2018 PLP 9 (PLC N)

Through the instant Appeal, the Appellant has challenged the validity of order dated 04.08.2017 passed by the learned Single Judge in W.P. No.25166/2017 through which as many as 7 other writ petitions including W.P. No.21612/2017 filed by the Appellant seeking his promotion, were dismissed.

2. Learned counsel for the Appellant inter alia submitted that the impugned order is against law and facts; that the Appellant is an Ex-WAPDA employee and has protection of WAPDA Rules which are statutory in nature, therefore, the Constitutional petition before this Court is competent; that the learned Single Judge has not taken into consideration the fact that the Companies viz: MEPCO and PEPCO etc. fall within the definition of person as contemplated in Article 199(5) of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), as such challengeable before this Court through Constitutional petition; that the Appellant has been condemned unheard by the learned Single Judge, as such the impugned order is liable to be set aside.

3. We have heard the arguments of the learned counsel for the Appellant and gone through the record made available.

4. While adverting to the last contention of the learned counsel for the Appellant that the Appellant has been condemned unheard by the learned Single Judge, the record vividly reflects that in the impugned order the attendance of the learned counsel for the Appellant (Mr. Salman Riaz Chaudhry, Advocate in W.P. No.21612/2017) has been marked and he has been heard along with the lawyers of other parties, hence he cannot said to be condemned unheard by the learned Single Judge.

5. So far as the issue of maintainability of the Constitutional petition against the above referred Companies is concerned, in this regard it is pointed out that the Appellant himself mentioned in the petition that he was Ex-employee of the WAPDA as in the year 1998 the Area Electricity Board of WAPDA were converted into different Companies and the services of the Appellant were transferred from WAPDA to Multan Electric Power Company (MEPCO)/the Respondent No.3. The learned Single Judge in the impugned order, while dilating upon the issue of maintainability of the petition, has observed that there is no second view that these Companies are not statutory corporations and mere by adopting the statutory Rules by the Companies these Rules could not be said to be statutory Rules and it is settled proposition of law that this Court has no jurisdiction against the employees of Companies and also the employees serving in any statutory corporation not having statutory Rules, except if they are proceeded under a statute. In this case the Appellant challenged the orders dated 28.03.2017 and 19.04.2017 passed by the Respondent No.2 which is infact the office order passed in pursuance of the recommendations of the Respondent No.2 Selection Board during its meeting held on 04.02.2017. The learned Single Judge has strengthen the impugned order by citing case titled Humayun Akhtar and others v. Chairman, Water and Power Development Authority, WAPDA House, Lahore and others (PLJ 2008 Tr.C. (Services) 374) and Hyderabad Electricity Supply Company v. Mushtaq Ali Brohi (2010 PSC 1392).

6. In this view of the matter, admittedly the Company (MEPCO), of which the Appellant is an employee, has no statutory Rules and the relationship between the Appellant and the Respondents is that of master and servant. It is an established principle that in such like cases the Constitutional petition is not maintainable. The Hon'ble Division Bench of this Court in I.C.A. No.1061/2013 titled Kamran Ahmad v. WAPDA and others has held as under: "In the light of judgments mentioned supra, it is evidence that services of the Appellant are governed by non-statutory rules irrespective of his status that he is a regular employee, therefore, he is governed by the principle of Master and Servant, hence the jurisdiction of this Court vis- -vis enforcement of terms and conditions of service is barred."

7. Furthermore, this Court in case titled Kamran Ahmed v. WAPDA and others (2014 PLC (C.S.) 332) has held that to be a person within the meaning of Article 199(5) of the Constitution and being amenable to constitution jurisdiction is one thing and to enforce the terms and conditions of service through constitutional jurisdiction is altogether a different thing. Now coming to the question, whether the terms and condition under which the service of the petitioner is governed including 3.1(1)(c) and 3.1(1)(d) of Rules, 1965 are statutory in nature and whether constitutional jurisdiction can be invoked to enforce these terms and conditions of service. Applying the aforesaid principles of law to the case of the petitioner, I feel no hesitation in drawing inference that petitioner is not governed under statutory rules hence terms and conditions of contract of his service are not enforceable through constitutional petition. ...... "

8. Moreover, reliance is also placed on the case titled Kamran Ahmed v. Chief Executive GEPCO and others (2017 PLC (C.S.) 900).

7. We fully agree with the findings of the learned Single Judge that the Appellant is employee of the Company (MEPCO) and is to be dealt with Company's own Rules and Instructions approved by the Board of Directors having no statutory Rules at all.

8. In view of above, we see no illegality or legal infirmity in the impugned order which has been passed by the learned Single Judge in consonance with the spirit of law, as such does not warrant any interference by us. Consequently, the instant Appeal is devoid of any merit and is accordingly dismissed in limine. MH/M-161/L Appeal dismissed.