M. JAVED BUTTAR, J.--- Writ Petitions Nos. 12383/99, 19705/99, 23477/99, 18950/2000, 20991/2000, 9812/99, 7313/2000 and 9120/2000 are being disposed of through this judgment as common questions of law and somewhat similar facts are involved in all these cases.
2. Out of these writ petitions, the first 5 writ petitions are directed against Lahore Electric Supply Company (LESCO) and its officials impugning the orders passed by its officials, on various dates, against the petitioners whereby the orders of compulsory retirement, dismissal from service and removal from service have been passed against the petitioners. The latter 3 writ petitions are directed against Gujranwala Electric Power Company (GEPCO) and its officials impugning the orders of its officials passed against the petitioners of the reversion from service, removal from service and compulsory retirement.
3. The Writ Petitions Nos. 12383/99, 23477/99 and 18950/2000 against LESCO have been admitted to regular hearing and the written statements have been filed by LESCO in the former two writ petitions as well as in Writ Petition No. 19705/99, which is still at motion stage.
4. Writ Petition No. 9812/99 against GEPCO has also been admitted to regular hearing and the GEPCO has also filed its written statement in this writ petition. Therefore, in all these writ petitions, the point of view of LESCO and GEPCO, on legal issues, is available in writing as well. The rest of the writ petitions which are still at the motion stages have also been heard and are being disposed of because of the commonality of the legal issues.
5. The perusal of General Order No. 01, dated 26.3.1998, issued by the Chairman, Pakistan Water and Power Development Authority (WAPDA) (Annex A to Writ Petition No. 12383/99) shows that pursuant to the Pakistan Power Sector Reform Programme, it was decided to corporative the assets blocks of the Authority (WAPDA) into separate, independent commercial entities to enhance the efficiency and competitiveness of the Power Wing of WAPDA. The LESCO & GEPCO and similar other regional electricity supply companies are the result of this policy decision. These are public companies, limited by shares, registered under the Companies Ordinance, 1984 and the legal cover to enter into agreements with them has been provided by the Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997). After the creation of these limited companies, the WAPDA placed the services of its employees in the respective areas at the disposal of these limited companies, which are commercial organizations. To quote an example Office Order No. 18613- 20/MDP/E 1/103/3400/6, dated 17.6.1999, issued by the Office of the Managing Director (Power), WAPDA, Lahore, copy of which has been placed on the record of Writ Petition No. 12383/99, shows that WAPDA placed the services of its employees enumerated in the list attached with this order, at the disposal of LESCO, on secondment basis with immediate effect. Through this order services of 11,928 employees of WAPDA. In BPS 1 to 11, 600 employees in BPS 12 to 16 and 320 employees in BPS 17 to 20 (12848 employees) were placed at the disposal of LESCO i.e.. I 7.6.1999. Para 2 of this Office Order shows that the second employees will continue to be governed by the terms and conditions of their service as heretofore in addition the following provision will also apply:--
(a) The secondment shall be for a transition period of 3 years which is extendable. During the transition period, LESCO, if they so choose, may make offer of employment under a new contract to individual secondees. Personnel to whom such offer is not made or those who refuse such offer, shall revert to WAPDA. During the period of secondment a secondee's contract of employment with WAPDA shall remain intact till such time that he is transferred to LESCO or another corporate entity by mutual agreement under a new contract.
(b) There shall be no diminution in rank and pay of the employees nor withholding of any benefits during the transition period.
(c) There shall be no severance from employment as a result of WAPDA's restructuring during the period of secondment except when due to normal causes such as physical and mental incapacity or mandatory retirement under the existing rules and regulations.
6. Pan 3 of this Office Order shows that the secondees whose names appear in the list shall not be posted/transferred outside the LESCO, except with prior approval of Pakistan Electric is Power Company (Pvt.) Ltd., WAPDA House, Lahore. his shows that to regulate the transfers of the employees from one region to another or from one such company to another company, a third entity in the name of Pakistan Electric Power Company (Pvt.) Ltd., Lahore, has come into existence, the details of this company have not been furnished by either of the parties and even otherwise the scrutiny of its functions is not relevant for the purposes of disposal of these petitions.
7. It has already been mentioned above that in all these petitions the impugned orders have been passed against the petitioners by the LESCO or GEPCO, on various dates of compulsory retirement from service, dismissal from service and of removal from service and in some cases it is reversion from service.
8. It is contended by the learned counsel for the petitioner that LESCO and GEPCO were formed in March, 1998, the services of the petitioners were transferred without their consent and the impugned orders were passed without holding of any enquiry which was necessary, in all these cases, the letters calling for explanation were issued, the petitioners denied the allegations and .Then without holding enquiries show-cause notices were issued, the petitioners again denied the allegations but without holding enquiries, impugned orders were passed straightaway by these companies. Reliance in this regard is placed on Basharat A.I v. Director, Excise & Taxation, Lahore and another (PLJ 1997 S.C. 1 393). It is submitted next that the impugned orders have not been passed by WAPDA but by LESCO and GEPCO and, therefore, they are coram non judice. Further reliance is placed on Ahmad Hussain Qureski v. Chairman, Water and Power Development Authority and another (PLD 1967 Lahore 796), Fayyaz A.I Khan v. The Government of West Pakistan through the Secretary, Transport Department and ,another (1971 SCMR 454) and Ch. Muhammad Ashraf v. Ph. Road Transport Board, Lahore and 2 others (PLJ 1979 Lahore 376). It is then submitted that none of the shares in LESCO and GEPCO are held by the Federal Government, therefore, Section 2-A of the Service Tribunals Act, 1973 is not applicable and under Section 4 of the Service Tribunals Act, 1973, Federal Service Tribunal is competent only against the order of the Departmental Authority, whereas, in the instant case, the order has not been passed by the Departmental Authority, therefore, the petitioners cannot approach the Service Tribunal. Reliance in this regard is placed on ,Mujeebullah Aijaz v. Director General, Telephone and Telegraph Department and 2 others (PLD 1980 Quetta 58), Mian Inamul Mulk v. N. W.F.P. Through Chief Secretary (PLD 1981 Peshawar 1) and Mumtaz Ahmad Chaudhry v. National Bank of Pakistan (NLR 1989 Labour 55).
9. The Lahore Electric Supply Company (LESCO) in its written statements has raised preliminary objections and has denied the allegations, on merits. It is stated that the petitions are not maintainable because the petitioners are civil servants by virtue of Section 2-A of Service Tribunals Act, 1973 and also under Section 17(1B) of Water and Power Development Authority Act, 1958 as the officers and employees in the Power Wing and Finance Wing of WAPDA are continuing their service in LESCO having terms and conditions of their services governed under the statutory provisions of WAPDA Act, 1958 and the Efficiency & Discipline Rules, framed thereunder. Reference in this regard has been made to General Order No. 1, dated 26.3.1998, issued by the Chairman, WAPDA, referred to above, in para 5 of this judgment. It is also stated that these petitions are not maintainable due to the bar as contained in Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1.973 and the Federal Service Tribunal has exclusive jurisdiction to adjudicate upon the matter with regard to the terms and conditions of services of the petitioners. On merits, the allegations have been denied. In Writ Petition No. 12383/99, the respondent-LESCO has taken a stand that the show-cause notice was validly issued and the allegations that the petitioner with mala fide intention recorded bogus reading with less units as compared with actual as shown by the meters, with intent to bargain with the consumers to reverse the meter and that on some occasions the petitioner made wrong calculations to deceive the S.D.O., amounting to gross misconduct, were correct and true. It is also asserted that in reply to show-cause notice, the said petitioner admitted his guilt and requested for a pardon. Similarly in Writ Petition No. 19705/99 the LESCO has taken a stance that the petitioner therein was rightly charged under Efficiency & Discipline Rules after completing the departmental formalities and he was afforded an opportunity of being heard in person and his reply was not found satisfactory. It is also mentioned that the petitioner therein was charged in seven (7) cases. In Writ Petition No. 23477/99 also, the allegations levelled by the petitioner have been denied by the LESCO and it is stressed that the petitioner was guilty of misconduct and, on receipt of a complaint, he was placed under suspension and the explanation was called for vide Order No. 206, dated 30.8.1999, which was duly replied by the petitioner and after the receipt of the reply, an enquiry committee was requested to be constituted which held a detailed enquiry, the petitioner participated in the enquiry and the enquiry committee held the petitioner to be guilty of misconduct and thereafter a final show-cause notice was served upon the petitioner which was duly replied by the petitioner and after considering the enquiry report, reply to the final show- cause notice and the earlier submitted explanations, the competent Authority awarded the punishment. These facts make it abundantly clear that besides legal issues, disputed questions of fact are also involved.
10. Similarly in Writ Petition No. 9812/99 the respondent-GEPCO has raised similar preliminary objections in regard to the maintainability of the Constitutional petition as raised by LESCO, which are mentioned above and on facts and on merits, the allegations levelled by the petitioner have been denied and it is urged that the petitioner has been reverted to his substantive post of Accounts Assistant on administrative grounds in the interest of company's work and the writ petition is otherwise premature because the disciplinary proceedings on account of serious misconduct committed by the petitioner have only yet been initiated and no final decision has been taken. It is also stated that in pursuance of the reversion order, the petitioner was relieved from the post of Divisional Accountant i.e.. 24.5.1999 and he submitted his arrival report to his substantive post of Accounts Assistant on 7.6.1999. It is further urged that the petitioner was not regularly promoted as Divisional Accountant and he was merely posted as Divisional Accountant (Emergency) and no right of regular promotion accrued in his favour and the posting order dated 26.2.1999 itself contains the condition to the effect that the selection was purely temporary, liable to reversion to his original post. It is further stated that the petitioner was served with a letter of explanation on account of committing serious misconduct as he was found involved in misappropriation of exchequer and a detailed report dated 18.5.1999 was submitted by the Assistant Budget and Accounts Officer, the explaration letter dated 7.5.1999 was given to the petitioner by the Executive Engineer, the allegations were further examined by the administration and he was found involved, the formal disciplinary proceedings have been initiated against him and are under progress. The written statement also contains the details of the misconduct committed by the petitioner.
11. The controversy in all these petitions primarily is in regard to the maintainability of these Constitutional petitions. The impugned orders have been passed by the officials of LESCO and GEPCO, which, as mentioned above, are companies limited by shares, registered under the Companies Ordinance, 1984. These companies are not statutory corporations. The Federal Government does not on any share in these limited companies. These are merely commercial organizations. The law of master and servant is fully attracted in these cases. The officials of these companies who have passed these orders are not public functionaries and the orders passed by them, therefore, cannot be challenged by the aggrieved persons under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The petitioners may, therefore, if they so desire, sue these companies for damages for their alleged illegal compulsory retirement, dismissal from service, removal from service or reversion in the rank. The stand taken by the LESCO and GEPCO that the orders passed by the officials of the LESCO and GEPCO can be challenged by the petitioner before the Federal Service Tribunal, is also incorrect because the orders passed by the officials of a public limited company, which is not even a statutory organization, cannot be challenged before the Federal Service Tribunal as the orders impugned before the Federal Service Tribunal have to be passed by a competent Authority and the 'competent Authority' means a departmental competent Authority. On the other hand, if the petitioners think that they are the employees of WAPDA and inspite of their secondment with LESCO and GEPCO, they have primarily remained employees of WAPDA, the Office Order of the Managing Director (Power), WAPDA, Lahore (referred to above in para 5 of this judgment) also points in the same direction, then the petitioners may, if they are so advised, approach the WAPDA Authorities, for their adjustment in the WAPDA organization because the WAPDA has not passed any orders of kicking them out of their regular services and after the failure of their departmental appeals and representations, if any, the petitioners can approach the Federal Service Tribunal against the orders passed by WAPDA because under Section 17(1B) of the Water and Power Development Authority Act, 1958, the petitioners are civil servants and can invoke the appellate jurisdiction of the Federal Service Tribunal against WAPDA. In this situation also, the remedy of Constitutional petitions under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, would not be available to the petitioners, due to the bar as contained in Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973.
12. In view of the above-mentioned, all these petitions are dismissed as not maintainable, with no orders as to costs.