1. MANZOOR HUSSAIN SIAL, J.--Miflat Tractors Employees Trust and two other petitioners, by means of this Constitutional petition, seek direction to respondents Nos.1 to 3 not to transfer the managing and controlling shares of the Millat Tractors Ltd (hereinafter referred to as the Company) to any person, party or group, other than petitioner No.1 and to invite petitioner No.1 for negotiation on the highest bid in terms of the memorandum of agreement dated 15-10-1991 executed between the aforesaid respondents and petitioner No.2 as also to treat the bid offered by petitioner No.1 as the only bid entitled to benefits accruable under the afore-mentioned agreement.
2. 2.Pursuant to public advertisement appeared in the Press on behalf of the Privatisation Commission, Government of Pakistan, Islamabad invited bids from interested individuals/groups, companies, corporations and firms in the private sector for purchase of 51% shares/net assets along with transfer of management. Petitioner No.1 representing employees of the Company and respondent No.4 representing another group of the employees of the Company participated in the bid apart from other bidders. Respondent No.4 offered the highest bid at Rs.107.86 per share of Rs.10 each whereas the petitioner No.1 offered bid @ Rs.77 per share. The bid offered by respondent No.4 being the highest was accepted on 24-10-1991 through a letter of acceptance issued by the Federal Government. Petitioner No.1 with the support of other two petitioners claimed to be the sole representative of the employees of the Company and had a right to negotiate on the highest bid offered by respondent No.4 on the basis of memorandum of agreement dated 15-10-1991 reached between respondents Nos.1 to 3 and petitioner No.2.
3. 3.Learned counsel for the petitioners vehemently contended that the Federal Government cannot wriggle out of the terms of the agreement referred to above, whereby it was settled that in case of buy out of the State Enterprises, negotiation thereof will be facilitated in consultation with petitioner No.2 as also that the employees of the State Enterprises win have a right of negotiation on the highest bid. It was submitted that the bid offered by petitioner No.1 merited acceptance or in any case had a right to negotiate on the highest bid offered by respondent No.4.
4. 4.In compliance with order passed by this Court on 27-10-1991 respondents have filed their written statements to this petition. The case is still in motion. Learned counsel for respondents have also entered appearance and we have heard them as well at this stage.
5. 5.Learned counsel for respondent No.4 controverted the factum of petitioner No.1 to be the sole representative of the employees of the Company. On the contrary he maintained that respondent No.4 had the consent and mandate of more than 50% of the employees to participate in the bid for the purchase of 51% shares/net assets of the Company. It was contended that the petitioner No.1 having participated in the bid and made offer for the pitrchase of 51% shares of the Company is estopped from challenging the terms and conditions thereoL It was also submited that this petition is liable to dismissal involving determination of the disputed questions of fact and calling for enforcement of contratual obligation through it. It was argued that petitioner No.1 cannot claim even on the basis of the agreement referred to above negotiation if the highest bid is offered by another group of the employees of the Company. It was next contended that the memorandum of agreement is of no legal consequence as much as it is not binding on large number of the employees of the Company represented by respondent No.4 6.Learned counsel appearing on behalf of the respondents Nos.1 to 3 also challenged the maintainbility of the Constitutional petition. He argued that petitioner No.1, raised no objection and participated in the bid along with other bidders. The bids were thoroughly examined. The highest offer made by respondent No.4 for the purchase of a share @ Rs.107.86 was -accepted for reasons highlighted in para.3 of the comments whereas the bid offered by petitioner No.1 was rcjected being lower than the offers made by several other bidders. Petitioner No.1 participated in the bid being fully aware of the terms and conditions thereof, incJuding the stipulation to the effect, that the Commission retained right to reject atty offer without assigning any reason therefor. A concession, however, was notified to the previous owners/management of the Company for having a right of first refusal at the highest bid, provided that the previous owners participated in the bidding and the employees of the Company did not offer the highest bid. It submitted that package 'C' of thef Memorandum of agreement clearly provided that only in case of "Employees buy-out", negotiation will be facilitated in consultation with the Supreme Council of all Pakistan State Enterprises Workers Action Committee (Petitioner No.2), but not when the shares/assets of the Company were sold through auction. He stated that in the present case, the transaction was not Employees buy-our but through bidding, therefore, question of consultation with petitioner No.2 did not arise. He also pointed out that neither petitioner No.1 nor respondent No A could claim, right of negotiation on the highest bid being representatives of two different groups of the employees of the same Company.
6. At this stage, learned counsel for petitioners stated that if respondents Nos.1 to 3 are allowed to give effect to The bid offered by respondent No.4, the management of the Company will pass on to the minority group of the employees as against the majority of the employees. Learned counsel appearing on. Behalf of respondent No.4 joined the issue and stated that respondent No.4 undertakes to offer purchase of the shares to all the employees of the Company at the same rate without any discrimination what--soever. In this way on the first general meeting of the Company the management will be regulated under the relevant provisions of the Companies Ordinance, 1984 and shall be transferred to those holding majority of shares in the Company.
7. 7.In order to appreciate the contentions raised by learned counsel for the parties, it will be useful to refer to and reproduce hereunder relevant provisions of the Constitution of the Islamic Republic of Pakistan, President's Order and terms of the Memorandum of Agreement respectively.
8. "POWER TO ACQUIRE PROPERTY AND TO MAKE CONTRACTS. FTC, Article 173(l)--The executive authority of the Federation and of a Province shall extend, subject to any Act of the appropriate Legislature, to the grant, sale, disposition or mortage of any property vested in, and to purchase or acquisition of property on bellnlf 'of, the Federal Government or, as the case may be, the Provincial Government, and to the making of contracts.
9. 2.xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx XxX xxx Xxx xxx 3.xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx XxX xxx Xxx xxx 4.xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx 5.xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx XxX xxx Xxx xxx Article 4 of President's Order XII of 1978 as substituted by Ordinance 4.TRANSFER OF SHARES AND PROPRIETARY INTERESTS ETC (1)If the Federal Government considers it necessary in the public interest to transfer the shares or proprietary interests in respect of a managed establishment acquired by it under Article 7-B of the said Order, the Federal Government may, through a public advertisement, invite bids for the transfer of the shares or proprietary interests.
10. (2)On receipt of bids in pursuance of an invitation under clause (1), the Federal Government shall offer the transfer of the shares or proprietary interests to the persons specified in the Schedule on the highest bid so received and on such terms and conditions as it may them fit: Provided that it shall not be necessary to make such an offer to the persons specified in the Schedule in case the highest bid has been made by the employees of the managed establishment."
11. Memorandum of Agreement dated 15-10-1"1.
PACKAGE'
12. (1)in case of employees buy-out, negotiations will be facilitated in consultation with the Supreme Council of All Pakistan State Enterprises Worker Action Committee.
13. (2)Employees will be provided all opportunities to purchase a unit if they make a bid. They will also have right of negotiations on the highest bid.
14. (3)All bids made by the employees will have to be competitive and in accordance with the bid documents.
15. (4)Employees will be given concessions through negotiations if they are declared successful bidders.
16. (5)xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx (6)xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx (7)xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx (8)xxx X'xx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx (9)xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx
(10) xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx
(11) xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx The perusal of the relevant provision of the Constitution shows that the Federal Government is empowered to sell or to dispose of any property A vested in it and to purchase or acquire the property on behalf of the Federal Government.
17. Similarly, Article 4 of the President's Order No XII of 1978 confers authority on the Federal Government, to transfer the shares or proprietary interests in respect of the State managed establishments by inviting bids through public advertisement and on receipt thereof a right of first refusal on the highest bid conferred on the persons specified in the Schedule (previous owners) but such offer would not be made to them if the highest bid was made by the employees of the Government managed establishment.
18. The relevant extract of the terms of the Memorandum of Agreement from package 'C' envisages that in case of transfer of the State managed enterprises through the "employees buy-out" negotiations will be facilitated in consultation with the, Supreme Council of All Pakistan State Enterprises Workers Action Committee but where the shares/assets of the State managed units are sold through auction the employees will have a right of negotiation on the highest bid only if their bid is competitive and in accordance with the bid document. The agreement visualised a bid by employees of the State managed unit as against an outsider bidder for conferring a right of negotiation on the highest bid offered by the latter and not where bids are offered by different groups of the employees of the same unit, to claim right of negotiation on the highest bid offered by one group of employees, much less an unsuccessful bidder representing one set of employees claiming right of negotiation on the highest bid offered by another set of employees. Even otherwise petitioner No.1 being an unsuccessful bidder, is not an aggrieved person within the meaning of Article 199 of the Constitution so as to maintain this petition. Moreso when the Federal Government retained a right to accept or reject the offer made by the bidders and accepted the highest bid offered by respondent No, 4 for reasons mentioned in para 3 of the comments filed by the respondents Nos.1 to 3.
19. In our estimation, the agreement is no doubt enuring for the benefit of the employees of the State managed enterprises sought to be sold to private sector in implementation of the privatisation scheme of the Government but it did not form part of the bid documents and thus cannot bind respondent No.4 or for that matter any other bidder being neither privy nor party thereto. It is also well-settled that contractual obligation cannot be enforced through writ D jurisdiction. We have also taken notice of the undertaking given by respondent No.4 to offer the sale of shares to all employees of the Company at the same rate as also the relevant provisions of the Companies Ordinance, 1984 which amply take care of the apprehension ventilated by the petitioners that if the sale of the shares/assets of the Company is allowed in favour of respondent No. 4 the minority group will for ever manage and control the affairs of the Company detrimental to the interest of the majority of shareholders.
20. I The petitioners before us did not assail the vires of the relevant law referred to above empowering the Federal Government to dispose of the State managed industrial units; on our consideration thereof, we find no legal flaw in the provisions of the Statut6 authorising the Federal Government to sell those units by open public auction, through advertisement in the Press to highest bidder, with reserving a right of refusal on the highest bid to the previous owner, if he participates in the bidding and the highest bid was not made by the employees of the unit.
21. Admittedly petitioner No.1 and respondent No.4 represented different groups of the employees of the Company but they are at variance on the facturn of number of employees, represented by them. The question as to who represents the majority of the employees being disputed question of fact the determination whereof, cannot be undertaken in writ jurisdiction.
22. In the result this petition fails and is, therefore, dismissed.