1. NAZIM HUSSAIN SIDDIQUI, J.---This judgment will dispose of Constitution Petitions Nos. 756 of 1993, 138 of 1994 and 2326 of 1994. In these petitions, common question of law and facts are involved. The facts necessary for disposal of these petitions are as follows:--- In Petition No, 138 of 1994 Nayadaur Motors Officers Association and their President and General Secretary namely, Shabbir Asghar, and Muhammad Akmal Khan respectively, have challenged the privatization of respondent No,4 (NAYADAUR MOTORS) and the transfer of its share to the respondents Nos. 5 to 7 namely, Fareed Tawakkal, Farooq Tawakkal, and Javed Hussain. It is their case that the transfer of the respondent No,4 to above-named respondents is illegal and of no legal consequence. Further, the petitioners have prayed to declare that the respondents Nos. 5 to 8 have no legal authority to terminate the services of the Officers of respondent No,4 or take any other decision which may ultimately affect their conditions of employment prior to privatization. In the alternative, the petitioners have prayed to declare that the officers of respondent No,4 are entitled to the benefit under package 'Bof the memorandum of agreement dated 15-10-1991, which was arrived at between the three Federal Ministers, the Chairman of the Privatization Commission, and the representatives of the employees of the State-owned Industries. It is said that in the year 1973 the respondent No,4 was primarily engaged in assembling four wheel drive automobile and was functioning under the name "Kandawala Industries Ltd." Consequent upon enforcement of President Order No,1 of 1972, Economic Reform Order 1972, the management of respondent No,4 was taken over by the Central Government. In the year 1973, by virtue of an Act No,LXIV of 1973, Economic Reform (Amendment) Act, 1973, the controlling shares of the previous owners were acquired by the Government and transferred to respondent No,3 Pakistan Automobile Corporation Ltd. On the ground that development of the industry was necessary and it was in the public interest. In the year 1978, President Order No,12 Transfer of Managed Establishment Order 1978, was promulgated, which empowered the Federal Government to transfer the shares of the proprietary interest in respect of managed establishment to the previous owners on the terms set out in the Schedule of this Order. By virtue of Act No,XXII; of 1991, Transfer of Managed Establishment (Amendment) Act, 1991, the Federal Government was empowered, through public advertisement, to invite bids for the transfer of shares and proprietary interest of the managed establishment. In 1992, Protection of Economic Reform Act No,XII of 1992 was passed, which provided protection for transfer of ownership to the private sector. The petitioners have asserted that decision to privatize a large number of industrial concerns operating in the State sector was without concurrence of the Council of Common Interests, as such, the whole privatization was in violation of the Constitution. A legal objection was taken by the respondents about the maintainability of the petition on the grounds, amongst others, that the trade union was not entitled to file petition as no right possessed by it was violated. Thereafter, officers of the respondent No,4, filed Petition No,2326 of 1994 on the same grounds and for the same reliefs.
2. In Petition No,756 of 1993 the petitioners are officers of respondent No,4 (M/s. Metropolitan Steel Corporation). They have sought declaration to the effect that Federal Government could not take policy decision in respect of affairs of respondent No,4, unless such direction was issued by the Council of Common Interests and on this ground they have challenged the privatization. They have sought declaration to the effect that section 4 of Act No,XXII of 1991 in so far as and to the extent it makes in-applicable to the provisions of Article 10 of President Order No,12 of 1978 to the establishment covered by clauses (2) and (3) of said Article, are ultra vires of the Constitution being in violation of fundamental rights under Articles 14 and 18 of the Constitution. Petitioners have also prayed that in the alternative they are also entitled to Golden Handshake Scheme.
3. It is also the case of the petitioners that the unit, in which they were employed, was sold illegally in pursuance to a Privatization Policy to a private party, which has not been joined as respondent in this petition, by the petitioners. It is alleged that the officers working in the Head Office of respondent No,3 (Estate Engineering Corporation, Islamabad) have been given the benefit of Golden Handshake Scheme, while officers working in the units, like the petitioners, the said benefit has not been extended to them, although their services are inter-transferable.
4. The case of the respondents in C.P.No,D-138 of 1994 and 2326 of 1994 is that the relationship between the parties is that of master and servant and any alleged violation of service rules, or contractual obligations, cannot be challenged in the Constitution petition. It is alleged that even before the Privatization the petitioners were governed by the laws of master and servant as they continued to be the employees of a private limited company; according to the respondents, though some employment rules were borrowed and made applicable to the petitioners for good management, yet, they continued to be the employees of a private company and were governed as such. Further, it is said that the sale agreement was executed on 12-1-1993 and, in pursuance thereof, the management and control of the Company was handed ever to the concerned respondents.
5. The case of the respondents in C.P. No,736 of 1993 is that the respondent No,3 (Estate Engineering Corporation Limited), Islamabad does not have statutory rules of service, as such, the petitioners are not entitled to invoke the writ jurisdiction. According to them, like other above two petitions, the relationship between the parties is that of master and servant and on that ground the writ does not lie for alleged violation of obligations, if any. They have claimed that the terms and conditions of service of the petitioners were governed by the rules framed by the private company.
6. Mr. Sabihuddin Ahmad learned counsel for the petitioners contended that Privatization of the respondent No,4 and handing over of absolute power of management and control to the concerned respondents is invalid ultra vires, particularly for the reason that the legislatures had already declared the development of certain type of industries in the State sector as expedient in the Public interest and has also enacted law in terms of Article 253 of the Constitution. Learned counsel also argued that since the subject industries were included in Legislative List, Part II of Fourth Schedule the privatization could not be done without approval of Council of Common Interests (CCI). The Articles 153 and 154 of the Constitution speak about CCI which are as follows: Article 153:
(1) There shall be a Council of Common Interests, in this Chapter referred to as the Council, to be appointed by the President.
(2) The members of the Council shall be--
(a) the Chief Ministers of the Provinces, and
(b) an equal number of members from the Federal Government to be nominated by the Prime Minister from time to time.
(3) The Prime Minister, if he is a member of the Council, shall be the Chairman of the Council but, if at any time he is not a member, the President may nominate a Federal Minister who is a member of the Council to be its Chairman.
(4) The Council shall be responsible to (Majlis-e-Shoora (Parliament)).
7. Article 154:
(1) The Council shall formulate and regulate policies in relation to matters in Part II of the Federal Legislative List and, in so. Far as it is in relation to the affairs of the Federation, the matter in entry 34 (electricity) in the Concurrent Legislative List, and shall exercise supervision and control over related institutions,
(2) The decisions of the Council shall be expressed in terms of the opinion of the majority.
(3) Until (Majlis-e-Shoora (Parliament)) makes provision by law in this behalf, the Council may make its rules of procedure.
(4) Majlis-e-Shoora (Parliament) in joint sitting may from time to time by resolution issue directions through the Federal Government to the Council generally or in a particular matter to take action as (Majlis-eShoora (Parliament)) may deem just and proper and such directions shall be binding on the Council.
(5) If the Federal Government or a Provincial Government is dissatisfied with a decision of the Council, it may refer the matter to (Majlis-eShoora (Parliament)) in a joint sitting whose decision in this behalf shall be final.
8. Perusal of these Articles shows that the object of C.C.I. Is to safeguard the interest of Federating units and to establish good relations between the Government of Federation and the Provinces.
9. C.C.I. Is to work as laid down in Article 154 and is responsible to both the Houses of Parliament. C.C.I.
10. Is required to formulate and regulate policies in relation to matters in Part II of the Federal Legislative List. The Council has two main functions to perform. One to formulate and regulate policies as stated above, and second to exercise supervision and control over related institutions.
11. Part II of the Federal Legislative List contains 8 items and entry No,3, which is relevant for these matters, speaks about of "Development of Industries". We are of the view that the Council would have power to formulate and regulate policies when basically the question is of development of industries and the development is declared by the Federal law to be expedient in the public interest. In these cases, the controversial point is not about development of industries but disposal of property vested in the Government. Prima facie, the development and disposal are two different propositions and stand for different legal meanings. Suffice it to say that C.C.I. Has nothing to do so far the disposal of the Government property, is concerned.
12. Mr Sabihuddin Ahmed learned counsel for the petitioners cited the case of Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473 relevant page 656 and relied upon para. 38 which is as follows: "There is substance in the assertion of the learned Attorney-General that the Government ought not to have transferred any units included in Part II of the Federal Legislative List to the private sector in the absence of a policy or policies framed by the Council of Common Interests. But, then perhaps this was a case of unintentional lapse on the part of the petitioner's Government and not an instance of flagrant violation of the Constitution. It was for the first time in December 1992 that the Privatization Commission which had been constituted to examine certain aspects of privatization drew the attention of the Government to this omission. It stated in its report: "...The whole process of privatization, unilaterally initiated by the Federal Government, by passing the Council of Common Interests and the NEC, appears to be ultra vires of the Constitution."
13. Learned counsel argued that from above observations it is evident that the Government ought not to have transferred any units included in Part II of the Federal Legislative List to the private sector in the absence of a policy or policies framed by the Council of Common Interests.
14. This is, however, clear from above observations that the Act of the Government was taken as "unintentional lapse and not an instance of flagrant violation of the Constitution". It was also observed by the Supreme Court in this matter that the Council, in any of its meetings, could have regularised the steps already taken in ignorance of the Constitutional petition and even the joint session of the Parliament where the petitioner's Government enjoyed the majority could have validated the past acts of the Government in this regard. It is significant to note that the Supreme Court never ruled that the transfer of any units to the private sector was illegal, nor it laid down that such transfer was not in public interest. Privatization is a Universal Phenomenon and is being recognised as such. The Dictionary meanings of word ''Develope" are: to unroll: to lay open by degrees: to free from integuments or that which envelops: to bring out what is latent or potential in: to bring to a more advance or more highly organised state: to work out the potentialities of: to elaborate: to cause to grow or advance: to evolve: to contract (a disease): to make more available: to exploit the natural resources of (a region): to build on or prepare for building on (land): to bring into a position useful in attack (Chess): to disclose: to express in expanded form (math): to unroll into a plane surface (geom): to render visible the image on a negative by use of chemicals (phot).--- v.i. To open out: to evolve: to advance through successive stages to a higher, more complex, or more fully grown state. While the word "DISPOSE" means act: to arrange: to distribute: to place: to apply to a particular purpose: to make over by sale, gift, etc. To bestow: to incline.---i,e, to settle things: to ordain what is to be: to make a disposition: (usu. With of) to get rid of. There is no nexus between the two terms/words "DEVELOPE" and "DISPOSE" and that C.C.I. Is only concerned with the development and the disposal of the Government property is a different matter, which is governed by Article 173 of the Constitution.
15. As regards the plea that in view of Article 253 of the Constitution, the industries being in State sector could not be allowed to be owned, controlled, or managed by the private sector, it is noted that said Article lays down that the Parliament may by law declare any trade, business, industry or service specified in such law, shall be carried on or owned by the Federal Government and Provincial Government or by a Corporation controlled by any such Government to the complete or partial exclusion of the others. This Article cannot be invoked where the question of the disposal of Government property is involved, nor the Government can be compelled to run any trade, business, or industry; which it does not want to carry on.
16. Mr. Sabihuddin Ahmed, next, argued that by virtue of subsection (4) of section 4 of the Act No,22 of 1991, the provisions of Article 6 of President's Order 12 of 1978 are not applicable, as such, the Government was not competent to transfer the management, consequently the respondents were not entitled to assume the management of the company. According to learned counsel, under Article 6 of President's Order No,12 of 1978, the management could not be transferred.
17. In order to appreciate the above contention, it is necessary to refer various provisions of law on the subject, beginning from President's Order 1 of 1972 till the Act 12 of 1992 was passed. According to President's Order 1 of 1972, the Central Government was empowered to appoint Managing Director in respect of establishment, defined in the said order. Consequent upon the appointment of a Managing Director in respect of an establishment, the administration of the affairs of that establishment vested in the Managing Director, so appointed. According to Article 6 of this Order, all persons employed in the establishment were to continue in their respective employment on the same remuneration and other conditions of service as were applicable to them immediately before the appointment of the Managing Director of the establishment. In the year 1973 Act LXIV was passed. By this Act, certain amendments were brought in President's Order 1 of 1972 and Articles 7-A to 7-E were inserted, which are as follows: "Article 7-A: Power to prohibit dealings in shares, etc.---(1) The Federal Government may, by notification in the official Gazette, direct that---
(a) no dealings of business relating to the shares of the managed establishment specified in the notification shall be transacted on any stock exchange; and
(b) no transfer of the shares of the managed establishment specified in the notification shall be registered in the share register of the establishment except to the extent and in the manner so specified.
(2) A notification issued under paragraph (a) of clause (i) shall remain in force for a period of ninety days unless it is earlier rescinded or modified.
18. Article 7-B.
19. Power to acquire shares or business of an establishment.---(1) The Federal Government may, if it considers necessary in the public interest so to do, by an order,---
(a) in the case of an establishment which is a company or an establishment owned by company,- --
(i) acquire the entire shares held in the company by the sponsors and directors of the previous management thereof, the family members of such sponsors and directors and the associated undertakings and managing agents which were the associated undertakings and managing agents of the company at the time at which a Managing Director was appointed in respect thereof and the whole or a portion of the shares from all or any of the shareholders of such company and, as from the date of such order, the shares so acquire shall vest in the Federal Government; or
(ii) acquire the whole or a portion of the proprietary interests of such company in such establishment and, as from the date of such order, the interests so acquired shall vest in the Federal Government; and
(b) in the case of an establishment owned by a person acquire the whole or a portion of the proprietary interests of such person and, as from the date of such order, the interests so acquired shall vest in the Federal Government: Provided that no order shall be made under the Article for the acquisition of the shares held in an establishment by a foreign investor or an institution owned, managed or controlled by the Federal Government: Provided further that in the case of an establishment which is a company or an establishment owned by a company, the Federal Government may, by notification in the official Gazette, exempt from acquisition shareholdings of any shareholder up to such maximum amount as may be specified in the notification.
20. Explanation.--In this clauses--
(a) "associated undertaldngs" has the same meaning as in the Monopolies and Restrictive Trade Practices (Control and Prevention) Ordinance, 1970 (V of 1970);
(b) "family members" in relation to a sponsor or director, means the spouse, lineal ascendants and descendants and brothers and sisters of the sponsor or director; and
(c) "previous management", in relation to a company, means a person, body or managing agency in whom the management of the company vested immediately before the appointment of a Managing Director in respect of such company or of the establishment owned by it.
(2) Where the Federal Government makes an order under clause (1) in respect of the shares of any company, no dealings or business relating to such shares shall be transacted on any stock exchange for a period of ninety days from the date of such order.Article 7-C: Acquisition of shares.---Where, under Article 7-B, the Federal Government acquires the whole or a portion of the shares of the shareholders of any company or of the proprietary interests of a company or other person in an establishment, the Federal Government shall, within a period of ninety days, pay such compensation as may be determined by it on the basis of the principles set out in the Second Schedule.
21. Article 7-D: Reorganisation of establishment---(1) Where, in respect of any managed establishment which is a company or an establishment owned by a company, the Federal Government holds or has acquired the whole or a majority portion of the shares in the company carrying the controlling voting rights, or where the Federal Government has acquired the whole or a controlling portion of the proprietary interests it may at any time re-organize such establishment with a view to increasing its efficiency and rationalising its operation.
(2) The re-organization may include provision for amalgamation of a managed establishment with other such establishments or within undertakings owned or managed by the Federal Government or by a corporation set up under the authority of the Government and, in the case of establishments which are companies or establishments owned by companies, may provide for the reconstruction of any such company or companies, or amalgamation of any such two or more companies and for all or any of the matters contained in section 153 or section 153-B of the Companies Act, 1913 (VII of 1913), or for alteration of share capital or loan structure and alternation of existing, or adoption of fresh, articles of association of such companies.
(3) The re-organization shall be implemented and take effect in such manner and at such time as the Federal Government may, by notification in the official Gazette, specify.
22. Explanation.--- For the purpose of this Article and Article 7-B, the Federal Government shall be deemed to have a majority portion of the shares in a company carrying controlling voting rights or the controlling proprietary interests in an establishment if the aggregate face value of the shares or proprietary interest in such establishment owned by the Federal Government and by an institution owned or controlled by the Federal Government exceeds 50% of the total voting rights in the issued and paid-up shares capital of the company of 50% of the proprietary interests of that establishment.
23. Article 7-E: Vesting of management, etc., acquired by Federal Government in a corporation.---(1) Where the Federal Government acquires the whole or a majority portion of the shares or proprietary interests of a company or other person under Article 7-B, the Federal Government may transfer the management of, and such shares or proprietary interests in such establishment to any corporation wholly owned or controlled by the Federal Government or a corporation to be set up for the purpose.
(2) A corporation to which the management of, or shares or proprietary interests in, an establishment is or are transferred under clause (1) shall, in the exercise of its powers and performance of its functions, by subject to the general supervision and control of such Board or other authority the Federal Government may set up for the purpose."
24. By virtue of Article 7-B quoted above, the Federal Government was empowered to acquire the shares of an establishment.
25. On 10th September, 1978 Transfer of Managed Establishment Order No,12 of 1978 was passed. Article 4 of this Order empowered the Federal Government to transfer shares and proprietary interest to the persons specified, and on the terms set out, in the Schedule. Under Article 5 of this Order, an extraordinary general meeting of the company was to be held for purposes of electing the Board of Directors of the Company. This was for transferring the shares and proprietary interests. Under Article 6 of this Order, the Federal Government was empowered to cancel the orders made by it under clause (1) of Article 4 and Clause (1) of Article 7-E of Order 1 of 1972 quoted above.
26. Thereafter, another Ordinance No,5 of 1988 was passed. Under this Ordinance, the Federal Government was empowered to transfer the shares and proprietary interests, through public advertisement, inviting bids for the transfer of shares to such persons and on such terms and conditions, as was deemed fit. It is noted that by virtue of President's Order 12 of 1978 the shares and proprietary interests were to be transferred to the persons specified in the Schedule, who were the persons from whom the management was taken. Ordinance 5 of 1988 permitted disposal of shares and proprietary interests by inviting bids. Thus, the shares and proprietary interests by virtue of Ordinance 5 of 1988 could also be transferred to the persons, other than those from whom the management was taken.
27. Thereafter, the Act XXII of 1991 was passed. According to it, the shares of proprietary interests were to be transferred to the persons specified in the Schedule on the highest bid so received, and if the persons specified in the Schedule did not accept the offer made under Clause (2), the Federal Government could transfer the same to such persons and, on such terms and conditions, as was deemed necessary.
28. It would be noted that when the shares of the proprietary interests were to be transferred to the persons other than the persons specified in the Schedule, it was laid down in Order No,5 of 1988 and Act No,22 of 1991 that the provisions of Articles 5, 6, 7, 8, 9, 10 and 11 and the Schedule of this Order i,e, 12 of 1978 would not apply. These Articles were to apply to persons specified in Schedule and not to the persons to whom the transfer of shares and proprietary interests were to be made as a result of inviting bids through a public advertisement. It was in this context that the provisions of Articles 5, 6, 7, 8, 9, 10 and 11 of the Order No,12 of 1978 were not to apply. In other words, the above Articles could be invoked only when the shares and proprietary interests were transferred to the Original Owners. There is no conflict in the various provisions referred in above. The provisions of Article 6 of President's Order 12 of 1978 could not override the provisions of Act No,22 of 1991, nor there in any force in the contention that ownership still remains with the Government and only its management was transferred. It is for the simple reason that the transfer of shares and proprietary interest means nothing but the complete transfer of ownership. Besides, section 7 of Act 12 of 1992 provides complete protection in respect of ownership, management, and control regarding the establishment or enterprise transferred to the private sector. It is as follows:--- Protection of transfer of ownership to private sector.--The ownership, management and control of any banking, commercial, manufacturing or other company, establishment or enterprises transferred by the Government to any person under any law shall not again be compulsorily acquired or taken over by the Government for any reason whatsoever.
29. M/s. K.M. Samdani and Abdul Haleem Pirzada learned counsel for the respondents argued that the case is covered by Article 173 of the Constitution and it is the Executive Authority of the Federation and of a Province to grant, sale, disposition or mortgage of any property vested in it.
30. Learned counsel submitted that the exercise of this Authority is not dependant upon the presence of an Act of legislation by the appropriate legislature. In support of above contention, reliance is placed on the case of Calicon (Pvt.) Ltd v. Federal Government of Pakistan, etc. NLR 1993 Civil 364.
31. In order to appreciate the contention, it would be advantageous to produce the Article 173 of the Constitution, which is as follows:--- Article 173:
(1) 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 mortgage of any property vested in, and to the purchase or acquisition of property on behalf of, the Federal Government or, as the case may be, the Provincial Government, and to the making of contracts.
(2) All property acquired for the purposes of the Federation or of a Province shall vest in the Federal Government or, as the case may be, in the Provincial Government.
(3) All contracts made in the exercise of the executive authority of the Federation or of a Province shall be expressed to be made in the name of the President or, as the case may be, the Governor of the Province, and all such contracts and all assurances of property made in the exercise of that authority shall be executed on behalf of the President or Governor by such persons and in such manner as he may direct or authorize.
(4) Neither the President, nor the Governor of a Province, shall be personally liable in respect of any contract or assurance made or executed in the exercise of the executive authority of the Federation or, as the case may be, the Province, nor shall any person making or executing any such contract or assurance on behalf of any of them be personally liable in respect thereof.
(5) Transfer of land by the Federal Government or a Provincial Government shall be regulated by law."
32. The question for determination with reference to Article 173(1) is whether any Act of appropriate legislature is necessary for the exercise of executive authority for the purpose grant, sale, disposition or mortgage of any property by the Federal or Provincial Government. This point was in detail examined in the case of Calicon Limited, and having taken into consideration that the phrase "Executive Power" is not defined in our Constitution and two Indian cases (1) Rai Sahib Ram Jawaia Kapoor and others v. The State of Punjab AIR 1955 SC 549, (2) Haji T.M. Hassan Rawther v. Karayla Financial Corporation AIR 1988 SC 157, the following was laid down in the said case: "It is thus clear that Article 173 is in pari matria with Article 298 of the Indian Constitution. We find no reason to differ with the approach of the Indian Supreme Court in Rai Sahib Ram's case which is in accord with the principle of interpretation of Constitutional instruments that the Constitutions are to be interpreted organically and harmoniously. Every word in the Constitution is to be given effect by harmonizing the various provision of the Constitution and nothing is to be rendered surplus or redundant.
33. We are, thus of the view that no specific legislation is necessary for the exercise of executive authority under Article 173(1) ibid of our Constitution for the purpose of sale, mortgage or disposal of the property by the Federal/Provincial Government. Of course if an Act of the appropriate legislature holds the field its provisions shall be followed by the executive authority in the matter of sale, mortgage or disposal of the property vested in the Federal or Provincial Government. However, existence of an Act of the appropriate legislature is not a prerequisite for the exercise of the executive authority under Article 173(1) of the Constitution."
34. It is pointed out here that the judgment of Galicon case was challenged before the Supreme Court in Appeal No, 70/L of 1992 and the petition was dismissed with the following observations: "We have heard Mr. K.M.A. Samdani, Advocate for the petitioner but we do not consider it necessary to go into all the questions agitated before the High Court because we are fully satisfied that the petitioner's writ petition stands rightly rejected."
35. We agree with the dictum laid down in the Calicon case and hold, with reference to the facts of this case, that the Federal Government was competent to dispose of the property involved in these petitions.
36. Mr. Sabihuddin Ahmed also contended that the Memorandum of Agreement dated 15-10-1991 has used the Expression "employees" as such the benefit of Golden Hand Shake Scheme, in all fairness, should have been given to all the employees, including officers and should not have been restricted to a particular category of employees namely the workers. It is noted that no Officer or the association of officers of any Unit was party to this memorandum of agreement. As pointed out earlier, it was signed by the then three Federal Ministers, and Chairman Privatization on behalf of the Government, and by all Pakistan State Enterprises Workers Action Committee, representing the employees of the State Owned Industrial Units and Corporation. Perusal of said memorandum unequivocally postulates that it was an Agreement between the aforesaid parties and the officers of the State Owned Industrial Units and Corporation had no concern whatsoever with it nor they could equate themselves with the workers just to extract the benefit arising from said agreement. It clearly mentions that it was for the benefit of "Workers" of the State Enterprise which was being privatised. Under the heading, "Terms of agreement Package A", the "Employees" were to be the accorded all protection available to them under the Labour Law. It is pertinent to point out here that admittedly Lahour Laws are applicable to the workers and not to the Officers of any such establishments. Another circumstance, showing that this memorandum of agreement is applicable to the workers, is that in Package B, para. (d) it is clearly mentioned that list of employees for Golden Hand Shake Scheme was to be provided by the respective Collective Bargaining Agent, which only represented the workers. Para. (e) of this Package speaks about Seasonal Employees. The Officers have never been taken as Seasonal Employees. They are either temporary or permanent. These are the only workers who, under certain circumstances, are appointed as Seasonal Employees. The protection given to the officers under the Sale Agreement, dated 12th January, 1993 was that their services could not be terminated for 12 months from the date the Corporation was taken over by the new owners and this period admittedly has already passed.
37. Mr. Abdul Haleem Pirzada learned counsel for the respondent argued that the petitioners had filed the Application No,2/1993 before the Labour Court No,II, Karachi, wherein they had contended that they were also entitled to the benefits of Golden Hand Shake Scheme, as per Memorandum dated 15-10-1991, and has prayed for grant of Charter of Demands. Demand No,4 specifically states that management shall also introduce Golden Hand Shake Scheme, for the Members of Associations namely, the officers. This is an implied admission on the part of the officers that they were fully aware of the fact that said scheme was not meant for them and they could not take any advantage of it and for this very reason they had demanded that it should also be introduced for them.
38. Mr. Abdul Haleem Pirzada submitted that the issue whether or not the Officers of managed establishment were entitled to Golden Hamd Shake was examined by a Division Bench at Sukkur, in Constitution Petition No,D-16 of 1993, and the finding recorded by the D.B. Is that they were not entitled to it as per the following observations: "It has been shown to us (per Annexure D at page 17) that such package was in the shape of a Voluntary Separation Seheme (15-11-1991) concluded as per agreement between the management of the Ghee Corporation of Pakistan and the workers of the units functioning under it and that scheme did not at all refer to any officers to whom the concession of Golden Hand Shake could be extended."
39. Mr. Habib-ur-Rehman learned counsel for the petitioners in C.P. No,D-756 of 1993 referred to the various clauses of Sale Agreement dated 9-5-1992 and contended that this agreement safeguards the interests of all the employees, and according to him, there should not be any discrimination in this regard between the officers and workers. He particularly referred to Clause 5 of this Agreement, which, inter alia, says that the successful bidder shall take over the entire personnel under their management and their service matter shall continue to be dealt with in accordance with the relevant laws in force in Pakistan. According to this clause, the buyer had under taken to share the liability arising on account of Golden Hand Shake to the extent of 50% to be certified by the Privatization Commission as per procedure. Suffice it to say that the petitioners have shown themselves as officers in the petition and have filed their Service Rules, which are on record. These are the officers who were appointed in the Executive Cadre Grades E-1 to E-5, and those engaged by the Company on any of its project on contract basis, and the deputationist from the Federal or Provincial Government or other Organization and Agencies. Nowhere they pleaded they are workers and are governed by the Labour Laws.
40. 'Mr. Khalid Javed learned counsel for respondent No, 3 (C.P.No,D-756/1993) referred to the letters, dated 10th May, 6th June, 7th and 15th October, 1991 of the officers (Senior Employees Association of the Metropolitan Steel Corporation) and, on the basis of contents of these letters, submitted that they were aware that they were not considered for the benefit of Golden Hand Shake Scheme. It is not denied that these letters were not written by the officers. It is evident from these letters that these officers knew of not being entitled to the benefit of Golden Hand Shake Scheme.
41. Mr. S.M. Yaqoob learned counsel for respondent No,4 (C.P.No,D-756 of 1993) after tracing history of the Labour Laws, submitted that everywhere in the world the workers are protected and given benefits through Labour Laws. He also submitted that after every two years the benefits are given to the workers through CBA and not to the officers. He argued that the workers are governed by the Labour Laws, while those laws are not applicable to the officers. He mentioned that the mamagement grade, and executive grade of the Officers were as follows: GRADE PAY SCALEACCOMMODATION TRANSPORTPERSONAL STAFF SUBSIDYUTILITIESAPPLIANCESRESIDENTIAL TELEPHONE Rs. Rs. Rs.
42. STM-1 9000- 55- 167708918 Free Chauffeur driven Car with 340 litres of Petrol1000 Elect: 900 units Gas:3HM3 Water: ActualAC - 2 Fridge- 1 or Rs.300 p.m. in lieu of eachFree up to 1200 local calls a month STM-II 7225- 525- 140158125 Free Car for official & private use without Chauffeour with 270 litres of petrol (Chauffeur may be provided to MDs)1000 Elect: 750 units Gas: 2.5 HM3 Water: ActualAC- 1 Fridge - 1 or Rs. 300 p.m. in lieu of eachFree up to 900 local calls a months. MDs up to 1200 local calls a month STM-III6775- 450- 126757313 Free Car official & private use without1000 Elect: 500 units Gas: 2.5 HM3AC- I Fridge- i Rs.300 p.m.
43. In lieu of each.Free up to 800 local calls a month.
44. Chauffeur with 235 litres of petrol or Conveyance Allowance upto Rs.1,500 p.m. at the discretion of CorporationWater: Actual Designation Scale of pay Basic pay House Rent Conveyance AllowanceTotal Rs. Rs. Rs. Rs. Rs.
45. Sr. Officer 2160-180-5760 2160 1690 570 4420 Asstt. Manager 2915-225-6290 2915 2210 680 5605 Dy. Manager 4300-270-7810 4300 2600 800 7700 Manager 5765-320-9605 5765 3380 910 10055 Dy.Gen.Manager6250-340-109306250 4160 1030 11440 Learned counsel also submitted that the grades of unskilled workers, Semi skilled workers and skilled workers were 750-30--1050-EB-40-14-- 50, 800--40--1200-Eb-50--1700 and 850--500- -1350-EB-60--1950 respectively. He concluded that there was exceedingly great difference between total emoluments of the officers and workers and the former could not claim the benefit, which was exclusively available to the latter under Labour Laws.
46. Benefits are claimed under an agreement or they emanate from law. Under the agreement in question, the officers could not be removed from the job for 12 months and that period has already passed. Labour Laws are not applicable to the officers. Therefore, they are not entitled to the benefit extended to the workers under those laws.
47. Learned counsel for the petitioners also contended that, being citizen of Pakistan, they are entitled to equal protection of law and there should not have been any discrimination under Article 25 of the Constitution between them and the workers. Precisely stated that the argument is that the petitioners and the workers were employees of the same company, but the workers were given the facility of Golden Hand Shake, while, without any justification, it was denied to the officers. It is not disputed, nor it could be, that reasonable classification is always permissible under law.
48. Classification which is based upon substantial difference with reference to the object or persons dealt with is always permissible under law. It does not violate the principle of "Equal Protection of Law." The provisions of this Article do not speak about abstract equality, but, in fact, proclaims equality before the law. The officers and workers are two different type of employees and their terms and conditions of service are also distinct. Classification for them was within the parameter of legally permissible actions.
49. Mr. Abdul Haleem Prizada learned counsel for the respondent on this point cited Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others PLD 1993 SC 341.
50. The Supreme Court while dealing this Article observed as follows: "As the judgments from Indian jurisdiction have been considered in the aforestated judgments of this Court, we would not refer to them here. In all these authorities there seems to be a unanimity of view that although class legislation has been forbidden, it permits reasonable classification for the purposes of legislation. Permissible classification is allowed provided the classification is founded on intelligible differentia which distinguishes persons or things that are grouped together from others who are left out of the group and such classification and differentia must be on rationale relation to the objects sought to be achieved by the Act. There should be a nexus between the classification and the objects of the Act. This principle symbolises that persons or things similarly situated cannot be distinguished or discriminated while making or applying the law. It has to be applied equally to persons situated similarly and in the same situation. Any law made or action taken in violation of these principles is liable to be struck down. If the law clothes any statutory authority or functionary with unguided and arbitrary power enabling it to administer in a discriminatory manner, such law will violate equality clause. Thus, the substantive and procedural law and action taken under it can be challenged as violative of Articles 8 and 25."
51. Looking to the factual position of this case and the rule laid down by the Hon`ble Supreme Court cited above, it is evident that it is not a case of discrimination, as contended by the learned counsel for the petitioners. So this contention is also without any force.
52. Mr. Habib-ur-Rehman learned counsel for the petitioners also argued that respondent No,3 (State Engineering Corporation) is an Administrative entity of respondent No,4 and the rules of service applicable to the petitioners employees are that of respondent No,3. Learned counsel submitted that it being so, it shall be concluded that the petitioners are governed by the Statutory Rules.
53. Suffice it to say that the contention, ex facie, is not tenable. The petitioners of these cases are not governed by the statutory rules. From the very beginning, as argued by Mr. Sher Afghan learned counsel for respondents Nos. 4 and 6, the petitioners are the employees of a Private Company.
54. Simply because for some period the privileges and benefit of civil servant were given to them does not automatically put them in the category of employees governed by Statutory Rules. Before the management of the company was taken and also after the transfer of the managed establishment, the petitioners were the employees of a Private Company. Plea of Mr. Sher Afgan is perfectly correct. In fact, this point was not seriously contested by the petitioners as they are well aware that being the employees of a Private Company only its Service Rule will be applicable to them. Accordingly, we do not find any force in this contention and hold that the relationship between the parties is that of master and servant.
55. M/s. K.MA. Samdani and Abdul Haleem Pirzada learned counsel for the respondents cited (1)
56. Chairman East Pakistan Industrial Development Corporation, Dacca and another v. Rustam Ali and another PLD 1966 SC 848 (2) Lt.-Col. Shujauddin Ahmed v. Oil and Gas Development Corporation 1971 SCMR 566 (3) Riazuddin v. Chairman, Pakistan International Air Lines Corporation and 2 others PLD 1992 SC 531 to contend that in case of relationship between the parties of master and servant the only remedy is to claim damages, if any, and not the reliefs which have been claimed in these petitions. As pointed out earlier, the petitioners are the employee of the Private Company as such cannot claim the benefits, which are available to civil servant or the employees of a Corporation governed by the statutory provisions. On this ground also, these petitions are not maintainable.
57. Accordingly, these petitions are dismissed with no order as to costs.
58. (Sd.)
59. Nazim Hussain Siddiqui, J ABDUL HAFEEZ MEMON, ACTG. C.J.---I have read the judgment proposed to be delivered by my learned brother and I fully agree with the conclusion reached by him. I would, however, like to give my own reasons.
60. The facts of individual petitions have been exhaustively given by my learned brother in his judgment and the same need not be repeated. Suffice it to say that all these petitions are directed against the sale, popularly called `Privatization', by the Federal Government of the several industrial and commercial units/corporation, hereinafter called 'establishments', owned by and vesting in it in the public sector, to the respondent private parties and its consequential effects on the service conditions of the employees of such establishments and their entitlement to the benefit packages offered by the Government through Privatization Commission as a result of the policy decision taken by the Government to privatise the establishments by inviting bids through public advertisement and selling the same to the highest bidders under the.Agreements executed with the purchasers.
61. The relevant facts common to all these petitions are that the petitioners are employees and posted as officers in executive grade in the various establishments sold by the Federal Government to the respondent private parties as being the highest bidders under the agreements executed between them and the Federal Government.
62. To begin with, these establishments were in the private sector and owned by the private companies functioning under the Company Law and were being run by their respective Board of Directors. Subsequently management of these establishments was taken over, in other words, nationalized as popularly known, by the Federal Government by virtue of the Economic Reforms Order, 1972 (P.O. 1 of 1972) and Managing Directors were appointed for management of the establishments, after which administration of affairs of such establishments vested exclusively in the Managing Directors, and any person or authority exercising or having the right to exercise immediately before such appointment, any power or function in relation to the management of the establishment ceased to exercise or to have the right to exercise such power or function.
63. After the promulgation of the Constitution of the Islamic Republic of Pakistan, 1973, hereinafter called the Constitution, P.O. 1 of 1972 was amended by Economic Reforms (Amendment) Act, 1973 (Act LXIV of 1973) which empowered the Federal Government also to acquire shares in the taken over establishments and the provisions of P.O. 1 of 1972, relating to the appointment of Managing Directors were suitably amended, enabling the establishments to function in accordance with the provisions of the Company Law.
64. The Federal Government, in pursuance of section 7-B of the aforesaid Act, acquired majority shares (51% to 90% in some cases) in a number of the establishments and thus became majority shareholder and, as a result, also gained control of the management under the Company Law and appointed Managing Directors and nominated its own Directors in the taken over/nationalized establishments.
65. Thereafter, came the area of Privatization. The process of Privatization was initiated by the promulgation of the Transfer of Managed Establishments "Order, 1978 (P.O. 12 of 1978) which enabled the Federal Government to transfer its shares to private persons, both natural and juristic, and the provisions of appointment of Managing Directors and the other Directors by the Government were suitably withdrawn. Over a period of time, the law underwent several changes and finally culminated in the Transfer of Managed Establishments (Amendment) Act, 1991 (Act XXII of 1991), section 4 of which provided as follows:--- "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.
(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 deem fit.
(3) If the persons specified in the Schedule do not accept the offer made under clause (2), the Federal Government may transfer the same to such persons, and on such terms and conditions, as it may deem fit.
(4) In case of transfer of shares or proprietary interests in respect of a managed establishment under clause (2) or clause (3), the provisions of Articles 5, 6, 7, 8, 9, 10 and 11 and the Schedule to this Order shall not apply."
66. It may be pointed out that the cases under consideration here are now governed entirely by the aforesaid Act XXII of 1991. The said Act XXII of 1991 substituted Article 4 of P.O. 12 of 1978 and provided vide its subsection (4) of section 4 that in case of transfer of shares or proprietary interests in respect of a managed establishment under clauses (2) and (3), the provisions of Articles 5, 6, 7, 8, 9, 10 and 11 and the Schedule to that Order shall not apply, with the result that the establishments became companies pure and the simple, although, with some constraints, they were already so under P.O. 12 of 1978.
67. To complete the sequence of events, it may be stated that as a result of Privatization, the establishments stand transferred, money received and valuable rights vested in the purchasers of the establishments, and further, as provided by section 10 of the Protection of Economic Reforms Act, 1992 (Act XII of 1992), all financial obligations incurred, including those under any instrument, or any financial and contractual commitment made by or on behalf of the Government shall cpntinue to remain in force, and shall not be altered to the disadvantage of the beneficiaries.
68. The arguments in these, petitions were led by Mr. Sabihuddin Ahmed, the learned counsel for the petitioners in Petition No,D-138 of 1994 and The other learned counsel adopted his arguments and Made some additional submissions concerning their respective individual petitions.
69. Mr. Sabihuddin Ahmed, learned counsel for the petitioners, raised the following contentions:---
(1) That the Privatization of the establishments was done without consulting Council of Common Interests and was therefore unconstitutional Lad void.
(2) That even if the Privatization effected under Act XXII of 1991 is presumed to be valid, it did not enable the official respondents Nos. 1 and 2 to transfer the management and did not entitle the purchasers/private respondents to assume the management of the company, as under the aforesaid Act only shares in the establishments could be transferred and not the management.
(3) That assuming the Privatization to be valid, the Federal Government according to its policy, announced as per Memorandum of Agreement, dated, 15-10-1991, which allowed the benefit of golden handshake to all the employees but the same was restricted. To the workers only and the officers of the establishments were arbitrarily denied this benefit which amounted to discrimination against them and contravened the fundamental rights of the petitioners.
70. Elaborating his first contention, learned counsel referred to Articles 153 and 154 of the Constitution and submitted that Article 153 provides for establishment of the Council of Common Interests and under Article 154 two functions are attributed to the Council of Common Interests, one, to formulate and regulate policies in relation to matters in Part II of the Federal Legislative List and, second, to exercise supervision and control over related institutions. Item 3 of Part II of the Federal Legislative List, learned counsel submitted, related to development of industries and as such privatization of establishments/industries fell within the item and inasmuch as privatization was done without consulting the Council of Common Interests, it was unconstitutional and invalid.
71. Elaborating his second contention, the learned counsel submitted that Article 4 of the Transfer of Managed Establishments Order, 1978 (P.O. 12 of 1978) provided for the transfer of shares and proprietary interests and by Article 6 provided also for transfer of the management of an establishment, but this Order was amended by the Transfer of Managed Establishments (Amendment) Act, 1991 (Act XXII of 1991) which in its section 4(1) provided for transfer of shares and proprietary interests and by subsection (4) provided that the Articles 5, 6, 7, 8, 9, 10 and 11 of the Transfer of Managed Establishments Order, 1978 (P.O. 12 of 1978) shall not apply; and since Article 6 of the Order 12 of 1978 under which management could be transferred ceased to apply, management of the establishments could not be transferred to the respondents.
72. Elaborating his third contention, the learned counsel submitted that assuming the privatization to be valid, the Memorandum of Agreement, dated 15-10-1991, regarding the golden handshake offered to the employees was basically a policy decision of the Federal Government and was applicable to all the employees, including officers i,e, the petitioners. Consequently, the benefit of golden handshake provided in Package 'Bof the memorandum was available to all the employees both workers and officers, and was not restricted to workers only, and hence could not be denied to the petitioners.
73. As to the effect of privatization on the status of the employees, learned counsel very candidly submitted that if the privatization is held to be valid, their status would be that of contractual employees and would be governed by the terms of their contract only.
74. Mr. Habibur Rehman, the learned counsel for the petitioners in Petition No, D-756/93, adopted the arguments of Mr. Sabihuddin Ahmed regarding privatization and submitted that even if the privatization is held to be valid and the petitioners are legally not found entitled to the benefit of 'golden handshakeunder the Package equity demanded that they having put in best past of their life in service of these establishments, should be given the said benefit also.
75. He next submitted that after privatization, the employees continued to enjoy the same terms and conditions of service as were available to them while the establishments were in public sector and owned by the Government.
76. Mr. Hussain Shah Rashdi appearing for the petitioners in C.P. No,D-2326/94 also adopted the arguments of Mr. Sabihuddin Ahmed and added that the petitionerscase be considered on humanitarian grounds and the benefit of golden handshake be extended to them.
77. Mr. K.MA. Samdani, the learned counsel for the respondent Privatization Commission in all the petitions, in reply led the arguments on behalf of the respondents and all the other learned counsel for the respondents in the various petitions mainly adopted his arguments and made further submissions relating to their case in the individual petitions.
78. Mr. Samdani while dealing with the first, and the main, contention raised by Mr. Sabihuddin Ahmed, referred to Articles 153 and 154 of the Constitution and submitted that under clause (4) of Article 153, Council of Common Interests is responsible to Parliament and under Article 154 the Council of Common Interests is to formulate and regulate policies in relation to matters specified in Part. II of the Federal Legislative List and to exercise supervision and control over related institutions.
79. However, the learned counsel submitted the Council of Common Interests could not formulate and regulate for the Parliament as it is responsible/subordinate to the Parliament and therefore could do so only for the executive. He then referred to Item 3 of Part II of the 4th Schedule and submitted that Council of Common Interests was concerned with the development etc. Of the industries, whereas purchasing or selling of shares had nothing to do with the development of industries. In this context, Mr. Samdani further submitted that under Article 173 of the Constitution, Federal Government is empowered to sell and dispose of property owned by and vested in it. Further, learned counsel continued, Transfer of Managed Establishments Order, 1978 (P.O. 12 of 1978) which was emended from time to time, lastly by Act XXII of 1991, vide section 4 provided for transfer of shares in the managed establishments acquired under Economic Reforms Order, 1972, and on transfer of shares Articles 5, 6, 7, 8, 9, 10 and 11 of the Economic Reforms Order, 1972 (P.O. 1 of 1972) ceased to apply to such establishments, with the consequence that the same could be disposed of completely by the Government, and consultation with Council of Common Interests was not required.
80. The learned counsel next referred to Article 263 of the Indian Constitution providing for 'Inter State Council', comparable to 'Council of Common Interestsunder Articles 153 and 154 of the Constitution of Pakistan, and to Article 298 of the Indian Constitution, comparable to Article 173 of the.
81. Constitution of Pakistan, and after citing the cases reported as Rai Sahib Ram Jawaya Kapur and others v. The State of Punjab (AIR 1955 SC 549) and Haji T.M. Hassan Rawther v. Kerala Financial Corporation (AIR 1988 SC 157), submitted that, as in the instant case also Cabinet approval was obtained for privatization and the sale was made by inviting tenders, the privatization by the Government was valid.
82. Mr. Samdani next submitted that the question of validity of privatization was considered in the case reported as Calicon (Pvt.) Ltd. v. Federal Government of Pakistan, etc. (NLR 1993 Civil 364) wherein the learned Court held the privatization as valid. This judgment, learned counsel pointed out, was upheld by Supreme Court of Pakistan in Civil Petition for Leave to Appeal No, 470/92 (Calicon (Pvt.)
83. Ltd. v. The Federal Government of Pakistan and others) wherein leave was refused and the petition was dismissed.
84. The contention was also dealt with by Mr. Sher Afgan appearing for respondent No, 6 (Farooq Tawwakal) in Petition No, D-138/94, and also holding brief for Mr. Mohsin Tayebally for respondent No, 4 (Nayadaur Motors) . Learned counsel mainly adopted the arguments of Mr. Samdani and added that assuming the Federal Government could not have privatised without consulting the Council of Common Interests, it is the Council of Common or any member of it who could have objected to it and filed appeal before Parliament under Article 154(5), but the employees of the establishments had no locus standi to challenge the privatisatipn. Learned counsel further submitted that, till today, no objection had been raised by any member of the Council of Common Interests against privatisation and therefore it could be legitimately presumed that all the federating units had tacitly approved of it. Consequently, validity of privatisation of establishments could not be challenged by the petitioners on the ground that it was done without consulting Council of Common Interests.
85. Replying to the second contention of the learned counsel for the petitioners, Mr. Samdani submitted that under the Economic Reforms Order, 1972 (P.O. 1 of 1972), vide its Article 4. Only management of an establishment was taken over by appointing Managing Director whereafter the administration of the affairs of that establishment vested in him to the exclusion of any other person or authority. Thereafter, P.O. 1 of 1972 was amended by Economic Reforms (Amendment)
86. Act, 1973 (Act LXIV of 1973) whereby the Federal Government was empowered to acquire shares and proprietary interests of an establishment and this position continued till the Transfer of Managed Establishments Order, 1978 (P.
0. 12 of 1978) was promulgated under which, vide Article 4(1) (4), the Federal Government was empowered to transfer the shares or proprietary interests in respect of the managed establishments to the persons specified and on the term set out in the Schedule, and as the shares and proprietary interests were being offered to previous shareholders, conditions in the shape of Article 5 and others were provided but such conditions in no way prevented the transfer of the administrative control to the transferees. The learned counsel further submitted that P.
0. 12 of 1978, after being amended by the Transfer of Managed Establishments (Amendment)
87. Ordinance, 1988 (Ordinance V of 1988), which stood repealed, was finally amended by the Transfer of Managed Establishments, (Amendment) Act. 1991 (Act XXII of 1991) whereby Article 4 of the P.
0. 12 of 1978 was substituted and an offer was to be made to the persons mentioned, in the Schedule to purchase the shares on the highest bid received after public advertisement, and if the persons specified in the Schedule did not accept the offer, the Federal Government could transfer the same to such persons and on such terms and conditions as it deemed fit i. e. Both the persons mentioned in the Schedule and outsiders. Therefore, learned counsel forcefully argued, if the first right of refusal could be offered to the previous owners as per Schedule and the management could be transferred to them, there existed no justification why the management could not be transferred to the respondents who had offered the highest bid.
88. Learned counsel further submitted that in case of a private limited company, the group of shareholders having/owning more than 50% shares have a right to elect Directors of their own choice and through them assume the management of the company and, as in the present case, the private respondents Nos. 5 to 8 had purchased 90% shares of the company, they were fully entitled to take over the management as the administrative control could not be separated from the ownership/proprietary interests, and even the Federal Government could not take back the management of the establishment from the private respondents purchasers in view of the Protection of Economic Reforms Act, 1992 (Act XII of 1992).
89. As to the third contention of the learned counsel regarding petitioners being entitled to the benefit of golden handshake under Package 'Bof the Memorandum of Agreement, Mr. Samdani in reply contended that even if the word 'employeesused in the Memorandum of Agreement were to include both officers and workers, the preamble of the memorandum and other material appearing on the record clearly showed that the settlement was arrived at with and for the benefit of workers only, who were also employees, and consequently, the benefit of golden handshake was not available to the petitioner officers.
90. While dealing with the last contention raised by Mr. Sabihuddin Ahmed that officers were entitled to the benefit of golden handshake under clause (5) of the sale agreement executed by the Government with the buyers of the said establishment, Mr. Samdani referred to this clause in C.P.
91. No,D-138 of 1994 and submitted that this clause did not help the petitioners and was merely an arrangement between seller and the buyer and by itself did not confer any benefit of golden handshake on any one and the Memorandum of Agreement also did not apply to them (officers) because it was executed by the Government with the workers only and not with the officers; and that, even if it did, it was too late in the day as the period during which it could be availed had expired long ago.
92. Mr. Samdani finally submitted that, in any case, the Memorandum of Agreement cannot be enforced through these Constitutional petitions and, in support, relied on the case reported as Millat Tractors Employees Trust and 2 others v. Government of Pakistan and others (PLD 1992 Lahore 68) and the order passed in P.S.L.A. No,1069/91, filed against the judgment of the High Court, whereby the Hon'ble Supreme Court refused to grant leave and the findings of the High Court were upheld.
93. On this very question of petitioners claiming benefit of golden handshake under Memorandum of Agreement dated 15-10-1991 elaborate arguments were also addressed by Mr. Abdul Haleem Pirzada. The learned counsel referred to the Memorandum of Agreement and submitted that reading of it in its proper perspective and in the light of the preamble and specific clauses would show that the said agreement was between the Government and the workers only, and the officers were not entitled to the golden handshake under Package '13. He finally added that yet another reason for their being not entitled to the benefit was that in the Application No,2 of 1993, dated 19- 7-1993, filed by the petitioners before the Labour Court No, 2 at Karachi, the petitioners never pleaded that they were entitled to the benefit of golden handshake under the Memorandum Agreement dated 15-10-1991, but had prayed for the demands mentioned in the charter of demands in which they had asked for the introduction of the golden handshake scheme which, the learned counsel submitted, itself proved that this benefit was neither intended for nor was extended to the officers, and hence the petitioners were not entitled to it.
94. Replying to the last contention of the learned counsel for the petitioners, that the employees of the establishments continued to enjoy the same conditions and protection of service as were available to them while the units were in the public sector, Mr. Samdani submitted that before nationalization under the Economic Reforms Order, 1972 {P.O. 1 of 1972), the petitioners were employees of the private companies and were governed by their contractual terms under Companies Act. After nationalization, the Government having acquired majority shareholding and got control by virtue of Act LXIV of 1973 and, in the interest of management, adopted same service laws as were applicable to civil servants but such application did not make them civil servants and they continued to -be governed in respect of their service conditions by the same terms and conditions as were available to them while they were employees of the private companies before they were taken over/nationalized, and the relationship between the new owners as a result of privatisation continued to be the same as of master and servant. The learned counsel finally argued that the employment of the petitioners in the establishments being contractual and the relationship of the employees with the respondents/new owners being that of master and servant, the contractual conditions of service could not be agitated and enforced through these Constitutional petitions. In support, the learned counsel relied on the cases reported in:
(1) 1981 SCMR 604 (Shameer v. Board of Revenue etc.)
(2) PLD 1990 SC 612 (Mrs. M.N. Arshad and others v. Miss Naeema Khan and others).
(3) PLD 1992 Lahore 68 (Millate Tractors Employees Trust and 2 others v. Government of Pakistan and others.).
(4) PLD 1980 Lahore 82 (Pakistan Engineering Co. Ltd. v. Muhammad Nazir Khan).
95. Regarding the contention, arguments were also addressed by Mr. Abdul Haleem Pirzada and Mr. Sher Afgan, Learned counsel for the respondents in No,D-138/94 and C.P. No,D-2326/94. Mr. Pirzada adopting the arguments of Mr. Samdani added that the petitioners were governed by master and servant rule as they continued to be the employees of a private limited company and though some State employees rules were borrowed and made applicable to them for good management, the same did not alter the relationship of master and servant between them and, therefore, the petitions for enforcement of their contractual conditions of service were not maintainable. In support, the learned counsel relied on the case reported as Pakistan Engineering Co. Ltd. v.
96. Muhammad Nazir Khan (PLD 1980 Lahore 82) and on the unreported judgments of High Court of Balochistan, Quetta in C.P. No,416 of 1992 (Muhammad Anwar Mengal and others v. Privatisation Commission of Pakistan and others). In the aforesaid Quetta case, learned counsel pointed out, after the establishment was solid and possession was delivered to them, the buyers had terminated the services of the officers (petitioners therein) before the expiry of 12 months during which the services of the officers could not be terminated as per terms of sale agreement, but the learned High Court in spite of finding that the services of the officers were wrongly terminated, dismissed the petition by holding that the petitioners therein were governed by Master and Servant Rules which could not be enforced under Article 199 of the Constitution.
97. Mr. Pirzada finally submitted that the terms of employment between the company and its employees, in Petition No,D-138/94, were governed by the rules, known as Nayadaur Motors Ltd.
98. Employees (Management and Executive Staff) Relation Rules, and under Rule 9.2.1, the company could at any time discharge a permanent employee from service by giving 3 monthsnotice or on payment of three monthssalary in lieu of notice (page 227 of C.P. No,D-138/94), and that, these same rules were in force before taking over of the administrative control of the company.
99. Consequently, the petitioners being governed by the rule of master and servant, the petition was not maintainable.
100. Mr. Sher Afgan in this connection submitted that the admitted position is that all petitioners are officers and not workmen and that all the establishments were companies before nationalization and continued to be companies after they were nationalized, and even today they are incorporated companies which are independent legal entities and juristic persons, different from the Federal Government; hence, the petitioners were employees of the company and not of the Government and continued to be governed by the Service Rules of the company which could not be enforced through the petition under Article 199 of the Constitution.
101. Mr. S.M. Yakoob, the learned counsel for respondent No,4 (M/s. Metropolitan Steel Corporation) in C.P. No,D-756/93, adopting the arguments of Mr. Samdani, further contended that in C.P. No,D- 756/93, as originally filed, the point regarding privatization being invalid for not consulting the Council of Common Interests had not been taken nor the present buyer of the establishment, namely, Mrs. Sardar Muhammad Ashraf D. Baluch, was made a party to the petition and subsequently when the amended petition was filed, the point regarding non-consultation with the Council of Common Interests was included but the said buyer was still not joined as a party.
102. Consequently, the learned counsel contended, the privatization of the establishment purchased by the said buyer could not be challenged in this petition, for, in case this petition is allowed, the buyer will lose her majority shares without being heard in utter violation of the rules of natural justice and provisions of law and practice.
103. Learned counsel next submitted that officers of an establishment are professional managers and separate from workers who are governed by Labour Laws while officers are governed by their terms of appointment and other rules issued by management from time to time, and that service rules referred to at pages 43 and 95 of the petition pertained to officers only.
104. Learned counsel fortified his contention by giving a comparative table of pay scales of workers and officers to contend that the officers were governed differently by the rules, inasmuch as, while officers get emoluments up to Rs,22,000, Rs,25,000 and Rs,52,000, a worker's salary was only in hundreds and the benefits available to officers were not available to workers. He finally submitted that the totality of service conditions which constituted service conditions of the petitioners would show that they were servants and their relationship with the owners was that of master and servant, and hence these petitions for enforcement of their service conditions are not maintainable in law. In support, learned counsel relied upon:--
(1) 1995 SCMR 453 (Muhammad Umar Malik v. The Muslim Commercial Bank Ltd. And others).
(2) PLD 1981 SC 224 (Muhammad Yousaf Shah v. Pakistan International Airlines Corporation).
(3) PLD 1961 SC 403 (Pakistan Tobacco Company Ltd. v. Pakistan Tobacco Company EmployeesUnion, Dacca and others).
(4) 1981 PLC 403 (EmployeesUnion Jamia, Karachi and another v. Registrar Trade Unions, Sindh and 2 others).
105. Mr. Khalid'Javed, the learned counsel for respondent No,3 (State Engineering Corporation) in C.P.
106. No,D-756/93 adopted the arguments of Mr.Samdani and added that the relationship between the respondent No,3 and the petitioners being that of master and servant the petition was not maintainable. He further submitted that the rules pointed out by Mr. Habibur Rehman at page 43, were not statutory rules but were rules framed by the respondent No,4 establishment i,e, Metropolitan Steel Corporation as a limited company, and hence the same could not be enforced through this Constitutional petition which was, therefore, not maintainable. He next contended that the Memorandum of Agreement and the sale agreement were not applicable to petitioners and was applicable to workers only. This position, learned counsel continued, was conceded by the petitioners themselves as shown by the correspondence on record, and hence, the petitioners are estopped from raising the contention at this stage. Learned counsel further submitted that it was an admitted position that the establishment, respondent No,4 had been privatised and since it was no more an establishment under the control of respondent No,3 (State Engineering Corporation) relationship of employer and employees between the petitioners and respondent No,3 had ceased.
107. He next submitted that the sale agreement executed between the Federal Government and the respondent No,3, established that the unit had been sold and possession handed over to the buyer.
108. Therefore, learned counsel submitted, the respondent No,3 (State Engineering Corporation) had nothing to do with the petition.
109. Regarding the rules relied upon by Mr. Habibur Rehman at pages 43 to 57 of the petition, learned counsel submitted that according to Rule 8, after confirmation of an officer in regular service, his service could be terminated by giving three monthsnotice without assigning any reason or one month's notice with reason or pay in lieu thereof and these were the terms and conditions of service of officers appointed in the establishment, and no one had complained that these terms and conditions had been violated. That being so, the learned counsel submitted, this petition is not maintainable. In support, the learned counsel relied upon the cases of Riazuddin v. Chairman, Pakistan International Airlines Corporation and 2 others PLD 1992 SC 531 and Karachi Development Authority and another v. Wali Ahmad Khan and others (1991 SCMR 2434). This concludes the submissions made by the learned counsel for the parties.
110. Reverting to the contentions raised by the learned counsel for the petitioners, the first contention of Mr. Sabihuddin Ahmed was that under Article 154 of the Constitution the Council of Common Interests, constituted under Article 153 of the Constitution, was to formulate and regulate policies in relation to matters in Part H of the Federal Legislative List and to exercise supervision and control over related institutions and inasmuch as Item 3 of Part II of the said List referred to 'development of industries', privatisation of the establishments/industries fell within the said item of the List in the domain of Council of Common Interests. Therefore, the privatisation done without consulting the Council of Common Interests was unconstitutional and void.
111. The contention raised by the learned counsel for the petitioners is misconceived and has no merit.
112. Indeed, the issue in these petitions does not relate to development of industries but relates to their sale by the Federal Government. It is quite clear that the expression "development of industries" appearing in Item 3 of Part II is subject to the words that follow, namely, "where development under Federal control is declared by Federal law to be expedient in the public interest". The earlier nationalization has since been reversed by Federal law which now, on the contrary, deems it "necessary in the public interest to transfer the shares or proprietary interests in respect of a managed establishment acquired by it", in other words, to privatise certain such establishments.
113. (Section 2 of Act XXII of 1991 substituting Article 4 of P.O. 12 of 1978). Accordingly, the said item 3 has no application in the present case and does not preclude or affect transfer pursuant to the provisions of law as amended by Act XXII of 1991.
114. We must therefore revert to the question whether the Federal Government was competent to privatise/sell the establishments issued by it to the respondent private parties and whether in doing so consultation with the Council of Common Interests was necessary. In order to answer the question, it is necessary to consider the relevant provisions of the Constitution which bear upon the case. In Part II of the Federal Legislative List, as referred to in Article 154 of the Constitution, the following items appear:- "3 Development of industries, where development under Federal Control is declared by Federal law to be expedient in the pubic interest; institutions, establishments, bodies and corporations administered or managed by the Federal Government immediately before the commencing day, including the (Pakistan Water and Power Development Authority and the Pakistan Industrial Development Corporation); all undertakings, projects and schemes of such institutions, establishments, bodies and corporations, industries, projects and undertakings owned wholly or partially by the Federation or by a corporation set up by the Federation.
115. "4 Council of Common Interest."
116. Article 154(1) of the Constitution provides as under:- "154(1). The Council shall formulate and regulate policies in relation to matters in Part II of the Federal Legislative List and, in so far as it is in relation to the affairs of the Federation, the matter in entry 34 (electricity) in the Concurrent Legislative List, and shall exercise supervision and control over related institutions."
117. Thereafter, clause (4) of the said Article lays down as follows:-- "(4) (Majlis-e-Shoora (Parliament)) in joint sitting may from time to time by resolution issue directions through the Federal Government to the Council generally or in a particular matter to take action as (Majlis-e-Shoora (Parliament)) may deem just and proper and such directions shall be binding on the Council."
118. This is followed by clause (5) which provides:-- "(5) If the Federal Government or a Provincial Government is dissatisfied with a decision of the Council, it may refer the matter to (Majlis-e-Shoora (Parliament)) in a joint sitting whose decision in this behalf shall be final."
119. It is not before us what, if any, formulation and regulation of policies the Council has undertaken or, for that matter, what supervision and control it has exercised in terms of Article 154(1). The Council has not been made a party to the proceedings and it is not necessary for us to determine whether, if at all, it could be made a party. Clause (5) of Article 154 provides specifically for the J Federal Government or a Provincial Government to question a decision of the Council before a joint sitting of Parliament "whose decision in this behalf shall be final". Whether any other party can therefore do so is not strictly a question before us, so we need not dilate upon it.
120. However, Council is composed of the representatives of the Federal and the Provincial Governments and is responsible to the Parliament in joint sitting. No direction has been sought calling upon the Council to perform its functions and although again not necessary for us to decide, it does not to our mind appear within the competence of a private party (as opposed to the Federal or a Provincial Government) to seek such a direction to enforce the words The Council shallin clause (1) of Article 154 of the Constitution. Moreover, Article 97 of the Constitution reads as follows:-- "97. Subject to the Constitution, the executive authority of the Federation shall extend to the matters with respect to which (Majlis-eShoora (Parliament)) has power to make laws, including exercise of rights, authority and jurisdiction in and in relation to areas outside Pakistan: Provided that the said authority shall not, save as expressly provided in the Constitution or in any law made by (Majlis-e-Shoora (Parliament)), extend in any Province to a matter with respect to which the Provincial Assembly has also power to make laws."
121. Clearly, therefore, the Federal Government had the executive authority over the subject-matter and there exists no provision which prevents it.
122. Finally, Article 173 of the Constitution specifically provides, inter alia, that "The executive authority of the Federation.. .. . Shall extend.. ...To the grant, sale, disposition or mortgage of any property vested in.. .. ..Federal Government .. . ..And to the making of contracts". This provision is only subject to any Act of the appropriate legislature, and there exists no enactment which prevents such a sale or disposition as is now envisaged by the Federal Government.
123. Therefore, in all respects, it is the Federal Government which is the executive authority with necessary powers in this matter. Even Article 154(4) in relation to the Council of Common Interests envisages the Federal Government as the appropriate authority. It reads as follows:-- "(4) (Majlis-e-Shoora (Parliament)) in joint sitting may from time to time by resolution issue directions through the Federal Government to the Council generally or in a particular matter to take action as (Majlis-e-Shoora (Parliament)) may deem just and proper and such directions shall be binding on the Council."
124. It is clear therefore that even the Parliament in joint sitting acts "through the Federal Government to the Council". Thus, in the absence of any direction, either from Parliament in joint sitting or the Council of Common Interests, the authority of the Federal Government is unfettered.
125. The question came up for consideration before Lahore High Court in the case reported as Calicon (Pvt.) Ltd. v. Federal Government of Pakistan, etc. (NLR 1993 Civil 364) wherein the learned Court held the privatization as valid and took the view as under:-- "We, are, thus of the view that no specific legislation is necessary for the exercise of exclusive authority under Article 173(1) ibid of our Constitution for the purpose of sale, mortgage or disposal of the property by the Federal/Provincial Government. Of course if an Act of the appropriate legislature holds the field its provisions shall be followed by the executive authority in the matter of sale, mortgage or disposal of the property vested in the Federal or Provincial Government. However, existence of an Act of the appropriate legislature is not a prerequisite for the exercise of the executive authority under Article 173(1) of the Constitution."
126. It may be pointed out here that the said judgment of the Lahore High Court was assailed before the Supreme Court in P.S.L.A. No, 470/92 but the leave was refused and the petition was dismissed by the Supreme Court.
127. The question of validity of privatization was also raised and considered in the case of Millat Tractors Employees Trust and 2 others v. Government of Pakistan through Secretary, Ministry of Labour, Manpower and Overseas Pakistan, Islamabad and 6 others (PLD 1992 Lahore 68), and it was held that the Federal Government had 'the authority to cause the sale of its property. Further, the authority of the Privatisation Commission came under scrutiny before the Supreme Court of Pakistan in the case reported as WorkersUnion United Industries v. Federation of Pakistan (1992 SCMR 2121. Para. 32), wherein it was held that the Privatization Commission being a wing of the Ministry could undertake privatization for and on behalf of the Federal Government.
128. We are in respectful agreement with the view expressed and the findings given by the learned High Court and the Hon'ble Supreme Court, which are in any case binding on us.
129. It may also be mentioned that, admittedly, each new owner is a legal entity being a company incorporated under the Company Law and is presently governed under the Companies Ordinance, 1984. The nature of shares and Certificates of Shares are described under section 89 of the Companies Ordinance, 1984, as movable property transferable in the manner provided in the Articles of the Company, and section 76 of this Ordinance specifically deals with the transfer of shares. Thus, the Federal Government, under Article 173 of the Constitution read with Article 4 of the Transfer of Managed Establishment Order, 1978, as amended by Act XXII of 1991 read with the relevant provisions of the Companies Ordinance, was fully competent to cause the transfer of shares of the managed establishments, subject to the terms of the agreement executed with the purchasers in this regard. That being so, the Federal Government was, indeed, competent to privatise/sell the establishments owned by it to the respondent private parties and, for the reason given above, consultation with the Council of Common Interests was not required.
130. Regarding the second contention of the learned counsel that the shares in an establishment could be transferred but the management thereof could not be transferred in view of section 2 of Act XXII of 1991, reference may first be made to the Transfer of Managed Establishment Order, 1978 (P.O. 12 of 1978). Perusal of sections 4 and 6 of the said order would show that while Article 4 permits transfer of shares and proprietary interests in respect of a managed establishment acquired by it under Article 7-B of the said Order (P.O. 1 of 1972), Article 6 thereof permits transfer of management in case of managed establishment. The said Order (P.O. 12 of 1978) was first amended by the Transfer of Managed Establishments (Amendment) Ordinance, 1988 (Ordinance (V of 1988) and then by the Transfer of Managed Establishments (Amendment) Act, 1991 (Act XXII of 1991), which now holds the field. There can be no doubt that under this legislation, particularly section 2 of the 1991 Act, which amends Article 4 of P.O. 12 of 1978, the Federal Government is specifically permitted to transfer shares or proprietary interests in respect of a managed establishment acquired by it under Article 7-B of the said Order.
131. The main argument advanced by the learned counsel is that whereas P.O. 12 of 1978 specifically provided by Article 6 thereof for the transfer of management, it is now provided by Act XXII of 1991 that Article 6 alongwith Articles, 5, 7, 8, 9, 10 and 11 "shall not apply in the case of the transfer of shares. It is, therefore, put forward that the management cannot be transferred.
132. The correct position however is that the repeal/non-application of this provision has no bearing on the case. Management is to be entrusted to the Board of Directors in accordance with the votes of the shareholders to be exercised as provided in the Companies Ordinance, 1984. To that extent, management would follow the transfer of the major shareholding. This is the normal position following the transfer of major shareholdings with all companies and there is no reason to hold that this would not apply in the present case. Moreover, it is specifically provided by this section that the Federal Government shall transfer "on such terms and conditions as it may deem fit". It would thus seem that the Federal Government had acted in accordance with law, and the Articles 5, 6, 7, 8, 9, 10 and 11 of the Economic Reforms Order, 1972 were rightly held not to apply as provided by section 2 of the Act XXII of 1991.
133. It may further be noticed that P.O. 12 of 1978, by virtue of clause (2) of the Schedule thereto, specified the persons to whom the offer of shares was to be made, which was not only to the main shareholders but to all shareholders, even individuals, who lodged them. It also specifically provided for fmancial institutions which previously held them or had rights in respect of these shares. Thus, at the time, it was not known to whom the majority shares would finally be transferred till acceptance and as to who would immediately be in the majority and, therefore, to whom management would be transferred. It was therefore necessary to have Articles 5 and 6 of P.O. 12 of 1978. Article 5 provided for elections to the Board of Directors of the Company in which the shares were transferred. This would determine to whom the management was to be transferred. Article 6 is consequent on Article 5. It provided, inter alia, that the administration was to be handed over to this Board of Directors. It was necessary therefore to have Articles 5 and 6 to avoid uncertainty and prevent the possibility of confusion in the event of the transfer of shares under P.O. 12 of 1978. There was however no possibility of any such uncertainty or confusion under Act XXII of 1991 because the shares in a managed establishment were to be transferred to one party or consortium and that party then assumed responsibility for management, liabilities, staff and everything that goes with the formerly managed establishment. Thus, it was provided in section 4(4) of Act XXII of 1991 that Articles 5 and 6 alongwith the other said Articles "shall not apply". The contention that in the absence of Article 6 the management could not be transferred is accordingly misconceived and has no merit.
134. As to the third contention of the learned counsel regarding petitioners being entitled to the benefit of golden handshake under Package Bof the Memorandum of Agreement, dated 15-10-1991, a reading of the Memorandum of Agreement in its proper perspective and in the light of the preamble would show that even if the use of the word "employees" in the Memorandum of Agreement were to include both officers and workers, the settlement therein was arrived at with and for the benefits of workers only, who were also employees. Further, perusal of Package 'Aof the said memorandum would show that it gave protection to the employees under Labour Laws and as special measure gave further protection against retrenchment during the first 12 months. This would, indeed, show that the Memorandum of Agreement pertained to workers only, as Labour Laws were not applicable to officers, for whom similar protection against retrenchment was provided under the sale agreement executed by the Government with the individual purchasers. It will be further noticed that the said memorandum was executed between the Action Committee of Workers Employees and the Privatization Commission of the Government, which would again go to show that the memorandum pertained to workers only. When again, Package 'Bregarding golden handshake in clause (D) provides that the list of employees will be provided by C.B.As. And, surely, C.B.As. Can only be of workers and not of officers. Similarly, the use of the words "including seasonal regular employees" mentioned in clause (E) of Package 'B would show that it referred to workers only, as there can be no question of officers being seasonal employees. It may be further pointed out that under the succeeding last para. Of Package 'B', if option under Package 'Bis exercised, the other two Packages 'Aand 'Cwill not be available as they are mutually exclusive, and the paragraph specifically says so. The petitioners having enjoyed the benefits of Package 'Acannot now claim under Package 'B'. Further, the last line of the Memorandum of Agreement reads "the undersigned agree to the proposals made herein on this 15th day of October, 1991" and the executants of this agreement on one side were the representative of the Government of Pakistan and on the other were the persons who were representatives of the respective workersunion, namely, All Pakistan State Enterprises WorkersAction Committee, All Pakistan PECO Central Labour Front etc. It would thus clearly appear from the above that the said Memorandum of agreement was executed by the Government with the workers only and the petitioners, who were officers were not entitled to the said benefit of golden handshake under the Memorandum of Agreement, dated 15- 10-1991. It would further appear from the record that even the petitioners were well-aware that they were not entitled to the said benefit of golden handshake and for that reason had been pleading before the various authorities for extending the said benefit to them, as shown by the letters filed by them, viz., letter, dated 7-10-1991, letter dated 15-10-1991, appearing at page 149 of C.P. No, D- 756/93, letter, dated 10-5-1992, written in Urdu and appearing at page 153 of C.P. No, D-756/93, letter dated 6-6-1992 page 159 of C.P. No,D-756/93 and letter dated 15-12-1992 page 169 of C.P. No, D756/93 written by the petitioners to the Federal Ombudsman. That being so, it cannot be legitimately maintained that petitioners were entitled to the benefit of golden handshake under the said Memorandum of Agreement, and the contention of the learned counsel is repelled.
135. As to the contention that the officers were entitled to the benefit of golden handshake under clause
(5) of the sale agreement executed by the Government with the buyers of the establishments, perusal of the said clause would appear to show that even if the word 'employeeused therein is assumed to embrace all employees without distinction of officers and workers, it does not help the petitioners as it was merely an arrangement between the seller and the buyer and did not, by itself, confer any benefit of golden handshake on any one.
136. Regarding the contention of the learned counsel that employees of the privatised establishments continued to enjoy the same terms and conditions and protection of service as were available to them while the same were in the public sector, it will be advantageous to briefly give the background of the terms and conditions of service applicable to the employees of the establishments, including the nature of their relationship with the employees, before and after privatization. To begin with, before taking over/nationalization of the establishments under Economic Reforms Order, 1972 (P.O. 1 of 1972), the employees of the private companies were governed by their contractual terms and Companies Act and the private companies could hire and fire an employee, and in case of being sacked from his employment, he could sue for damages and claim compensation but he could not seek reinstatement. Another category of employees was of a worker who had protection of Labour Laws and could invoke Labour Court jurisdiction by claiming compensation and reinstatement if victimized for unfair labour practice.
137. Then came the nationalization vide P.O. 1 of 1972. This P.O. Was amended by Economic Reforms Act, 1973 -(Act LXIV of 1973) which enabled the Government to acquire shares in the establishments/nationalized. The said Act LXIV of 1973 also amended the definition of shareholders, management etc. And after suitable amendments were made, the Government or majority shareholders got control of the management. The Government became majority shareholder and could nominate its own Directors. The Government, in the interest of management, adopted same service laws as were applicable to civil servants of comparable status, but such application did not, indeed, make them civil servants, and the rules so applied also did not become statutory rules.
138. At best, these rules became terms of their employment and they continued to be governed in respect of their service conditions by the same terms and conditions as were available to them while they were employees of the private companies before nationaliztaion. Then came the denationalization i,e, privatization, vide, P.O. No,12 of 1978 which by its Article 10, provided that employees of the establishments would continue in service on the same terms and conditions as were applicable to them immediately before issue of such order. This P.O. 12 of 1978 was thereafter amended by Ordinance V of 1988, which, in its substituted Article 4(2) inter alia, provided that the aforesaid Article 10 of P.O. 12 of 1978, ceased to apply to them. However, Ordinance V of 1988 stood repealed and thereafter Act XXII of 1991 was enacted which similarly provided in its substituted section 4(4) that the provisions of Article 10 alongwith the other Articles of P.O. 12 of 1978 shall not apply. Consequently, the cases under consideration being governed entirely by Act XXII of 1991, the employees ceased to have the protection of continuance in service on the same terms and conditions as were available to them when they were employees of establishments in public sector. That being so, after privatization, the ordinary law of master and servant, subject to any other applicable law and the terms of transfer which the Government deems fit, applied and governed the rights of the petitioners as to their service. Accordingly, the terms and conditions of service of the petitioners could not be enforced through these Constitutional petitions, as rightly submitted by all the learned counsel for the respondents. For support, if any is needed, reference may be made to the cases reported in:---
(1) Mrs. M.N. Arshad and others v. Miss Naeema Khan and others PLD 1990 SC 612; (2) Shameer v.
139. Board of Revenue etc. 1981 SCMR 604; (3) Millat Tractors Employees Trust and others v. Government of Pakistan and others PLD 1992 Lah. 68; (4) Pakistan Engineering Co. Ltd. v. Muhammad Nazir Khan PLD 1980 Lah.
140. 82.
141. For the aforesaid reasons, I find no merit in these Constitutional petitions and dismiss the same with no order as to costs.