1. ' NASIM HASAN SHAH, J.---The facts, which form the background to this petition according to the petitioner, are as follows:-- ' The petitioner i,e, Progressive Group of Workers of Suraj Ghee Industries Ltd., Sheikhupura, was formed by the employees of the Suraj Ghee Industries Ltd., Sheikhupura, a company of Ghee Corporation of Pakistan, in view of the declared policy of the Government of Pakistan for purchase of 51% shares of that industrial unit and for transfer of its management. The Privatization Commission, Government of Pakistan, (respondent No,2 herein) advertised in the national press for the sale of State-owned Enterprises through purchase and in this behalf an advertisement was published in the Daily Jang in its issue dated 14-10-1991.
2. ' On the date and time fixed for filing the bids on the 17th of October, 1991 at 11-00 a.m. The petitioner and others filed their respective bids at a rate per share. The bids were opened in the presence of the parties and the bid of the petitioner was the highest. It is admitted by the petitioner that under para.9 of the Instructions to bidders the bid was to be accompanied with a sum of Rs,10 lacs as earnest money. But it is explained that this could not be done due to not only shortage of time but also to a misunderstanding caused by the terms of the agreement between the Inter-Ministerial Committee appointed by the Prime Minister and All Pakistan State Enterprises Workers Action Committee representing the employees of the State-owned Industrial Units and Corporations being privatized concluded on 15-10-1991 wherein under clauses 5 and 6 of the Package "C" the agreement, gratuity and Provident Funds could be utilised for bidding purposes. The petitioner, therefore, submitted a letter alongwith the financial status of the Group authorizing the Privatization Commission to adjust the earnest money from the Provident Fund and Gratuity of the Workers through their Trustees, which amount came to Rs,1,45,00,000 and Rs,1,58,00,000 respectively. However, notwithstanding the above the petitioners on 20-10-1991, that is only three days later, requested for deposit of Rs,10 lacs as earnest money whereupon the Federal Minister for Labour and Manpower who had headed the aforesaid Inter-Ministerial Committee was allowed to deposit the earnest money whereupon the petitioner vide letter dated 28-10-1991 deposited two bank drafts for Rs,4 lacs and 6 lacs respectively. No action was taken on the bid for a considerable period. However, on 20-4-1992, the Privatisation Commission issued two letters to the petitioner asking him to file a list of 150 employees to enable the Commission to issue letter of Intent in their favour. The petitioner, accordingly, filed a list of 153 workers with its letter dated 27-4-1992. But instead of accepting the bid of the petitioner, the Privatization Commission being bent upon selling the factory to Trade Line through Muhammad Aslam Mirza, respondent No,4 herein who is one of the Ex-owners, by keeping the petitioner in the dark that letter of Intent was being issued to him and he had been asked to agree to enhance his bid to Rs,85.10 per share i,e, in excess by 10 paisas of the bid of the petitioner.
3. ' In these circumstances, the petitioner was constrained to invoke the Constitutional jurisdiction of the Lahore High Court, by way of filing Writ Petition No,6478 of 1992, for a direction to respondents Nos.1 to 3 to "issue letter of Intent and" and to sell the industrial unit and transfer its control and management in favour of the petitioner and not of any other person or party/group including respondent No,4 herein.
4. ' The writ petition was dismissed in limine by order dated 15-7-1992 by a Division Bench of the Lahore High Court solely on the ground that the bid offer made by the petitioner was not accompanied with earnest money required by Condition No,9.1 of the bid documents. Hence, this petition for leave to appeal.
5. ' Mr. K.M.A. Samdani, learned counsel for the petitioner, has drawn our attention to the minutes of the Privatisation Commission to show that despite the late submission of the earnest money by the petitioner it was decided to continue negotiations with him. Hence the High Court had erred in dismissing the writ petition on the assumption that as the petitioner had not fulfilled one of the important terms included in the instructions to the bidders, the bid was rightly rejected.
6. ' The learned counsel further submitted that according to the Memorandum of Agreement between the representative of the Government of Pakistan and the All Pakistan State Enterprises Workers Action Committee representing the employees of the State-owned industrial units and corporations being privatised it was agreed that "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". The submission, in short, is that the aforesaid assurance held out to the workers was disregarded in this case.
7. ' Mr.Muhammad Akram Sheikh, learned counsel for the Privatization Commission (respondent No,2 herein) drew our attention to the Hydrogenated Vegetable Oil Industry (Control and Development)
8. (Amendment) Ordinance, 1991 (Ordinance XXXV of 1991) whereby in the Hydrogenated Vegetable Oil Industry (Control and Development) Act, 1973 after section 5, the following ection was inserted:- - 5-A. 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 section 5, the Federal Government may, through a public advertisement, invite bids for the transfer of the shares or proprietary interests.
(2) On receipt of bids in pursuance of an invitation under subsection (1), the Federal Government shall offer the transfer of the shares or proprietary interests to the previous management of such establishment, on The highest bid so received and on such terms and conditions as it may deem fit:-- Provided that it shall not be necessary to make such an offer to the previous management in case the highest bid has been made by the management group of the employees of such establishment.
9. (3)
10. (4)
11. ' However, when this Ordinance was subsequently enacted as an Act of Parliament the proviso to section 2 was omitted and the provision, as enacted, reads as follows: "5-A. 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 section 5, the Federal Government may, through a public advertisement, invite bids for the transfer of the shares or proprietary interests.
(2) On receipt of bids in pursuance of an invitation under subsection (1), the Federal Government shall offer the shares or proprietary interests to the previous management of such establishment on the highest bid so received and on such terms and conditions as it may deem fit."
12. ' However, on 27-4-1992, section Sea was further amended through Ordinance VII of 1991 whereby the proviso to subsection (2) was again revived, but in a modified form, as follows: "Provided that it shall not be necessary to make such an offer to the previous management in case the highest bid has been made by the management group of the employees of such establishment.
13. ' Explanation.-In this subsection and in subsection (4) "management group of the employees" means such management group of the employees as has, in the opinion of the Federal Government, been formally constituted as such."
14. ' Thus, according to section 5-A, the previous management of the Establishment was to be afforded an opportunity to take the concern on the highest bid so received but after the amendment made through Ordinance (VII of 1992) it was provided that it shall not be necessary to make such an offer to the previous management in case the highest bid had been made by the management group of such establishment. Thus, this amendment would appear to strengthen the case of the petitioner. However, it was pointed out by Mr. Muhammad Akram Sheikh that the "Explanation" to the proviso by Ordinance. VII of 1992 whereby the expression "management group of employees" has been explained to mean such management group of employees as in the opinion of the Federal Government being formally constituted as such, destroys their case.
15. ' In this connection, it is pointed out that the C.BA. Supports the case of the ex-management namely respondent No,4 herein and that furthermore out of the list of 150 workers which was supplied by the petitioner to be members of the petitioner's Workers Union about 70. Of the said workers later sent telegrams to the authorities disassociating themselves from the petitioner's group. Accordingly, the condition laid down in the proviso that the employees group should be so constituted as to convince the Federal Government that it is t formally constituted group was not satisfied by the petitioner. In this situation Mr. K.MA. Samdani argued that when the bid was made on 1740-1991 the matter had to be decided in accordance with the terms of the. Memorandum of Agreement referred to above wherein it was enjoined that the employees were to be provided all opportunities to purchase the unit if they made a bid.
16. We are afraid that this plea is of no avail. In addition to the fact that the right given to the employees by this Memorandum is of a very general nature, even otherwise, during the negotiations that ensued in connection with the consideration of the bid the law underwent a change and the statutory provision which existed on the date of the final decision was that the management could be given only to that group of employees which was recognised by the Federal Government to have been formally constituted as such. In the circumstances when nearly 50% of the members of the petitioner group had disassociated themselves from the petitioner and even the recognised representative of the workers namely C.BA was not supporting their bid, no fault can be found with the decision of respondent No,2 deciding in favour of the ex-management (respondent No,4) whose bid was ultimately higher than that submitted by the petitioner.
17. ' In the end, Mr. K.MA. Samdani tried to argue that the law as it obtained on the date of the bid i,e, 17-10-1991 governed the cause and the amendments made thereafter by the insertion of section 5- A in the Act did not affect the rights of the parties. This argument cannot be accepted. A similar question was considered by this Court in Mian Rafi-ud-Din and 6 others v. The Chief Settlement and Rehabilitation Commissioner and 2 others PLD 1991 SC 252 and a plea similar to one being raised before us today was found to be untenable.
18. ' The result is that this petition cannot succeed.
19. ' However, we may observe that learned counsel for respondent No,4 gave us an undertaking that in case the members of the petitioner group were given a "golden hand shake" or their service otherwise dispensed with, all benefits and privileges eligible to the employees under terms of the Package Nos.(a) & (b) of the Memorandum shall be extended to them notwithstanding that they may not have opted so far to avail such benefits, for any reason. This assurance we duly note.
20. ' The upshot is that this petition is dismissed subject to the above observations.