Through the Instant order , we intend to decide the captioned intra court appeal along with I.C.A. No. 226487 of 2018 and I.C.A. No.231 179 of 2018 through which the impugned judgment announced on 28.6.2018 allowing the W.P. No. 65400 of 2017 filed by respondent No.1, has been challenged.
2. The brief facts leading to the filing of the instant Intra court appeals are that respondent No.1 had challenged the order dated 10.4.2017 whereby he was retired on attaining the age of superannuation w.e.f. 09.4.2017, through W.P. No.65400 of 2017, wherein his basic stance was that he had been reappointed for three years by the Board of NESP AK Private Limited for a period of three years commencing from 16.8.2016 to 15.8.2019, therefore, he could not have been retired through the order dated 10.4.2017, which had been issued by an incompetent authority and in violation of the governing law .
3. At the outset learned counsel for the appellants stated that since the matter relates to the maintainability of the writ petition itself, out of which these intra court appeals have arisen, therefore, the legal issue relating to the jurisdiction be decided at the first instance.
4. In this view of the matter , we have heard learned counsel for the parties on the question of maintainability of the writ petition. Messrs Hafiz Tariq Nasim led the arguments in this regard and pointed out that National Engineering Services Pakistan (Pvt.) Limited ("NESP AK") is a private limited company registered under the Companies Act, 1913 and the matter relates to the terms and conditions of appointment / re-appointment of respondent No. 1 as Managing Director of the aforesaid private limited company . He added that the matter in hand further relates to the non-statutory rules of the said company , that is, NESP AK Chief Executive Service Rules, 1977.
5. Learned counsel for the appellant stated that respondent No.1 attained the age of superannuation, accordingly , he was retired through order dated 10.4.2017 w.e.f. 09.4.2017. He applied for gratuity and other emoluments and benefits under the above noted non-statu tory rules of 1977 and in this way, accepted his retirement. However , he filed W.P. No. 65400 of 2017 on 05.9.2017 challenging the order dated 10.4.2017 on the ground that he was granted another extension for three years as M.D./CEO before his superannuation, therefore, he could not have been retired through the order dated 10.4.2017.
6. He further explained that since the post of M.D./CEO NESP AK had become vacant, so a transparent procedure for filling the post was initiated through advertisement dated 01.10.2017, in terms of the decision of the Board of Directors of NESP AK. The appellant applied for the said post and under the provisions of The Companies Act, 2017, the Government of Pakistan approved his name for appointment on 29.5.2018. He further stated that respondent No. 1 obtained an order dated 06.6.2018 whereby the appointment of new M.D. till the next date of hearing was restrained and only for this reason the notification of the appointment of the appellant was withheld.
He further stated that the entire exercise of the new appointment was within the knowledge of respondent No.1, but he did not implead the appellant in the writ petition, only to take the benefit at the back of the appellant. He further stated that the appellant is an aggrieved person for the reason that the writ petitio n filed by respondent No. 1 has been allowed.
7. He further argued that the impugned judgment failed to decide the question of jurisdiction/maintainability at the first instance and therefore, is liable to be interfered with by this Court. In this regard, he referred to judgments reported as D.G.Customs Evaluation, Karachi and another v. Messrs Trade International Lahore and others (2014 SCMR 15), Syed Muhammad Hussain Shah v. Abdul Qayyum and others (2011 SCMR 743), Hafiz Muhammad Siddique Anwar v. Faisalabad Development Authority and others (2007 SCMR 1126), Executive District Officer Schools and Literacy District Dir Lower and others v. Qamar Dost Khan and others (2006 SCMR 1630 ), Mansub Ali v. Amir and 3 others (PLD 1971 SC 124) and Amanullah and others v.The State and others (PLD 2004 Quetta 105).
8. He next contended that since the matter revolves around the fact that terms and conditions of service of the respondent No.1, were regulated by non-statutory rules, therefore, the writ petition itself was not competent. In this regard he relied upon the judgment reported as Muhammad Zaman and others v. Government of Pakistan through Secretary , Finance Division (Regulation Wing), Islamabad and others (2017 SCMR 571), Syed Nazir Gillani v.
Pakistan Red Crescent Society and another (2014 SCMR 982 also reported as 2014 PLC (C. S.) 961) and Abdul Wahab and others v . HBL and others (2013 SCMR 1383 also reported as 2014 PLC (C. S.) 393).
9. He argued that the matter was clearly barred by the principle of laches, particularly in view of the conduct of respondent No.l. He added that the said respondent No.1 had accepted his retirement and in view of the same he had approached NESP AK for his dues. He further explained that the dates involved in the matter were of crucial importance, but were ignored by the learned Single Bench while passing the impugned judgment. In this regard he pointed out that respondent No.1 stood retired, through Office Order dated 10.4.2017. He approached the NESP AK through letter dated 14.4.2017 for paymen t of his provident fund and gratuity etc. Then he approached the office of NESP AK vide letter dated 17.4.2017 for purchasing the two official vehicles under his use and this letter was replied to by NESP AK vide letter dated 09.6.2017. He again approached NESP AK vide letter date 05.5.2017 for purchasing the household articles etc. at book value. He further contended that in the meanwhile the Companies Act, 2017 had been promulgated on 30.5.2017, empowering the Government to nominate the Chief Executive of the Company . On 21.8.2017, a new Board of Directors was appointed by the Government and its first meeting took place on 09.9.2017. The respondent No.1 filed writ petition on 05.9.2017 with the following prayer:- `In view of the above submissions it is most respectfully prayed that this petition may graciously be accepted, the order dated 10.4.2017 purporting to retire the petitioner from the office of MD/CEO NESP AK be declared as illegal and without lawful authority and the petitioner may be declared to have been appointed/re-appointed in accordance with the relevant provisions of Law and Rules as MD/CEO, NESP AK until 14.8.2019 and the Respondents may kindly be ordered to refrain from convening the so-called meeting of the BOD on 9.9.2017 vide notification dated 23.8.2017 or any other meeting till the final decision of the present petition.
It is further respectfully prayed that respondents may kindly be ordered to refrain from creating any hurdles in the smooth functioning functions of the petitioner as MD/CEO NESP AK and also from withholding his salary and/or any facility/amenity to which he is entitled as MD, NESP AK during the pendency of the petition."
10. He reiterated that the advertisement for the position of MD/CEO NESP AK was published on 01.10.2017, however , vide order dated 06.6.2018 learned Single Bench restrained from making any appointment against the post of M.D., till the next date of hearing. He then explained that writ petition filed by respondent No.1 was allowed through impugned judgment announced on 28.6.2018, which has been challenged through the instant intra court appeal along with two other ICAs filed by the NESP AK as well as by the government.
11. He then pointed out that this Court vide order dated 12.7.2018 suspended the operation of the impugned judgment. However , when the impugned judgment was announced, the responden t No. 1 approached NESP AK for release of his salaries vide letter dated 28.6.2018 and by exerting undue pressure got the payment released for more than Rs.14 million in his favour without even working for a single day. On the other hand, as the impugned judgment had been suspended, the appe llant was notified as Managing Director of NESP AK and he accordingly joined the of fice, subject to the final order to be passed by this Court, in the instant intra court appeals.
12. He added that on 30.7.2018, respondent No.1 filed a Civil Miscellaneous Application before this Court for restraining NESP AK from entering into a contract with the appellant, thereafter , the respondent No. 1 filed CPLA No. 1870-L of 2018 against the appellant and others, while challenging the order dated 12.7.2018 passed by this Court in the instant intra court appeal i.e. I.C.A. No. 225091 of 2018. The said CPLA was withdrawn and accordingly dismissed by the Hon'ble Supreme Court of Pakistan vide order dated 20.8.2018. The learned counsel then drew the attention of this Court to C.M. No. 7 of 2018 filed by him in the instant intra court appeal through which relevant documents were placed on the record. He read out paragraph 2 of the said application wherein it had been stated that after hearing the learned counsel for respondent No. 1 (Mr. Amjad Ali Khan) the Hon'ble Supreme Court of Pakistan observed in clear terms that writ petition filed by Mr. Amjad Ali Khan was not maintainable, so how could he approach this Court. It was further mentioned in the said application that after realizing the weaknesses of his case learned counsel for respondent No.1 withdrew his CPLA, which is confirmed from the annexed certified copy of order passed by the Hon'ble Supreme Court of Pakistan on 20.8.2018.
In such circumstances, he further point ed out that respondent No. 1 has not even filed a reply to the said application, which was in any case, also supported by an af fidavit of the appellant.
13. Learned counsel for the appellant pointed out that the stance of respondent No.1 before the learned Single Bench has been noted in paragraph 5 of the impugned judgment, to the effect that the terms and conditions of service of MD/CEO., NESP AK are gover ned under the NESP AK Chief Executive Service Rules, 1977. He further pointed out that the stance of respondent No. 1 before learned Single Bench was again noted in the said paragraph wherein the said Service Rules of 1977 were relied upon regarding his right to purchase the household items/furnishings, on the basis of their book value.
14. He then pointed out that through the impugned judgment announced on 28.6.2018, learned Single Bench had clearly noted in paragraph 7 of the said impugned judgment to the effect that "admittedly the terms and conditions of service of the petitioner were governed under the NESP AK Chief Executive Service Rules, 1977. .." therefore, the writ petition 'itself was not maintainable. He further stated that once the learned Single Bench had reached this conclusion, it should have decided the question a maintainability of the writ petition before proceeding any further .
He also pointed out that learned Single Bench had further relied upon these rules and pointed to paragraph 11 of the impugned judgment wherein Rule 6 of the said Rules was noted regarding the option to purchase the furnishings at book value.
15. He further pointed out to letter dated 14.4.2017 by the said respondent No. 1 to the Chief Financial Officer/Company Secretary of NESP AK wherein he had stated as follows:- "Please pay me provident fund, gratuity and leave encashment of my un-availed leave as per company rules according to my entitlement. However , a sum equal to 25% of the total amounts payable to me on account of above matter may be retained by the company till the final settlement of my dues."
Learned counsel further refereed to letter dated 17.4.2017 through which it had been stated by the said respondent No.1, as follows:- "Vehicle No.LEJ-1 145 Toyota Fortuner Mode-2013 and Vehicle No.LEJ-35, Honda Civic Model-2017 are in my use as per my entitlement as a Chief Executive/Managing Director of NESP AK.
As per company Rule/Policy I am entitled to purchase these two vehicles. However , these vehicles will remain in my use till a decision in this respect is made by the Board of Directors..."
He then referred to letter dated 9-6-2017 written by NESP AK to respondent No.1 addressing him as former Managing Director , which is reproduced below:-- "We are pleased to inform you that as per proviso to Rule 6 of the Chief Executive Rules, you are entitled to opt for purchase of only one car at depreciated value on your retirement from company service. This option is subject to confirmation from NESP AK Board of Directors. Since you have been retired from company service on April 09, 2017 A.N. and following two company vehicles have been retained by you.
LEJ-1 145 TOYOT A FOR TUNER Model-2013 LEJ-35 HONDA CIVIC Model-2017 In the light of the above rule we request you to retain one vehicle and return the other vehicle at the earliest. The case for the purchase of vehicle retained by you will be put up to the Board of Directors for approval."
He also referred to letter dated 5.5.2017 by the respondent No.1 to NESP AK, which is reproduced below:- "As you would be aware that the due to serious Audit objections on the purchas e of house by NESP AK for the residence of the Managing Director , I opted not to stay there on assuming the charge of MD in August, 2013.
Thereafter the BOD decided to dispose off this house, the process of which is still underway .
Certain items (As per list attached and shifted in the presence of Mr. Asif Imran, Office Assistant M&QC Division and Mr. Khalid Mushtaq, Staff Officer to MD) which were under the use of previo us MD also remained under my use as MD at my residence. I intend to purchase these on the book value, the amount of which may be deducted from my dues with NESP AK after concurring with me the book valued amount(s) to be charged and items to be purchased.
However , I believe the purchase of prices of these items would be market compatible viz-a-viz years of purchase so as to arrive at the realistic book values."
It needs to be noted that this letter was addressed by the respondent No.1 to the then Additional Secretary who was at that point in time, serving as the Managing Director , NESP AK. The letter dated 09.6.2017 was written to respondent No.1 addressing him as the former Managing Director .
In view of the above, he further stated that despite the above noted conduct of the respondent No. 1, he filed the W.P. No. 65400 of 2017 before the learned Single Bench on 06.9.2017. Learned counsel for the appellant stated that he highlighted the above letters simply to point out that respondent No. 1 hims elf had acted upon the Rules of 1977 and had approached NESP AK under the said Rules for the purchase of vehicles as well as other items and had also claimed his retirement benefits under the said Rules and that while relying upon the said Rules, he could not have filed the writ petition after almo st five months, in which the impugned judgment has been passed while ignoring the non-statutory nature of said rules.
16. Messrs Aurangzeb Mirza and Saad Rasool, Advocates for NESP AK/appellate in I.C.A. No.226487 of 2018, also adopted the arguments of Messrs Hafiz Tariq Nasim and pointed out that in such circumstances the only remedy available to respondent No.1 was to file a suit for damages, if so advised. They further added that the process of appointment of the new Managing Director/CEO, from open market, on merits had been initiated by NESP AK and respondent No. 5/appellant in I.C.A. No.225091 of 2018 had been selected and appointed. They further pointed out that the learned Single Bench had clearly noted through the impugned judgment that the employment of respondent No. 1 with NESP AK was contractual in nature; therefore, writ petition was not maintainable, in view of the above noted conduct of respondent No. 1. They further highlighted that Companies Ordinance, 1984 has been repealed and Companies Act, 2017 has been promulgated with effect from 30.5. 2017, therefore, the matter had automatically come to an end and in such circumstances the impugned judgment, without considering the aspect of the non-statutory rules could not have been passed.
17. Learned Additional Attorney General for the Federation of Pakistan/appellant in I.C.A. No.231 179 of 2018, while adopting the arguments of Messrs Hafiz Tariq Nasim stated that the writ petition suffered from laches as it was filed after about five months and that the learned Single Bench had wrongly noted that the superior courts have held that in such cases the period for filing a constitutional petition is six months. He added that it is ninety days.
Moreover , the question of laches had to be decided first, while keeping in view the conduct of the respondent No.1.
18. On the other hand, Messrs Waqar A. Sheikh and Nadeem Ahmad Sheikh, led the arguments on behalf of the respondent No. 1 and stated that he was appointed as Managing Director/Chief Executive Officer of NESP AK vide order dated 15.8.2013 for the period starting from 15.8.2013 to 14.8.2016; and that the case of the respondent No.1 was that vide notification dated 28.6.2016, he was appointed for another term of three years starting from 16.8.2016 to 15.8.2019. However , through order dated 10.4.2017, issued with the approval of the then Chairman/Board of Directors of NESP AK retired him on attaining the age of superannuation w.e.f. 09.4.2017. They added that the service of the respondent No. 1 was regulated by the Companies Ordinance, 1984. He could have been removed from his office under the provisions of Section 202 of the said Ordinance. The office order dated 10.4.2017 regarding his retirement was stated to be passed by the Chairman of the Board of Directors and accordingly was challenged before the learned Single Bench. They argued that the NESP AK Employees Service Rules, 1973 were not applicable to the Managing Director . Further that the NESP AK Chief Executive Service Rules, 1977 were also not applicable for the reason that the said Rules provide d for the age of the Managing Director as 50 years and the tenure of the said office has been stated therein, as five years. They argued that the Rules could not have precedence over the statutory provisions of Sections 199 and 202 of the Companies Ordinance, 1984. It was further stated that, the Federal Government had no authority in the matter of removing the respondent No. 1 from the position of Managing Director , NESP AK through the impugned order dated 10.4.2017.
They added that the said office order was issued by a Section Officer of the Ministry of Water and Power , Government of Pakistan, statedly upon the approval of the Chairman, Board of Directors, NESP AK and the Company Secretary was directed to get the said decision ratified by the Board in its next meeting. They then referred to the Articles of Association of NESP AK, Article 45 which is reproduced below:- "45. Chief Executive The Directors shall appoint a Chief Executive in accordance with the provisions of Sections 198 and 199. The terms and conditions of the Chief Executive shall be determined by the Board. The general conduct, administration and management of the business propert y and affairs of the company shall, subject to the control and supervision and such business requisition, directing and delegation of powers as may be given by the Board of Directors from time to time, be vested in the Chief Executive."
19. They then referred to the order dated 21.5.2013 passed by the Hon'ble Supreme Court of Pakistan in C.M.A.
No. 2386 of 2013 in C.M.A. No. 1564 of 2013 in Constitution Petition No. 23 of 2012 (regarding appointments made between 01.3.2013 to 16.3.2013 in the government owned companies, autonomo us bodies, regulatory agencies, etc.) and highlighted that through this order , in terms of Article 45 of the Articles of Association of NESP AK, it was held that it was the job of the Directors to appoint the Chief Executive of the NESP AK. They next contended that the Board of Directors in its 141st meeting held on 27.6.2016 approved the re-appointment of the respondent No. 1 as the Managing Director/Chief Executive of NESP AK for another term of three years w .e. f. 16.8 .2016.
20. While referring to the NESP AK (Pvt.) Limited Chief Executive Service Rules, 1977 they referred to Rule 4, which provides as follows:- "4. Appointment: The appointment to the post of Chief Executive will be made with the approval of the Board, both by director recruitment and promotion. The maximum age for direct appointment as Chief Executive would be 50 years unless relaxation is allowed by the Board in an individual case."
21. They next contended that Public Sector Companies (Corporate Governance) Rules, 2013, as well as, Public Sector Companies (Appointment of Chief Executive) Guidelines, 2015 are relevant to the facts and circumstances of the case and the Chief Executive has to be appointed in accordance with the said Rules/Guidelines. Accordingly , they stated that the writ petition was maintainable and that the learned Single Bench had rightly allowed the same and that the question of laches is of no consequence in view of the order passed by the Board of Directors of NESP AK whereby the respondent No.1 had been granted extension for three years.
22. Learned counsel for the respondent No. 1 in order to substantiate their arguments placed reliance on the judgments reported as Asad I.A. Khan v. Federation of Pakistan and others (2014 SCMR 320), Muhammad Idrish v. East Pakistan Timber Merchants Grou p and another (PLD 1968 SC 412), Syed Azhar Abbas Jafri v. HBFC Workmen Union of Pakistan and others (2017 PLC (C. S.) 1393), Engr. Ghazanfar Ali Khan and another v. F.O.P. and others (PLD 2014 Lahore 375) and Polyster Employees Union (C.B.A.) Registered v. Trustees Union and 2 others (2013 CLD 108 ).
23. Heard. Record perused.
24. At the outset, it is noted that the learned counsel representing the parties in the instant appeals have confined their arguments to the maintainability of the writ petition and the question of laches.
25. Accordingly , the question of jurisdiction relating to the maintainability .of the writ petition is being taken up first.
It is settled law that when the question of jurisdiction goes to the very root of the case and renders the entire proceedings corum-non-judice thereby A vitiating the same and making the judgment illegal and void as well as the settled proposition of law that when the question of jurisdiction is of fundamental nature in the judicial proceedings, then the same should be decided on priority basis. These principles of law are settled in view of the cases reported as D. G. Customs Evaluation, Karachi and another v. Messrs Trade International Lahore and others (2014 SCMR 15), Syed Muhammad Hussain Shah v. Abdul Qayyum and others (2011 SCMR 743), Hafiz Muhammad Siddique Anwar v. Faisalabad Development Autho rity and others (2007 SCMR 1126), Executive District Officer Schools and Literacy , District Dir Lower and others v. Qamar Dost Khan and others (2006 SCMR 1630 ), Maulvi Aziz-ur -Rehman v. Ahmad Khan and others (2004 SCMR 1622 ), Ali Muhammad and others v. Muhammad Sham and others (PLD 1996 SC 292), Shagufta Begum v. The Income Tax Officer , Circle-X1, Zone-B, Lahore (PLD 1989 SC 360), Mansab Ali v. Amir and 3 others (PLD 1971 SC 124), Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (PLD 1965 SC 690) and Amanullah and others v. The State and others (PLD 2004 Quetta 105). The ratio of these judgments being that the question of jurisdiction can be raised at any stage; question of jurisdiction being of fundamental nature in judicial proceedings should be decided first on priority basis; that consent or acquiescence of the parties has never been considered as a factor conferring jurisdiction; that if mandatory condition for exercise of jurisdiction by Court, Tribunal or Authority is not fulfilled then all proceedings which followed become illegal and without jurisd iction and that the jurisdiction is conferred either by the Constitution or the law.
26. While applying these principles to the facts and circumstances of the instant case, we find that the post of Managing Director/Chief Executive of NESP AK (Private) Limited was held by the learned Single Bench as contractual and governed by the NESP AK Chief Executive Service Rules, 1977. Accordingly , once the learned Single Bench had found that to be so, the question of jurisdiction / maintainability should have been decided at the first instance. We have also gone through the record of the instant case with the able assistance of the learned counsel for the parties. As per the stance of the learned counsel representing all the appellants, it transpires that the Board of Directors had framed various Service Rules while exercising powers conferred by the Memorandum of Association as well as Articles of Association for the employees of the said private limited company .
27. The National Engineering Services Pakistan (Pvt.) Limited Chief Executive Service Rules, 1977 provide as follows:- "4. The appointment to the post of Chief Executive will be made with the approval of the Board, both the direct recruitment and promotion. The maximum age of direct appointment as Chief Executive would be 50 years unless relaxation is allowed by the Board in an individual case.
5. The tenure of appointment as Chief Executive would be five years except where otherwise decided by the Board in an individual case. The Board may allow , a second tenure in the case of an individual but the Chief Executive will not be retained in service beyond the terms of the second tenure."
The Note to Rule 6 provides as follows:- "A Chief Executive may on his retirement opt to purchase the car placed at his disposal by the Company . The cost payable for the car would be depreciated value of the car in the books of the Company . This option shall be subject to confirmation by the Board.
House furnishings upto 100,000/- (once in service)
Note:- The furnishing will become the property of the Chief Executive after five years of their provision. If the Chief Executive leaves Company service before five years, he will be allowed to purchase the furnishings, at book value."
Rule 14 of the said Rules also provides as under:- "A Chief Executive who retires/resigns on completion of satisfactory service of three years will continue to enjoy group insurance cover at the cost of the Company upto his attaining the age of 70 years."
28. Keeping the above in view, along with the conduct of the respondent No.1, as noted in detail above, it is evident that the terms and conditions of the contractual appointment of the said respondent No. 1 were governed by the non-statutory rules of NESP AK. In such circumstances and in view of the settled law, the writ petition filed by the said respondent No. 1 was clearly not maintainable. In reaching this conclusion, we are fortified by the judgments reported as Qazi Munir Ahmed v. Rawalpindi Medical College and Allied Hospital through Principal and others (2019 SCMR 648), Pakistan Airline Pilots Association and others v. Pakistan International Airline and another (2019 SCMR 278), Muhammad Zaman and others v. Government of Pakistan through Secretary , Finance Division (Regulation Wing), Islamabad and others (2017 SCMR 571), Chairman, NADRA , Islamabad, through Chairman Islamabad and another v. Muhammad Ali Shah and others (2017 SCMR 1979 ), Pakistan Defence Officers Housing Authority v. Mrs. Itrat Sajjad Khan and others (2017 SCMR 2010 ), PIA Corporation v. Syed Suleman Alam Rizvi and others (2015 SCMR 1545 ), Abdul Wahab and others v. HBL and others (2013 SCMR 1383 also reported as 2014 PLC (C. S.) 393), Federation of Pakistan through Secreta ry Law, Justice and Parliamentary Affair s v.
Muhammad Azam Chattha (2013 SCMR 120), Zari Taraqiati Bank Ltd. and others v. Said Rehman and others (2014 SCMR 642 also reported as 2013 PLC (C.S.) 1223 ), Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others (PLD 2011 SC 132 and also reported as 2011 PLC (C.S.) 623), Abdul Rashid Khan v.
Registrar , Bahauddin Zakaria University , Multan and others (2011 SCMR 944), Pakistan Red Crescent Society and another v. Syed Nazir Gillani (PLD 2005 SC 806), it needs to be noted that the review filed against the above noted judgment was also dismissed and is reported as Syed Nazir Gillani v. Pakistan Red Crescent Society and another (2014 SCMR 982 also reported as 2014 PLC (C.S.) 961), Zia Ghafoor Piracha v. Chairman, Board of Intermediate and Secondary Education, Rawalpindi and others (2004 SCMR 35), Fidaullah v. Government of Khyber Pakhtunkhwa through Secretary Worker Welfare Board, Khyber Pakhtunkhwa, Peshawar and 6 others (2019 PLC (C.S.) 58), Hassan Jawed and another v. Punjab Education Foundation and 4 others (2018 PLC (C.S.) 580), Manzoor Ahmad v. Federation of Pakistan through Secretary , Ministry of Water and Power , Government of Pakistan and 4 others (2018 PLC (C. S.) 1224), Muhammad Naseer Khan v. General Manager (HR-Ops), Sui Northern Gas Pipelines Ltd., Lahore and 4 others (2013 PLC (C. S.) 698) and Brig. (R.) Sakhi Marjan, CEO, PESCO, Peshawar v . Managing Director PEPCO, Lahore and others (201 1 PLC (C. S.) 1007) .
It would not be out of place to note here that the Hon'ble Supreme Court of Pakistan in case reported as Muhammad Zaman and others v. Govern ment of Pakistan through Secretary , Finance Division (Regulation Wing), Islamabad and others (2017 SCMR 571), considered the question as to whether the State Bank of Pakistan Officers (Pension-cum-Gratuity) Regulations, 1980 were statutory or non-statutory , after the amendment in Section 54 of the State Bank of Pakistan Act, 1956, whereby the following words had been omitted in the year 1994, that is, "subject to the approval of the Federal Government", meaning thereby that the said Regulations did not require the approval of the Federal Government. The appellants therein had challenged the judgment passed by the Learned High Court, dismissing their writ petition in which their stance was that they were retired employees of the said Bank and were entitled to the same benefits which were applicable to the Federal Government employees of similar nature. Having heard the learned counsel for the parties, the Hon'ble Supreme Court Pakistan concluded that the said regulations were non-statuto ry for the reason that the regulation making power lies solely in the hands of the Board with no intervention or approval on the Federal Government was required and that this reflected the intention of the Legislature, with reference to the case reported as Shafique Ahmed Khan and others v. NESCOM through Chairman, Islamabad and others (PLD 2016 SC 377) wherein it was further held that "the test of whether rules/regulations are statutory or otherwise is not solely whether their framing requires the approval of the Federal Government or not, rather it is the nature and efficacy of such rules/regulations. It has to be seen whether the rules/regulations in question deal with instructions for internal control or management, or they are broader than and are complementary to the parent statute in matters of crucial importance. The former are non-statutory whereas the latter are statutory . In the case before us, the Regulations were made pursuant to section 54(1) of the Act and section 54(2) thereof goes on to provide the particular matters for which the Board can frame regulations [while saving the generality of power under section 54(1) of the Act]. Out of all the matters listed in section 54(2) of the Act, clause (j) is the most relevant which pertains to the "recruitment officers and servants of the Bank including the terms and conditions of their service, constitution of superannuation, beneficial and other funds, with or without bank's contribution, for the officers and servants of the Bank; their welfare; providing amenities, medical facilities, grant of loans and advances, their betterment and uplift". A perusal of the Registrations suggests that they relate to pension and gratuity matter of the employees of SBP and are therefore it can be said that the ambit of such Regulations is not broader but narrower than the parent statute, i.e. the Act. Thus the conclusion of the above discussion is that the Regulations are basically instructions for the internal control or management of SBP and are therefore non-statutory . Hence the appellants could not invoke the constitutional jurisdiction of the learned High Court which was correct in dismissing their writ petition."
29. However , the principles settled in the above noted judgments, obviously , subject to the facts and circumstances of each case and the law applicable thereto, are as follows:-
(i) Where conditions of service of employees were not regulated by a statutory provision then such employees were to be governed by the principle of master and servant and therefore Article 199 of the Constitution could not be invoked;
(ii) The test whether Rules/Regulations were statutory or otherwise, was not solely whether their framing required the approval of the government or not, rather it was the nature and efficacy of such rules/regulations and in such circumstances the Court had to see whether the rules/regulations dealt with instructions for internal control or management, in which case they would be non-statutory or they were broader than and were complimentary to the parent statute in matter of crucial importance, in which event they would be statutory;
(iii) A contract employee dismissed before expiry of period of service, his remedy is not to seek his reinstatement to serve for the left-over period of service and at best, he can claim damages to the extent of un-expired period of his service;
(iv) A contractual employee of a statutory organization cannot invoke constitution al jurisdiction of the High Court under Article 199 of the Constitution;
(v) Where the government while setting up a Corporation does not reserve to itself the power to regulate the terms of service of the Corporation's employees under the relevant statute and does not prescribe any condition, but leaves it to the discretion of the Corporation by empowering it to frame rules or regulations in respect thereof without the government's intervention, then the Corporation will be the sole arbiter in the matter of describing the terms and conditions of its employees and will be competent to deal with them in accordance with the terms and conditions prescribed by it. In such a case either a suit nor a writ petition for the relief of reinstatement will be competent and the remedy of an employee, for wrongful dismissal from or of termination of service will be a suit for damages as the principle of master and servant will be applicable;
(vi) Where the terms and conditions of service of an employee of a statutory corpor ation is regulated by a statute or statutory rules, any action prejudicial taken against him in derogation or in violation of the statute and/or the statutory rules will give him a cause of action to file a suit or a writ petition for the relief of reinstatement, as the power of the Corporation will be fettered with the statutory provisions and the principle of master and servant will not be applicable;
(vii) Employees of those organizations, which are discharging functions in connection with the affairs of the Federation or the Province, can invoke Article 199 of the Constitution, but subject to the condition that their services are protected under the statutory rules;
(viii) Where the employment/service(s) were not regulated by any law, but by non-statutory rules or contractual stipulations, and no specific forum was designated for the resolution of such service issues, an infringement of any condition of such a contract shall at the most entitle and clothe the employee to avail his ordinary remedy for the breach of contract and wrong action against him, before the court of plenary jurisdiction. In such a situation, it could not be argued that the fundamental right(s) of the employee had been violated conferring upon him a right to enforce the same in terms of Article 199 of the Constitution;
(ix) Violation of Service Rules or Regulations framed by the Statutory bodies under the powers derived from Statutes in absence of any adequate or ef ficacious remedy can be enforced through writ jurisdiction;
(x) Where conditions of service of employees of a statutory body are not regulated by Rules/Regulations framed under the Statute but only Rules or Instructions issued for its internal use, any violation thereof, cannot normally be enforced through writ jurisdiction and they would be governed by the principle of 'Master and Servant'; In all the public employments created by the Statutory 'bodies and governed by the Statutory Rules/Regulations and unless those appointments are purely contractual, the principles of natural justice cannot be dispensed with in disciplinary proceedings;
(xii) Where the action of a statutory authority in a service matter is ill disregard of the procedural requirements and is violative of the principle of natural justice, it can be interfered with in writ jurisdiction; and
(xiii) Although a Corporation may be performing functions in connection with the affairs of the Federation or a Province, but in the absence of statutory rules any adverse action taken by the employer was not amenable to the writ jurisdiction and in these circumstances the principle of master and servant would be applicable.
Keeping in view the above settled principles the writ petition filed by the respondent No.1 was clearly not maintainable, as the terms and conditions of his employment were governed by non-statutory rules.
30. Now turning to the question of lache s we find that the respondent No. 1 had accepted and acted upon his retirement order and in view of the same had approached NESP AK to obtain his retirement benefits, including but not limited to, his gratuity etc. However , after having done so, he filed the writ petition before the learned Single Bench after about five months, that is, on 06.9.2017, with the prayer to the effect that he be reinstated as Managing Director/Chief Executive Officer, NESP AK. His such conduct, was sufficient to dismiss the writ petition itself coupled with the fact that his terms and conditions of service were not only contractual but were also governed by non- statutory service Rules. As far as the question of laches is concerned we find that the arguments of learned Additional Attorney General for Federation of Pakistan are correct that the superio r courts of the country , have laid down 90 days as the time for approaching the Courts and not six months as held by the learned Single Bench. In reaching this conclusion, we are fortified by the law laid down in the cases reported as Civil Aviation Authority through Director General and 3 others v. Mir Zulfiqar Ali and another (2016 SCMR 183), Prof. Dr. Muhammad Iqbal Zafar v. The Province of Punjab through Secretary to the Government of the Punjab, Agriculture Department Lahore and 2 others (2019 PLC (C. S.) 63), Badar Munir v. Federation of Pakistan through Secretary Finance, Ministry of Finance and 2 others (2015 PLC (C. S.) 1528) , Ghulam Aulia v. Federation of Pakistan through Secretary and 2 others (2015 PLC (C. S.) 1149), Pakistan International Airline Corporation and others v. Tanveer - ur-Rehman and others (PLD 2010 SC 676), Member (S&R)/Chief Settlement Commissioner , Board of Revenue, Punjab, Lahore and another v. Syed Ashfaque Ali and others (PLD 2003 SC 132) and Manager Jammu and Kashmir , State Property in Pakistan v . Khuda Yar and another (PLD 1975 SC 678) .
The principles of law laid down in the above judgments are that if the petition suffered from laches, the same ought to have been dismissed, particularly when no justification or explanation for such delay had been given; employee after having acquiesced to be retired from service could not turn around and press his demand for retirement under a different scheme, as the petition suffered from laches; Courts have interpreted reasonable time to be 90 days when the question of laches is to be dealt with; and writ jurisdiction being discretionary and extra ordinary in nature which may not be invoked by a party who demonstrates a style of slackness and laxity on his part; furthermore, if a party does not choose legal remedy available under the statute strictly speaking constitutional jurisdiction of High Court cannot be exercised in his favour and that a party guilty of gross negligen ce and laches is not entitled to equitable relief as one who seeks equity must show that equity leans in his favour .
31. Learned counsel for the respondent No, 1 stated that he was not appointed under the NESP AK Chief Executive Service Rules, 1977 but had been appointed under the provisions of the Companies Ordinance, 1984 and his appointment was duly protected. under the provisions of Section 509 of the Companies Act, 2017. Accordingly , the government by issuing the impugned office order violated the statutory provision of the Companies Ordinance, 1984 therefore, the writ petition was maintainable.
32. Messrs Hafiz Tariq Nasim in rebuttal stated that the Respondent No, 1 is now changing his stance regarding his appointment. He added that the impugne d judgment clearly notes that terms and conditions of the service of the said respondent are governed by the NESP AK Chief Executive Service Rules, 1977. On the basis of the impugned judgment, when it was announced, on 28.6.2018, the said respondent immediately approached NESP AK through letter dated 28.6.2018 and asked that his pay (for the months that he had not worked) be given to him and by exerting his undue pressure he was able to obtain a sum of more than Rupees 14 Million from NESP AK in this regard. The learned counsel representing NESP AK pointed out that appropriate action is being taken to recover the said amount from the respondent No, 1 . He further added that the said provisions of the Companies Ordinance, 1984 do not mention or provide for the terms and conditions of employment of the said respondent No,1 and that the same are settled under the NESP AK Chief Executive Service Rules, 1977.
33. He further explained that the question of jurisdiction simply pertains to the issue that the matter is related to non-statutory rules. Accordingly , the writ petition itself was not maintainable, therefore, it was not open to the learned Single Bench to travel beyond this preliminary issue and moreover decide matters which were even otherwise beyond the pleadings of the said respondent No, 1.
31. He again drew the attention of the Court to the C.M. No,7 42018 filed by the appellant whereby a copy of the CPLA No, 1870-L of 2018 along with the order dated 20.8.2018 was placed on record, with the contention that the observation of the Hon'ble Supreme Court of Pakistan had been mentioned to the effect that the writ petition itself was not maintainable, then how could the respondent No,1 approach the Apex Court. He added that no reply has been filed by the respondent No,1 to the said C.M., and this shows that the respondent No, 1 has no answer to the question raised by the Hon'ble Supreme Court of Pakistan at that point in time and even now , before this Court.
35. Keeping in view the above noted contentions of the learned counsel for the parties, it is noted that the respondent No,1 did not place on record the complete terms and conditions of his employment. He did not show that his initial appointment in the year 2013 was made in accordance with the Public Sector Companies (Corporate Governance) Rules, 2013 or that his re-appointment was made in accordance with the said Rules, as well as, Public Sector Companies (Appointment of Chief Executive) Guidelines, 2015. The learned counsel for the respondent No,1 was unable to show that the Companies Ordinance, 1984 laid down the complete terms and conditions of his service/appointment. As noted above the conduct of responde nt No,1 clearly depicts that his service/ appointment was regulated under the rules framed by NESP AK, which is clearly a private limited company and therefore not listed. It is also important to note that the respondent No,1 in any case, is not remediless. In case he believes that he was wrongfully removed from his service or that his contractual appointment was unlawfully terminated, he has a right to claim damages, if so advised.
36. W e have also gone through the following case law relied upon by the learned counsel for respondent No,1:-
(i) Asad T .A. Khan v . Federation of Pakistan and others (2014 SCMR 320 )
In this case the appointment of respondent No, 1 had been challenged before the learned Islamabad High Court, Islamabad and interim relief had been refused. The matter was brought before the Hon'ble Supreme Court of Pakistan and after having heard the parties it decided not to interfere in the matter .
The same being a writ of quo warranto against the present respondent No,1, we note that this judgment is not relevant to the facts and circumstances of the present case.
I.C.I. Polyester Employees Union (C. B.A.) Registered v . Trustees Union and 2 others (2013 CLD 108 ); In this case the question before the Cour t was as to whether under Section 7 of the Companies Ordinance, 1984, High Court could exercise jurisdiction in all civil matters under the Companies Ordinance. Having heard the parties, it was held that wherever it was required under the Companies Ordinance, 1984 specific sections provided that the High Court shall adjudicate upon the same. It was further held that the petitioner should have filed its grievance before the Securities and Exchange Commission of Pakistan (SECP ), which was the competent authority to adjudicate upon irregularities and management of the provident fund under section 227 of the said Ordinance. It was further held that under section 7 of the said law, the High Court could not direct the SECP to carry out an investigation under section 227 and accordingly the petition was dismissed.
This case also does not substantiate any of the arguments submitted on behalf of the respondent No, 1 .
(iii) Syed Azhar Abbas Jafri v . HBFC W orkman Union of Pakistan and others (2017 PLC (C. S.) 1393).
In this case the question before the Court was the appointment of the Managing Director/Chief Executive Officer of the House Building. Finance Corporation Ltd., which was held to be against the law and it had been directed that the benefits derived by him should be recovered. The said person who had been ousted from the office challenged the judgment of the learned Single Bench through an intra court appeal. The learned Appellate Bench noted that the appellant, prior to his appointment as CEO had disclosed that he was a Singaporean national. Having heard the parties, the learned Division Bench set aside the direction in the impugned judgment relating to the recovery of the benefits derived by the appellant during the period he served as CEO of the said Corporation'.
Here it is important to note, that the instant case is also not relevant to the facts and circumstances of the present case. Perhaps it was relied upon for the purposes of saving the amounts received by the respondent No,1 after the announcement of the impugned judgment, from NESP AK. We have refrained ourselves to make any observation in this regard for the reason that the learne d Counsel for the NESP AK have informed us that necessary action, is being taken by NESP AK. Obviously , the matter will be dealt with in accordance with law .
(iv) Muhammad Idrish v . East Pakistan T imber Merchants Group and another (PLD 1968 SC 412 )
In this case, primarily the question before the Hon'ble Supreme Court of Pakistan was that if no remedy is provided under the provisions of Companies Act, 1913 for making the Registrar Joint Stock Companies discharge his duties properly , whether a writ petition can be maintained against him. The Hon'ble Supreme Court held that a writ can always be maintained against the said Registrar where he has not acted in accorda nce with law for the reason that Companies Act, 1913 being a sub-constitutional legislation, cannot and does not take away the jurisdiction of the High Court under the Constitution itself. The Hon'ble Supreme Court agreed with the learned High Court that it was not a case where its jurisdiction was ousted by section 3 of the said enactment or that it should not have interfered on the ground that the said law provided other adequate remedies.
We note that this case is clearly distinguis hable from the facts and circumstances of the present case and therefore does not support the contentions of the learned counsel for the respondent No, 1 .
We may also reiterate here that the principles for invoking the constitutional jurisdiction of the High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, in the facts and circumstances or the instant case, have been laid down by the Hon'ble Supreme Court of Pakistan in the judgments noted above.
(v) Engr . Ghazanfar Ali Khan and another v . F.O.P. and others (PLD 2014 Lahore 375 ).
In this case an advertisement issued by the Federal Government for recruitment of CEOs in two power distribution companies had been challenged on vario us grounds, including that the said posts had to be filled by promotion, therefore, outsiders could not compete for the same. During the course of hearing the learned court while considering the powers of the Federal Government concluded that the appointme nts in public sector companies are to be made in accordance with Public Sector Companies (Corporate Governance) Rules, 2013. Accordingly , it was directed that the process of selection of Chief Executives of the said power distribution companies by the Federal Government directly , without recommendation by their Boards was improper .
We note that reference to this judgment does not support the arguments of the learned counsel for the respondent No,1, particularly , when they have not thrown challenge to the new provisions of the Companies Act, 2017, whereby the Federal Government is now empowered to appoint the Chief Executives of such companies.
Moreover , as noted above the respondent No,1 himself failed to highlight that he was earlier , or even subsequently , appointed/re-appointed, after having followed the above noted Corporate Governance Rules/Guidelines.
37. We are also mindful of the law laid down by the Hon'ble Supreme Court of Pakistan in the case reported as Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Tokht Bhai and 10 others (PLD 1975 Sr: 244) but the instant case is clearly different as well as distinguishable, in view of its own peculiar facts and circumstances particularly keeping in view the conduct of the Respondent No,1 who had accepted the decision of his retirement and had acted upon it, as noted above and thereafter as an afterthought woke up from deep slumber after about five (5) months. It also needs to be noted that in the above noted case, the Hon'ble Supreme Court of Pakistan was dealing with the matter of a public limited company , where it found that the offices held by its Directors and its Chief Executive, which term would include a Managing Director , must be regarded as public offices in as much as they involve the performance of public duties which are of the greatest importance to the public interest in the field of the operation of public joint-stock companies, under the Company Law. Further , it was held that is also clear that, while acting under clause (2)(b)(ii) the High Court would only grant a declaration as to the authority of the Respondent to hold the office in question, but it could not grant a mandamus to restore or re- instate the Applicant to that office in case it comes to the conclusion that the incumbent had no authority to hold the same. The High Court would in such a case only declare the office to be vacant, leaving the rightful claimant, if any, to take whatever steps may be open to him to occupy the same."
38. Moreover , it is also noted that no such case was set up through the writ petition before the learned Single Bench and nothing in this respect has been said before us at the Bar. In view of this situation and for the reason that we are deciding the matter on the preliminary issues raised regarding the jurisdiction and maintainability of the petition itself, we deem it appropriate to leave the question regarding the status of NESP AK (Pvt.) Ltd. Company , to be performing functions in connection with the affairs of the Federation, or not, to be decided in some other appropriate case.
39. It is pertinent to note here that nothing has been said at the Bar on behalf of respondent No,1 regarding his conduct of having accepted his retiremen t order and the delay in filing the writ petition. This further shows that the said respondent No,1 had approached the Court with unclean hands and this fact itself suffices to prove that he was not entitled to the discretionary relief.
40. We must also note here that, when the Respondent No,1 instituted the writ petition and that too without disclosing that he had already acted upon and accepted his retirement order , by that time a lot of water had flowed under the bridge so much so that a new law, that is, the Companies Act, 2017 had been promulgated with new powers to appoint a chief executive by the government. Further , that the issue and settled law regarding the non- statutory nature of the rules also hindered the claim of the said respondent No. 1. Furthermore it has been held by the Hon'ble Supreme Court of Pakistan in the case reported as Messrs Airport Support Services v. The Airport Manager , Quid-e-Azam International Airport, Karachi and others (1998 SCMR 2268 ), while relying upon Nawab Syed Raunaq Ali's case (PLD 1973 SC 236) that the case remains unfit for extension of any relief on account of the appellant's own conduct as the jurisdiction under Article 199 of the Constitution being discretionary , the Court, where equities require, may, even in the best of cases, choose to decline interference. As noted above, the facts and circumstances of this case do not make it even close to such best of cases. We cannot thrust a contractual employee on an unwilling employer . However , as noted above, the respondent No,1 may approach the competent court to claim damages, if so advised.
41. A word must also be said about the disparity between the NESP AK Chief Executive Rules, 1977 and the practice of the company regarding the age of the MD/CEO . As is evident from the record, the Board of Directors of NESP AK approved the advertisement containing certain terms and conditions for the appointment of the new MD/CEO of the said private limited company , including his age. In the facts and circumstances of this case, we are confident that all the relevant considerati ons must have been taken into consideration before finalizing the same.
Keeping this in view, we would not like to interfere into the decision making proce ss of the said Board. Secondly , this particular aspect of this decision of the Board has not been challenged before us. Obviously , the Board will remain watchful of the performance of the new MD/CEO , in the best interest of NESP AK.
42. For the foregoing reasons, the intra-court appeals are allowed and consequently the writ petition filed by the respondent No,1 is dismissed . revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.