Noor Muhammad Chandio (Petitioner) VS Federation of Pakistan & others (Respondent)

IN THE HIGH COURT OF SINDH,

Bench at Sukkur C. P. No. D – 821 of 2021

Noor Muhammad Chandio..................................................Petitioner Versus Federation of Pakistan & others.......................................Respondents Before:

Mr. Justice Muhammad Junaid Ghaffar Mr. Justice Zulfiqar Ali Sangi

Date of Hearing: 10-02-2022 Date of Decision: 10-02-2022

Mr. Sheeraz Fazal, Advocate for the Petitioner.

Syed Tanveer Abbas Shah, Advocate for SEPCO-Respondents. Mr. Muhammad Hamzo Buriro, D.A.G.

ORDER

Muhammad Junaid Ghaffar, J. – In response to order dated 13.01.2022, whereby, we had raised an objection regarding maintainability of instant petition, Counsel for the Petitioner has placed on record Order dated 20.08.2020, passed by a learned Division Bench at Circuit Court, Hyderabad in C.P.No.D-1679 of 2017 and has placed reliance on para-08 of the said Order and submits that the Petition against SEPCO is maintainable in view of the above Order.

2.We have perused the same and are of the view that the said decision is earlier in time as subsequently vide Judgment dated 21.12.2021, passed by the Hon’ble Supreme Court in Civil Appeal No.749 of 2021 (Pakistan Electric Power Company v. Syed Salahuddin & others), in identical facts, it has been held that no writ petition of an employee is maintainable against Power / Distribution Companies incorporated under the then Companies Ordinance, 1984, after bifurcation of Water and Power Development Authority (“WAPDA”) in terms of section 8(vii) of the WAPDA Act, 1958. The case before the Hon’ble Supreme Court was in respect of employees of Quetta Electric Supply Company (QESCO), to whom some relief was granted by the learned Baluchistan High Court and the Appellants (PEPCO) case was that since they do not any have statutory rules; hence, the employees cannot invoke the constitutional

jurisdiction of the High Court. As against this the response of the employees was that since the Pakistan WAPDA Employees (Efficiency & Discipline) Rules, 1978 have been adopted by the Board of Directors of QESCO; hence the said employees are governed by the statutory rules. The said contention has been repelled by the Hon’ble Supreme Court and the Court has been pleased to hold that mere adoption of such rules does not ipso facto makes such rules statutory in the context of QESCO. The relevant findings of the Hon’ble Supreme Court are as under:

10.There is yet another aspect of the matter. A specific objection regarding jurisdiction of the High Court to entertain the petition was raised which was dealt within the following manner:

"The petitioners being employees of QESCO/PEPCO are governed by statutory rules and as such the constitutional petition filed by the Respondents under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is maintainable.

We find that in the first place, there was no ground to hold that the Respondents were governed by the statutory rules. Admittedly, the Respondents by their own choice had joined QESCO which is a distinct and separate legal entity having been incorporated in the erstwhile Companies Ordinance, 1984 and has its own Board of Directors. Just by reason of the fact that QESCO had adopted existing rules of WAPDA for its internal use does not make such rules statutory in the context of QESCO. It was clearly and categorically held by this Court in Pakistan Defence Officers Housing Authority (ibid), Pakistan Telecommunication Company Ltd through its Chairman v. Igbal Nasir and others (PLD 2011 SC 132) as well as Pakistan International Airlines Corporation and others v. Tanveer ur Rehman and others (PLD 2010 SC 676) that where conditions of service of employees of a statutory body are not regulated by rules / regulations framed under the Statute but only by rules or instructions issued for its internal use, any violation thereof could not normally be enforced through constitutional jurisdiction and they would be governed by the principle of "master and servant". The learned High Court appears to have not been assisted properly in the matter and therefore omitted to notice the said principle of law laid down in the aforenoted case and reiterated repeatedly in a number of subsequent judgments of this Court.

11.Further, while assuming jurisdiction in the matter, the learned High Court omitted to appreciate that in case of an employee of a Corporation where protection cannot be sought under any statutory instrument or enactment, the relationship between the employer and the employee is governed by the principle of "master and servant" and in such case the constitutional jurisdiction

of the High Court under Article 199 of the Constitution cannot be invoked. We also find that although a judgment of this Court dated 07.03.2019 in the case of employees of IESCO was brought to the notice of the High Court in which a similar finding was recorded regarding non-availability of constitutional jurisdiction to the employees of IESCO, the Court appears to have misinterpreted and misconstrued the ratio of the same and therefore arrived at a conclusion which appears to be contrary to the settled law on the subject. We also notice that a judgment of a Division Bench of the same High Court escaped the notice of the High Court of Balochistan whereby it had clearly held that employees of QESCO could not invoke its constitutional jurisdiction. Further, a judgment of this Court rendered in the case of Chief Executive Officer PESCO, Peshawar (ibid) examined the question of jurisdiction of the High Court under Article 199 of the Constitution in matters relating to employees of PEPCO which is identically placed insofar as it was also incorporated under the Companies Ordinance, 1984 pursuant to bifurcation of various Wings of WAPDA into separate corporate entities and it came to the conclusion that since PEPCO did not have statutory rules, the High Court lacked jurisdiction to interfere in matters involving employment disputes between PEPCO and its employees. The ratio of the said judgment was clearly attracted to the facts and circumstances of this case, which appears to have escaped the notice of the High Court. We are therefore in no manner of doubt that in view of the fact that QESCO does not have statutory rules governing the terms and conditions of service of its employees, the relationship between the Appellant-PEPCO and Respondents No.1 and 2 was governed by the principle of "master and servant" and the Respondents could not have invoked the constitutional jurisdictional of the High Court for redressal of their grievances.

12.For the foregoing reasons, we find that the impugned judgment of the High Court dated 16.07.2020 rendered in C.P.No, 1233 of 2017 is unsustainable and is accordingly set aside. Consequently, the appeal is allowed”.

3.Similar plea has been taken before us that WAPDA Service Rules have been adopted by SEPCO, which are statutory rules; hence, petition is maintainable. However, the same has already been repelled by the Hon’ble Supreme Court in the above judgment. In view of hereinabove findings of the Hon’ble Supreme Court on identical facts, wherein it has been held that a constitutional petition of an employee is not maintainable against QESCO as it has no statutory rules of service and the relationship is to be governed by the principle of master and servant, whereas, the present Respondent (SEPCO) has been incorporated in a similar manner and has also merely adopted the WAPDA Service Rules for internal purpose and is also performing the same functions as QESCO, therefore,

no writ petition is maintainable against SEPCO filed by its employees in respect of their terms and conditions of service. It may be of relevance to further observe that this function test applied and settled by the Hon’ble Supreme Court is perhaps limited to a writ petition filed under Article 199 of the Constitution of Pakistan by an employee against companies like QESCO or for that matter SEPCO, and that too in respect of its terms and conditions of service. And this is for the reason that this aspect of the maintainability of petitions under the Constitution has all along already been settled by the Hon’ble Supreme Court in a number of decisions.

4.The petition is dismissed as not maintainable, whereas, the petitioner may avail alternate remedy, as may be available in law, for redressel of his grievance as agitated in this petition.

JUDGE

JUDGE

Ahmad