P D 1 (PLP)

MUNAWAR AHMED MIRZA, C. J.--The Federal Government on 15th of September, 1973 promulgated Hydrogenated Vegetable Oil Industry (Control and Development) Act, 1973 (LXV of 1973) for regulating operation and future development of Vegetable Oil Industry. In pursuance thereof Ghee Corporation of Pakistan was established and a unit in the name and style of Chiltan Ghee Mill was also installed at Sirki Road, Quetta. Recently under the policy for privatisation of industries Hydrogenated Vegetable Oil Industry (Control and Development) (Second Amendment) Act XI 1992 was enforced on 28th July, 1992 which regulates transfer of rights and proprietary interest of Vegetable Oil Industries. Later Privatisation Commission of Pakistan was established to deal with and determine matters concerning disposal of said units and its by auction after due publicity and affairs connected therewith. It is an admitted position that auction bids for selling Chiltan Ghee Mills Corporation, Quetta to Private Sector were invited by Privatisation Commission (respondent No.1). Balochistan Trading Company (respondent No.3) being successful was transferred management and control of Chiltan.Ghee Mills, Sirki Road, Quetta on the terms specified in contract dated 8th of July, 1992 which inter alia,, contained following condition regarding rights, liabilities and retention of existing employees:-- (4) According to Article 18.5 of the "Instructions to Bidders" the successful bidder shall take over the entire personnel (except the Managing Director/Chief Executive) under their management and their service matters shall continue to be dealt with in accordance with the relevant laws in force in Pakistan. The services of employees of the Project shall not be terminated for 12 months from the date of takeover. The Buyer, hereby indemnifies the seller any claim or liability in . respect of any employee whether presently in service or terminated before the date of this agreement. If there is any case pending in any Court in respect of any employee against the Company or the seller, the buyer shall be solely responsible in respect of that litigation and shall hold the seller indemnified against all such claims and liabilities. The - buyer undertakes to pay legal dues - such as Provident Fund, Gratuity, etc., due to an employee of the Company when he/she eventually retires or leaves service. The buyer also undertakes to share the liability arising on account of Golden [land Shake to the extent of fifty per cent. to be certified by Privatisation Commission as per procedure laid down by the Commission. In case the total liability of the seller in no case shall exceed 20% of the sale proceeds from the Company." It may be seen that petitioners -who undisputedly were employees of Chiltan Ghee Mills continued performing duties in said Organization but their services were terminated on 29th of October, 1992. Feeling aggrieved from the same present petitions were filed claiming following relief.-- "It is accordingly respectfully prayed that the intended action of termination of petitioners' services on the part of respondent No.3 through impugned order dated 29-10-1992 may kindly be declared as totally illegal and without lawful authority. It may also be declared that respondent No.3 is legally bound to retain the petitioners/employees for at least 12 months in pursuance of agreement executed by it with respondent No. 2 through respondent No.1 and respondents Nos.1 and 2 are under legal obligation to see its implementation. Any other relief which the Court may think fit and proper in the circumstances of the case may also be granted in favour of petitioners and against the respondents." Privatisation Commission, Ministry of Finance (respondent No.1) filed their counter-affidavit on 2-12-1992 wherein maintainability of petition has been challenged. However, it has been asserted that respondent No.3 being transferee organization was obliged to retain the employees for a period of' 12 months from the date of its taking over. This respondent has supported claim of petitioners to the extent that their termination by respondent No.3 was arbitrary and illegal. Respondent No3 emphatically repudiated the claim and filed detailed counter-affidavit on 16-11-1992. Maintainability of petition was challenged on the basis of various preliminary objections. It was pleaded that transferee organization has no obligation for retaining them in service because having received the amount of gratuity and provident fund etc. they ceased to be employees of Chiltan Ghee Mills, Quetta and thus were not entitled to service rights as claimed in the petition. Arguments were addressed by learned counsel for parties at length. Main question requiring consideration would be whether transferee organization had obligation to retain petitioners for a minimum period of 12 months after taking over its control, if so whether remedy by invoking writ jurisdiction can be availed by them.. - It may be seen that clause (4) of Act XI of 1992 explicitly prescribes competency of Federal Government to impose limitations providing terms and conditions of employees of privatized establishment, in public interest. It presupposes that agreement drawn between the parties in pursuance of clause (4) creates rights and obligation s between Federal Management of transferee organization and existing employees. Accordingly petitioners have acquired legal right by operation of law and execution of agreement dated 8-7-1992 as rightly conceded by learned Standing Counsel appearing for Federal Government and learned Advocate of Privatization Commission. Respondent No.3 the Transferee Organization was bound to retain all petitioners for twelve months or pay their emoluments for said period. Apparently petitioners' termination from service contravenes categoric: commitment of transferee organization as contained in terms and conditions above-referred. However, important feature requiring consideration arises whether declaration sought in this Constitutional petition against action taken by respondent No.3 which is admittedly a private limited Company, can at all be granted while exercising jurisdiction under Article 199 of the Constitution. The answer would definitely be in negative. Although ostensibly the-,c are three respondents i.e. Privatization Commission, Ministry of Defence, Government of Pakistan and Ghee Corporation of Pakistan but relief sought turns against only private limited Company. This fact is further substantiated by the stand taken by abovementioned two Government departments. Thus wen-known principle, that when action cannot be taken directly should not be allowed, indirectly applies on all fours in this matter. Even bare reading of Article 199 suggests that writ jurisdiction ran be invoked only in exceptionable circumstances where ordinary legal remedies are not adequate for striking down excess of authority, failure to exercise jurisdiction or patent contravention concerning express provision of law; by persons performing functions connected with affairs of Government. Evidently breach of obligation between private' parties cannot be got remedied by invoking Constitutional jurisdiction. For benefit reference can be conveniently made to the observations in cases (i) Syeda Sayeeda Banoo and another v. Province of East Pakistan and others (PLD 1969 Dacca 352) and (ii) Muhammad Aslarn v. National Shipping Corporation, Karachi through Chairman and others PLD 1979 Kar. 246). Similarly it is well settled that relations between employer and employee primarily based on contract are regulated on the principle of master and servant. Therefore, Constitutional jurisdiction for remedying their termination, dismissal or other service rights cannot be invoked. If authority is needed reference can be made to the following reported judgments:-- (1) Muhammad Yousuf Shah v. Pakistan International Airlines Corporation (PLD 1981 SC 224). (2) The Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi (PLD 1984 SC 170). (3) Zainul Abidin v. Multan Central Cooperative Bank Ltd., Multan (PLD 1966 SC -445). (4) The Chairman, East Pakistan Industrial Development Corporation, Dacca and another v. Rustom Ali and another (PLD 1966 SC 848). (5) Lt.-Col. Shujauddin Ahmad v. Oil and Gas Development Corporation . (1971 SCMR 566). (6) Qari Yar Muhammad v. Aniuman-e-Islamia (1987 SCMR 1776). (7) Ch. Abdul Rashid v. Capital Development Authority, Islamabad and others (PLD 1979 Lah. 803). (8) Anwar Hussain v. Agricultural Development Bank of Pakistan and others (PLD 1984 SC 194). (9) Sindh Road Transport -Corporation through its Chairman v. Muhammad Ali G. Khokhar (1990 SCMR 1404). (10) Abdul Rab Jaffery v. Rashid D. Habib and others (1990 MLD 546). (11) Raziuddin v. Chairman, Pakistan International Airlines Corporation and 2 others (PLD 1992 SC 531). (12) Capt. Rafiq Ahmad Shaikh and others v. Pakistan through the Secretary, Ministry of Defence, Islamabad and others (PLD 1992 Kar. 190). For the above reasons writ is declined. Petitioner shall however, be free to seek appropriate remedy before forum of competent jurisdiction. In the peculiar circumstances of the case parties are left to bear their own costs. AA./437/0 Petition dismissed.