Arsal Shahzad Khan etc. vs Gop etc.

Stereo. H C J D A 38 Judgment Sheet

IN THE LAHORE HIGH COURT,

MULTAN BENCH, MULTAN.

(JUDICIAL DEPARTMENT)

Writ Petition No. 9454 of 2020

Arsal Shahzad Khan, etc. Vs. The Government of Punjab, etc.

JUDGMENT

Date of Hearing 07.10.2021 Petitioners by: Mr. Azeem-ul-Haq Peerzada, Advocate. Respondents No.1 Mr. Muhammad Shahid Riaz, Assistant Advocate to 3 by: General with Kamran Faiz, representative of the Respondents.

Respondents No.4 Mr. Muhammad Ali Qureshi, Advocate. & 5 by:

MUHAMMAD RAZA QURESHI, J. Through this Writ Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the Petitioners have challenged their Orders of termination dated 30.06.2020 and 03.07.2020.

2.The facts necessary for the adjudication of this Writ Petition are that in the year 2015, the Punjab Masstransit Authority Act, 2015 was promulgated to establish Punjab Masstransit Authority for purposes of construction, operation and maintenance of mass transit system in the major cities of the Punjab to provide safe, efficient and comfortable urban transportation system as well as ancillary matters. In the year, 2017, Punjab Masstransit Authority established the mass transit system (“MTS") in Multan City wherein the Petitioners were appointed at their respective posts. The Petitioners were recruited on contract basis by Prime Human Resources Services (Pvt.) Ltd. (the “Respondent No.4”) who provided its services to Punjab Masstransit Authority. According to the contents of the Petition, the Petitioners due to non-disbursement

of their salaries participated in a protest. On account of said protest, they were issued suspension letters initially and subsequently their services were terminated through the Impugned Orders. Hence, instant Petition and through which the Petitioners have sought setting aside of the Impugned Orders of their termination and a direction to the Respondents to regularize their services.

3.Learned counsel for the Petitioners submits that the Impugned Orders of termination of the Petitioners have been passed without providing them an opportunity of hearing and that since they were contract employees and performing their duties for the last three years continuously, so their services are liable to be regularized under the Punjab Regularization of Service Act, 2018. According to the learned counsel, the Petitioners have a vested right to remain in service. The learned counsel submits that Respondents No. 4 & 5 fall within the purview and definition of a ‘person’ as defined by Article 199(5) of the Constitution, therefore, this Writ Petition is maintainable against the Respondents No. 4 & 5.

4.Conversely, the learned Law Officer and learned counsel for the Respondents No.4 & 5 submit that this Writ Petition is not maintainable as the Petitioners are employees of Respondent No.4, which organization being a head-hunting company provides its services to various organizations including the Punjab Masstransit Authority and the Petitioners performing their services in Punjab Masstransit Authority are employees of the Respondent No.4 who pay their salaries and all their dues as per the contract. Further adds that in the garb of this Petition, the Petitioners are actually seeking the relief which amounts to forcing an unwilling employer to put Petitioners into service and that the relief prayed for is barred by law. According to them, at the maximum, the services of the Petitioners are governed by the principle of master and servant relationship and since their employments were not governed by the statutory rules, therefore, Petitioners are only governed by the rule

of master and servant and they cannot invoke the Constitutional jurisdiction of this Court. It is further submitted that Respondents No.4 & 5 who are private persons and not performing their functions in connection with the Federation or a Province, therefore, on this score, this Petition is also not maintainable against them and prayed for dismissal of instant Petition.

5.This Court has examined the record and heard the valuable arguments of the learned Assistant Advocate General and learned counsel for Respondents No.4 & 5. The suspension Orders and charge sheets dated 10.06.2020 reflect that the same have been issued by the General Manager, HR Operation and General Manager, Verification/ Recruitment & Account Management of Respondent No.4. Likewise, the Impugned termination letters also demonstrate that the same have been issued under authority of Respondent No.4 which is a private person incorporated as a private limited company under applicable provisions of law. By any stretch of imagination, the said Respondent No.4 being a private person cannot be construed as a person performing functions in connection with the affairs of Federation or a Province as merely by acting as a head-hunter for Punjab Masstransit Authority and Respondent No.4 by providing its services does not create nexus or relationship with the Punjab Masstransit Authority, which relationship otherwise, is contractual in its nature and scope. This Court does not even need to go into the question whether the employees of Punjab Masstransit Authority are governed by the statutory or non-statutory rules as the Petitioners admittedly are not employees of said Authority and they cannot be allowed to invoke the Constitutional jurisdiction of this Court.

6.The services of the Petitioners are governed by the rule of the master and servant and the subject matter appointments or termination thereof are not amenable to the Constitutional jurisdiction of this Court. The Petitioners being contract employees

that too of a private person, even otherwise, have to show their legal right and entitlement emanating from a law otherwise they cannot even seek their entitlement for regularization by invoking the Constitutional jurisdiction of this Court. The relief sought or prayed for in this Petition is otherwise barred by law as even the Court of plenary jurisdiction is barred to grant relief to the Petitioners under Section 21 of the Specific Relief Act, 1877 and the contracts whose enforcement has been sought are dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the Court cannot enforce specific performance of material terms. Obviously, the Court of plenary jurisdiction and this Court in exercise of its Constitutional jurisdiction cannot direct an unwilling employer to retain the Petitioners.

7.So far as the grounds raised in this Petition and arguments of the learned counsel for the Petitioners, that Respondents No.4 & 5 are performing their functions in connection with Federation or a Province, therefore, they fall within the definition of a ‘person’ under Article 199 (5) of the Constitution, it is an admitted position that the Petitioners are not employees of Punjab Masstransit Authority rather they are employees of Respondent No.4 who only acts as head-hunting company. Merely providing human resource services to an Authority constituted under the provisions of law does not make the Respondent No.4 as a person performing functions in connection with the affairs of the Federation or a Province or their contractual nexus cannot be construed that the Petitioners are employees of Punjab Masstransit Authority.

8.The test of law in this regard is very high and said test as defined by the Hon’ble Supreme Court of Pakistan is called ‘function test’. Only those persons who pass the ‘function test' can be considered amenable to the Constitutional jurisdiction of this Court. The private organizations or the persons as distinguished from government or semi-government agencies and functionaries

cannot be regarded as persons performing functions in connection with Federation or Province simply for the reason that their activities happen to be regulated by law made by the State. Accordingly, a joint-stock company, incorporated under the Companies Act, for the purposes of carrying on commercial or industrial activity for the benefit of their shareholders cannot be regarded as a person performing State functions just for the reasons that its functioning is regulated by law or that the distribution of its services to a government department who is subject to government control in the public interest.

9.The primary test must always be whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some public power; whether the control of the organization vests in a substantial manner in the hands of government; and whether the bulk of the funds is provided by the State. If these conditions are fulfilled then the person, including a body politic or body corporate, may indeed be regarded as a person performing functions in connection with the affairs of the Federation or a Province; otherwise not and that’s why the Hon’ble Supreme Court of Pakistan in the cases reported as Pakistan Olympic Association through President and others v. Nadeem Aftab Sindhu and others 2019 SCMR 221 and Pakistan Red Crescent Society and another v. Syed Nazir Gillani PLD 2005 SC 906 held that the Pakistan Olympic Association and Pakistan Red Crescent Society despite using the name Pakistan are private entities who were body corporate and not amenable to the Constitutional jurisdiction of this Court under the Constitution, therefore, it is imperative that person against whom the Writ Jurisdiction is sought to be invoked has to pass the ‘function test’.

10.In the case of Pakistan Red Crescent Society supra, the Hon’ble Supreme Court of Pakistan was pleased to hold:

“17. A careful perusal of the above mentioned observations would reveal that it has been decided in a categoric manner that the Pakistan Red Crescent Society cannot be treated as a person performing function in connection with the affairs of the Federation or Province. We are conscious of the fact that the President of Pakistan is the President of the Pakistan Red Crescent Society and Minister Health, Government of Pakistan, is the ex officio Vice-President but it would have no substantial bearing on the legal character of the Society because no budget allocation has been made by the Federal Government and no share capital is involved. The Pakistan Red Crescent Society generates its income from the donation made by public and allocation from International Agencies having a charitable character. Occasionally the Pakistan Red Crescent Society may get some "grant" and "aid" from Government but it cannot be equated to that of "regular budget allocation" and thus its independent entity remains unaffected. Besides that the Managing Body patrons are required to contribute Rs. 10,000, Life Time Members Rs.500 and the Annual Members and Associate Members contribute Rs.12 and Rs.2 per annum respectively. The Society may request for foreign assistance and donation usually made by various Governments at the time of emergency. Besides that to raise funds, the Society holds Red Cross weeks, raffles Meena Bazaar and general appeals soliciting public donations. It is pertinent to point out that under section 5 of the Act the management and control of the affairs of the Society exclusively vests in A the Managing Body. Basically the Society has its genesis in Geneva Convention which was initially held on October 26, 1863 which was followed by Hague Convention and it was universally agreed that Red Cross/Red Crescent Societies are going to be absolutely non-political and they would have access to take care of the sick and wounded without any hindrance. In the light of what has been mentioned hereinabove, the only inescapable conclusion would be that Federal or Provincial Governments have nothing to do with the affairs of the Society and vice-versa.”

11.Therefore, merely by providing human resource services to the Punjab Masstransit Authority by Respondent No.4 by virtue of its nexus with the Authority cannot clothe the Respondent No.4 with the status of a ‘person’ and it will remain a private institution for all intents and purposes and its employees’ service grievances are not amenable to the Constitutional jurisdiction of this Court. Therefore, this Petition is not maintainable.

12.So far as the question of performing functions in connection with the affairs of the Federation or a Province the phrase is meant for the performance of sovereign functions by a person. It is clear that the reference is to governmental or State functions, involving in one forum or another, an element of exercise of public power. The functions may be the traditional police functions of the State,

involving the maintenance of law and order and other regulatory activities; or they may comprise functions pertaining to economic development, social welfare, education, public utility services and other State enterprises of an individual or commercial nature. Ordinarily, these functions would be performed by persons or agencies directly appointed, controlled and financed by the State, i.e., by the Federal Government or a Provincial Government. Reliance in this regard is placed upon the cases reported as Salahuddin and 2 others v. Frontier Sugar Mills & Distillery Ltd, Tokht Bhai and 10 others PLD 1975 SC 244 and Pakistan Defence Officers’ Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed 2013 SCMR 1707.

13.In view of what has been discussed above, it is declared that mere contractual arrangement of Respondent No.4 with Respondent No.1/ Punjab Masstransit Authority does not clothe the Respondent No.4 as the person performing functions in connection with the affairs of the Federation or the Province and service disputes of its employees are not amenable to the Constitutional jurisdiction of this Court. Consequently, this Writ Petition being incompetent and devoid of any merit is dismissed with no Order as to costs.

MUHAMMAD RAZA QURESHI

JUDGE

*M. Arshad *