not come into existence under the Pakistan Telecommunication (Re-organization) Act, 1996. This Act only provided that a company limited by shares shall be incorporated under the provisions of the Companies Organization) Act, 1996....
6. In our view only such entities can be described as statutory bodies which come into existence by virtue of a Statute. Where the legislature has not brought into existence an entity through a special law but the same has been incorporated under some existing statute then such entity cannot to be assigned the status of a statutory body. If every entity that a formed under some existing statute is to be described as 'statutory body' then we are afraid every limited company incorporated under the Companies Ordinance, 1984, every partnership concern formed under the Partnership Act, every association formed under the Societies Act and every co-operative society formed under the Cooperative Societies Act is also to be described as 'statutory body'. For an entity to be described as a 'statutory body', its birth itself should have been caused by a special statute. In other words, such entity should come into existence by virtue of a statute itself and not established under the provisions of an already existing statute The deciding, factor would be when the appellant company, as a separate and distinct entity limited by shares, was incorporated under the provisions of the Companies Ordinance, 1984. It matters not that at the time of its incorporation its shares were solely held by the Federal Government." (emphasis provided)
Keeping in view the meaning of statutory body, as explained in the above case, as our guiding principle, and applying the same to the facts of the present case, it can, therefore, safely be stated that, the petitioner-University falls within the purview of a Statutory Body, as provided under section 47(f) ibid. And thus, the petitioner-University is legally exempt from paying any contribution to the Institution under section 9 of EOAB Act.
25. This being the position, the decision of Ghee Corporation of Pakistan's case (supra) and PTCL's case (supra) relied upon by the worthy counsel for the respondent - Institution do not apply to the facts and circumstances of the present case. In the Ghee Caporation's case, prior to the enactment, Ghee Corporation was already registered with the Institution and hence declared not to come within the exceptions provided under section-47 of the EOAB Act. While, in PTCL's case, it was noted that PTCL after the enactment was duly registered, as the company under the Ordinance, and thus, correctly declared not to fall within the exceptions provided in section 47 of the EOAB Act.
26. As far as the demand made by the petitioner-University warranting the return of Rs,192,063/- having been coercively extracted by the respondent-Institution, it is noted that there is no evidence in support thereof available on the record of the present case. This being the position, the petitioner-University would require to prove its claim by producing cogent and reliable evidence.
This, we are afraid, is beyond the domain of this Constitutional Court, more so when the petitioner has an alternative remedy to seek this relief before the Institution under the enabling provisions of EOAB Act. The petitioner-University, if so advised, may seek its remedy before the appropriate forum provided under the EOAB Act.
27. Accordingly, for the reasons stated above, this Court holds that,- ' Firstly, the notice of dated 21.10.2011 which is a demand notice served upon the petitioner University by the Institution under section 12(3) of the EOAB Act for an amount of Rs,1.30 Million for the period commencing from January, 2008 to September, 2011 is without lawful authority, as the provisiong of the EOAB Act do not apply to the Petitioner University under Section 47(f) ibid; ' Secondly, the demand notice of 1.11.2011 served by the Institution upon the petitioner-University for an amount of Rs,2.206 Million for failing to pay the due contribution and for initiating the recovery proceeding as envisaged under section 79 of the Land Revenue Act, 1967, is without lawful authority, as the provisions of the EOAB Act do not apply to the Petitioner University under Section 47(1) ibid; and ' Thirdly, the return of Rs,1.902 million made from the petitioner-University by the Institution, claimed to be dues of Abasyn Institution, a distinct person, cannot be ordered by this Court, as the Petitioner-University has to prove its claim for which it has an alternative remedy provided under the provisions of the EOAB Act and thus may, if so advised, seek this relief there from.