SULTAN TANVIR AHMAD, J. The petitioner is aggrieved from (i) order dated 16.06.2014 passed by HR and Admn Director FESCO/respondent No. 4 in pursuance of decision of Board of Directors of Faisalabad Electric Supply Company (FESCO), taken in its 124th/12th meeting held on 31.05.2014 and
(ii) proceedings/agenda of Board of Directors of FESCO meeting scheduled on 26.07.2023.
2. Mr. Ahsan Bhoon, learned Senior-ASC submitted that Abid Rasheed/respondent No. 5 was transferred from Multan Electric Supply Company (MEPCO) to FESCO, when vide office order dated 28.02.2009 he was placed at the bottom of the seniority list of officers of his cadre as per transfer policy of Pakistan Electric Power Company (Pvt.) Limited (PEPCO); that through decision dated 16.06.2014 Board of Directors of FESCO in utter bad faith fixed the seniority of respondent No. 5 with effect from his original date of joining in MEPCO i.e. 29.11.2001. It is further submitted by the learned counsel for the petitioner that since then everyone is kept in dark; that this decision was not properly circulated, thus, the petitioner who joined service in the year 2003 is senior to the said respondent. In order to show maintainability of this petition, learned counsel for the petitioner has relied upon "Muhammad Shoaib Roomi vs Secretary/Additional Secretary, Education Department, Government of Punjab and others" (2005 SCMR 605) as well as "National Database and Registration Authority (NADRA), through Chairman, Islamabad and others v. Jawad Khan and 2 others" (2023 SCMR 1381) and he has stated that normally Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the 'Constitution') cannot be invoked in the absence of statutory rules but the same is subject to exceptions of violation of principles of natural justice, lack of opportunity of hearing, mala fide, violation of rules, obliteration of legitimate expectancy and violation of doctrine of Promissory Estoppel.
3. Conversely, Banister Ahmad Pansota and Banister Ch. Saeed Nagra, learned counsel for respondents Nos. 1, 2 and 5 have contended that present petition under Article 199 of the Constitution is not maintainable; that case of the petitioner is at par with the individuals involved in the cases "Muhammad Shahzad Raza v. FESCO and others" (Writ Petitions No. 22990 of 2012) as well as Writ Petition No. 39841 of 2020 titled "Shafiq-Ul-Hassan v. Federation of Pakistan and others" (2020 PLC (C.S.) 1593), which are already dismissed by this Court being not maintainable.
4. Mr. Aurangzeb Mirza, learned counsel for respondent No. 1 and Mian Muhammad Javaid, learned counsel for respondents Nos. 3 and 4 have submitted that FESCO is private limited company and matter being part of terms and conditions falls under the principle of 'master-servant'. It is further submitted that the present petition has been filed just to blackmail the respondents as well as to pressurize them, therefore, the same is not maintainable. Learned counsel for respondents Nos. 4 and 5 has also argued as to the principles of laches and they have stated that cause giving rise to the grievance of the petitioner pertains to the year 2014, which is being agitated after lapse of eight years.
5. Heard. Available documents have been perused with the able assistance of learned counsel for the parties.
6. In order to establish the maintainability of the petition, Mr. Ahsan Bhoon learned Senior-ASC has mainly relied upon case titled "National Database and Registration Authority (NADRA) through Chairman, Islamabad and others" (supra). However, the facts and circumstances of the said case are distinguishable from the present case. The petition under Article 199 of the Constitution in the said case, was held maintainable against a statutory authority/organization when without any rhyme or reason, proper recruitment process was disregarded.
7. In case titled "Pakistan Electric Power Company v. Syed Salahuddin and others" (2022 SCMR 991) direction against the action of placing the appellant of the said case after his juniors, was sought. The Supreme Court of Pakistan ruled that the respondents by own choice joined a private limited company, having separate legal entity, therefore, the High Court lacks jurisdiction in the matters of employment disputes. The relevant extract reads as follows:- "10...A specific objection regarding jurisdiction of the High Court to entertain the petition was raised which was dealt with in the following manner: ."The petitioners being employees of QESCO/PEPCO are governed by statutory rules and as such the constitutional petition filed by the Respondent under Article 199, of the Constitution of Islamic Republic of Pakistan, 1973 is maintainable."
We find that in the first place, there was no ground to hold that the Respondents were governed by the statutory rules. Admittedly, the Respondents by their own choice had joined QESCO which is a distinct and separate legal entity having been incorporated in the erstwhile Companies Ordinance, 1984 and has its own Board of Directors. Just by reason for the fact that QESCO had adopted existing rules of WAPDA for QESCO. It was clearly and categorically held by this Court in Pakistan Defence Officers Housing Authority (ibid), Pakistan Telecommunication Company Ltd. through its Chairman v. Iqbal Nasir and others (PLD 2011 SC 132) as well as Pakistan International Airlines Corporation and others v. Tanveer ur Rehman and others (PLD 2010 SC 676) that where conditions of service of employees of a statutory body are not regulated by rules/regulations framed under the Statute but only by rules or instructions issued for its internal use, any violation thereof could not normally be enforced through constitutional jurisdiction and they would be governed by the principle of "master and servant". The learned High Court appears to have not been assisted properly in the matter and therefore omitted to notice the said principle of law laid down in the aforenoted case and reiterated repeatedly in a number of subsequent judgments of this Court..."
(Emphasis supplied)
In case titled "National Engineering Services Pakistan (NESPAK) and 2 others v. Muhammad Nawaz Cheema and 13 others" (2023 PLC (C.S.) 785) a learned Division Bench of this Court has also drawn distinction between statutory bodies or corporation and limited companies, having separate legal status. In "Sui Southern Gas Company Limited and others v. Saeed Ahmed Khoso and another" (2022 SCMR 1256), similar question regarding the maintainability of the petition against a company in which the State has major shares has been addressed as under:- "5. We have heard the learned counsel for the parties and gone through the record. The only question requiring determination by this Court is whether or not the High Court correctly exercised its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. It is settled law by this Court that where employment rules are non-statutory in nature, the relationship of employer and employee is governed by the principle of master and servant. The learned ASC for the Respondent does not contest, neither that the rules governing terms and conditions of employment of the Respondent are non-statutory nor that ordinarily the principle of master and servant would apply in governing the relationship-between the employer and the employee.
However, he has attempted to draw a distinction between the Companies owned by the Federal Government and the Companies registered under the Companies Ordinance, 1984/Act, 2017 which have private shareholders to argue that where the State has a stake in the Company then it has to be treated on a different footing and its rules are to be treated as statutory in nature. In this context, he has relied upon: Judgments of this Court reported as Muhammad Ashraf Tiwana v.
Federation of Pakistan (2013 SCMR 1159), Muhammad Rafi v. Federation of Pakistan (2016 SCMR 2146) and Pakistan Defence Officers Housing Authority v. Itrat Sajjad Awan (2017 SCMR 2010).
6. Having gone through the aforenoted judgments, we find that the said judgments relate to the Securities and Exchange Commission of Pakistan, the Civil Aviation Authority and the Defence Housing Authority. There is a clear distinction in the treatment of statutory Bodies and the Corporations as opposed to the limited companies. Consequently, we are not impressed by the argument of learned counsel for the Respondent that a Company in which the Government has a shareholding is to be treated at par with statutory Corporations and Authorities."
(Emphasis supplied)
8. The reliance of learned counsel for FESCO on the decision of this Court in case titled "Muhammad Shahzad Raza (supra), is not misplaced, either, wherein following is observed:- "4. It is trite that no writ can be issued where a body does not have statutory rules as has been held by the august Supreme Court of Pakistan in PIA v. Tanveer ur Rehman (PLD 2010 SC 676). Where a body does not have statutory rules the doctrine of 'master, and servant' would fairly and squarely be applicable."
9. Mr. Ahsan Bhoon, learned Senior-ASC has then relied on the State-Owned Enterprises (Governance and Operations) Act, 2023 (the 'Act'). The learned counsel for the petitioner has pleaded violation of some provisions of the Act. The basic decision that is claimed to be violative of rights of the petitioner, was passed on 16.06.2014. The Act received assent of the President on the 30th January, 2023 and came into force at once. The Honourable Supreme Court of Pakistan in case titled "Messrs Khurshid Soap and Chemical Industries (Pvt.) Ltd. through Sheikh Muhammad Illyas and others v. Federation of Pakistan through Ministry of Petroleum and Natural Resources and others" (PLD 2020 Supreme Court 641) has already decided that when an Act of Parliament provides that it will come into force at once then every provision of it becomes enforceable from the day the Act receives the assent of the President unless any provision of the Act provides otherwise. The claim of the applicability of the Act to the decision taken by the Board of Directors on 16.06.2014 or retrospective effect of the Act, even otherwise, is negated by section 36 of the Act.
10. For the foregoing reasons, the present petition is dismissed, being not maintainable. No order as to costs.