Judgment Sheet
PESHAWAR HIGH COURT,
PESHAWAR (Judicial Department)
WP No. 1796-P/2015.
JUDGMENT
Date of hearing. 04.12.2015
Petitioner (Peshawar Electric Supply Company Ltd)
By Mr. Abdul Rauf Rohaila, Advocate.
Respondents By M/S Hafiz Ihsan Ahmad, Advocate
for respondents No.1 and 2 and Mr.
Manzoor Khan Khalil, Deputy
Attorney General for respondent No.3.
******
QAISER RASHID KHAN, J.- Through the petition in
hand, the petitioner (Peshawar Electric Supply Company
Ltd.) has made the following prayers:
a) That Wafaqi Mohtasib (Ombudsman) under
the parameters contained in “the President
Order” has no jurisdiction to entertain any
application, petition and complaint and the
cognizance taken, order and findings
recorded by respondents No.1 and 2 against
PESCO are in excess of jurisdiction and
liable to be declared unlawful.
b) That PESCO is a separate distinct entity
working exclusively for the distribution of
electricity in Khyber Pakhtunkhwa
province in terms of Article 157 of the
Constitution having independent approved
tariff for the electricity consumers of
Khyber Pakhtunkhwa; therefore, the
cognizance taken, proceedings initiated,
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recommendations recorded and order
rendered by Wafaqi Mohtasib on the
complaints of individuals is absolutely in
excess of jurisdiction, abuse of process, is
coram non judice and cannot sustain, based
on unlawful assumption, nullity in law and
liable to be declared unlawful.
c) That PESCO is a limited Company
incorporated under the Companies
Ordinance, 1984 does not fall within the
meaning of “agency” as defined in clause
(1) of Article 2 of “the President Order” in
that PESCO is not a Ministry, Division,
Department, Commission or office of the
Federal Government or statutory body
corporation or other institution established
or controlled by the Federal Government.
d) That the judgment and ratio laid down by
the august Supreme Court in Chief
Executive Officer PESCO Versus
Muhammad Aftab-ur-Rehman (CP No.
1591/2011) has finally determined the
status of the petition having no connection
with the Federal Government nor
performing any functions on its behalf,
therefore, the Mohtasib has no jurisdiction
to interfere into the working of PESCO.
2. As per precise but relevant facts averred in the
instant petition, the Power Wing of WAPDA was made
responsible for generation, transmission and distribution
of electricity in Pakistan and due to the unsatisfactory
3
performance of WAPDA, its power wing was privatized
in Generation Companies (GENCOs), Transmission,
National Transmission and Dispatch Company (NTDC)
and Distribution Companies (DISCOs) which are being
supervised by Pakistan Electric Power Company
(PEPCO). Under decentralization policy, Area
Electricity Boards were constituted mainly in the
provinces to cater to the needs and requirements of the
public at large, consumers and employees; that it was
essential to establish an autonomous regulatory agency,
to introduce transparent and judicious economic
regulation in the power sector of Pakistan. National
Electric Power Regulatory Authority (NEPRA) was
created under the NEPRA Act, 1997 to ensure fair
competition and consumer, producer and seller
protection. Private Power and Infrastructure Board
(PPIB) established in 1994, to facilitate private
investors; that the Generation Companies (GENCOS)
generate electric energy for fulfilling the supply
demands in Pakistan which is the sources of electric
power in the country. Furthermore National
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Transmission and Dispatch Company (NTDC) primary
object is to carry out transmission which handles high
voltages of 220 KV to 500 KV for transmission
purposes; that Distribution Companies (DISCOs) with
132 KV or less and have the responsibility of electric
power distribution and there are nine independent
distribution companies in various areas and seeks
guidance from PEPCO; that Peshawar Electric Supply
Company (Pvt) Limited (PESCO) has been incorporated
under the Companies Ordinance, 1984 to cater to the
distribution of electricity in the province of Khyber
Pakhtunkhwa which has no statutory rules and gets
assistance from the government, WAPDA and PEPCO
rules and the employees who have opted to join
petitioner after decentralization and recruitment are
being looked after, supervised and managed exclusively
having full fledged departments and sections which are
dealing with its day to day affairs; that the petitioner is
regularly filing income tax return every year in
accordance with the provisions of Income Tax
Ordinance, 2001 whereas it is also registered under
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Sales Tax Act, 1990 and leviable taxes are being paid by
the petitioner exclusively in accordance with law and
WAPDA or Federal Government has no concern with
the gain, profit, loss and liabilities of PESCO; that
petitioners employees have CBA union raising demands
relating to better service facilities and the entire affairs
are managed, supervised and controlled by PESCO; that
the petitioner has no statutory rules and is still in the
process of strengthening its working. Nevertheless,
PESCO has reserved 20% quota for the children of its
employees vide office order dated 8.4.2004 when
making recruitment; that according to such policy,
employees children can be recruited on the posts falling
in BPS-1 to 9 only and qualification as well as standard
for recruitment i.e. age, educational, technical and
physical health under no circumstances is relaxed in
respect of PESCO regular staff and employees children
quota; that the petitioner also makes sure that Trade Test
is held and conducted for the posts of BPS-5 to 9
categories where applicable and further that merit of the
candidates who qualify the test is to be determined
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independently according to the priorities prescribed for a
particular post; that it is also observed by the petitioner
that the appointment against serial “a” and “b” of order
dated 8.4.2004 being amended from time to time is
made on regular basis being cases of death/ disability
due to electric shock or injury causing death/ disability
while performing official duty whereas recruitment
against remaining against the said quota is made on
contract basis as and when posts are available; that
PESCO has recruitment policy to fill any new post or
vacancy and has to follow the criteria required for the
purpose. Nevertheless there are technical, non-technical
jobs and positions which have different merits and
experience; that in pursuance of the Proclamation of the
fifth day of July, 1977 and in exercise of all powers in
that behalf, the President and Chief Martial Law
Administrator made an order for the Establishment of
the office of Wafaqi Mohtasib (Ombudsman) Order,
1983; that according to clause (1) of Article 2 of “the
President Order” agency has been defined to mean a
Ministry, Division, Department, Commission or office
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of the Federal Government or statutory body corporation
or other institution established or controlled by the
Federal Government but does not include the Supreme
Court, the Supreme Judicial Council, the Federal Shariat
Court or a High Court; that the legislature by virtue of
“The President Order” has categorized the power,
functions and jurisdiction of Mohtasib and incorporated
the same in Article 9 of the Constitution; that Article
212 of the Constitution of Islamic Republic of Pakistan
places specific bar inasmuch as no other court shall
grant an injunction, make any order or entertain any
proceedings in respect of any matter to which the
jurisdiction of such Administrative Court or Tribunal
extends; that respondents No.1 and 2 in the recent past
have started entertaining various applications,
complaints and petitions relating to the affairs and
working of PESCO, the petitioner tried its level best to
convince the learned Wafaqi Mohtasib (Ombudsman)
that PESCO is an autonomous and self-regulating
concern, business and institute working exclusively in
Khyber Pakhtunkhwa; that notwithstanding the
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reservations of the petitioner, a flood gate has been
opened of the complaints being entertained by learned
Wafaqi Mohtasib office at principal seat and regional
office, Peshawar mainly on the appointments on open
seats and employees children quota; that the stance of
the petitioner is that it is not the branch of WAPDA and
work independently; that the recruitment and related
affairs are dealt locally in Peshawar and further that no
deviation is made even when enrolment is made on
employees children quota but the submissions were
brushed aside, findings were given and direction were
issued to the petitioner to implement the decision; that
respondents No.1 and 2 in similar circumstances are
regularly entertaining the complaints of various persons
and constantly abusing the powers in the matter which
are outside the ambit of his jurisdiction and in negation
of the parameters of Constitution of Islamic Republic of
Pakistan and “the President Order”, hence the instant
petition.
10. The petitioner, through the present petition, has
expressed its grievance and of course anguish with the
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orders of the Worthy Wafaqi Mohtasib Islamabad
whereby he accepted the complaints of certain persons
directed against the petitioner/ company and thus by all
counts they were supposed to have been arrayed as
respondents in the present petition. However, the
petitioner preferred not to implead them in the array of
respondents unmindful of the fact that in the event of
any adverse order, the rights accrued to them consequent
to the orders of the Worthy Wafaqi Mohtasib in their
favour could be seriously jeopardized.
11. The main premise of the arguments of the learned
counsel for the petitioner/ company is that the worthy
Wafaqi Mohtasib was not within his powers to entertain
the complaints of the complainants against the
petitioner/company (number of complainants not before
the court barring a couple of them who have moved
their separate CMs for impleadment in this respect) and
that the petitioner does not fall within the definition of
‘Agency’ as per Sub-Article (1) of Article 2 of the
President’s Order, 1983. He next contended that PESCO
is an autonomous and self regulating concern
10
exclusively working in the Province of Khyber
Pakhtunkhwa and is not a branch of WAPDA and thus
its recruitments and related affairs are dealt with at the
local level at Peshawar. He also contended that no act of
maladministration is made out against the petitioner as
per clause 2 of Article 2 of the President’s Order, 1983
whereby the complaints could be entertained or
jurisdiction assumed by the worthy Wafaqi Mohtasib. In
support of his contentions, the learned counsel placed
reliance on “National Bank of Pakistan Karachi vs.
Wafaqi Mohtasib (Ombudsman), Karachi and
another” (PLD 1992 Karachi 339), “Pakistan
International Airlines Corporation Karachi vs. Wafaqi
Mohtasib and others” (1998 SCMR 841), “East West
Insurance Company Limited vs. Wafaqi Mohtasib and
3 others” (1999 MLD (Karachi) 3050), “Idris Ahmed
Rizwani vs. Federal Public Service Commission
through Secretary, Chughtai Plaza, Blue Area,
Islamabad and 3 others” (2000 SCMR 1889), “Allied
Bank of Pakistan Ltd. Vs. The Wafaqi Mohtasib
(Ombudsman) and others” (PLD 2001 Karachi 203),
11
“Aviation Authority vs. Wafaqi Mohtasib
(Ombudsman) and others” (PLD 2001 Karachi 304),
“Pakistan Intertional Airlines Corporation vs. Air
Master (Pvt) Limited and another” (PLD 2004 Karachi
77) and “Ch. Muhammad Yasin vs. Wafaqi Mohtasib
(Ombudsman) and others” (2013 CLC 1441). The
learned counsel thus contended that the worthy Wafaqi
Mohtasib did not have any jurisdiction under the law to
entertain the complaints of the complainants in the first
hand and then to allow them to the detriment of the
petitioner/ company.
12. The learned counsel representing the worthy
Wafaqi Mohtasib vehemently controverted the
arguments of the learned counsel for the petitioner and
contended that the worthy Wafaqi Mohtasib was well
within his powers to entertain the complaints of the
complainants as they fall within the definition of
maladministration as per President’s Order No.1 of
1983. He contended that the present petition is not
maintainable in view of the fact that the petitioner has
not approached the President of Pakistan through a
12
representation as per Article 14 of the Federal
Ombudsmen Institutional Reforms Act 2013 and instead
directly approached this court.
13. The learned Deputy Attorney General
representing the Federal Government supported the
arguments of the learned counsel for respondents No.1
and 2 and vehemently contended that the petition is not
maintainable as the petitioner has not availed of the
alternate and efficacious remedy provided under the Act
ibid.
Arguments heard and available record perused.
14. Admittedly, the petitioner is a public limited
company duly incorporated under the Companies
Ordinance 1984 with the Registrar of Companies way
back on 23rd April 1988. The Memorandum and Articles
of Association and the Certificate of Incorporation
produced at the time of arguments are marked as “A”
and “B” respectively. It goes without saying that any
person filing a suit or a petition on behalf of a Private
Ltd Company or for that matter a Public Ltd Company
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should either be one of its Directors or its Secretary duly
authorized and empowered by a special resolution of the
Board of Directors to exercise powers to institute,
conduct or defend any legal proceedings and in the case
in hand, to file a writ petition. In this respect reliance is
placed on “Khan Iftikhar Hussain Khan of Mandot Vs.
M/S Ghulam Nabi Corporation Limited Lahore” (PLD
1971 SC 550) and “M/S Razo (Pvt) Private Limited Vs.
Director, Karachi City Region Employees Old Age
Benefit Institution” (2005 CLD 1208 Karachi) and
“Hasnain Cotex Limited through its Director vs. Jasim
Khan, Proprietor M/S Suzuki Frontier Motor East
Circular Road, D.I.Khan” (PLJ 2012 Peshawar 248).
15. The petitioner has made reference to letter
No.368-69/ED/PESCO/BoD dated 10.3.2010 (Annexure
“A” of the petition) addressed by the Company
Secretary PESCO Peshawar to the HR and Admn
Director PESCO Headquarter Peshawar which in turn
refers to the decision of the Board of Directors PESCO
in its 50th meeting held on 4.3.2010 to be a ‘Resolution’
sufficient enough in favour of the Director (Legal)
14
PESCO Peshawar to institute the present petition. In this
respect it would be relevant to refer to para 4 of the said
letter which is reproduced as below:
“4. To accord approval for authorization of
Power of Attorney to institute and defend
cases in the Courts of Law on behalf of
PESCO.
Resolution
Board accorded approval for authorizing
CEO PESCO for further delegation of
powers of Attorney to HRD, Directors,
Manager Legal and Field Managers, PDs in
their area of jurisdiction for institution and
defend cases in the Court of Law, Tribunals
& FTO on behalf of PESCO in the interest
of the Company.”
Though as per the language of the said
‘Resolution’, the Board had authorized the CEO PESCO
for further delegation of powers of attorney to HRD,
Directors, Manager Legal etc in their area of jurisdiction
for institution and defend cases in the court of law on
behalf of PESCO. However, in the present case, we do
not find any written authorization on behalf of the CEO
PESCO in respect of further delegation of powers of
attorney to the Director (Legal) PESCO Peshawar to in
turn sign power of attorney in favour of his counsel.
Thus signing of power of attorney by the Director
(Legal) PESCO in favour of his counsel can at best be
15
termed to be his individual act but certainly not on
behalf of the petitioner/ company. More so, the said
Director (Legal) PESCO Peshawar did not turn up in the
High Court in support of the averments made in the
petition but instead one Muhammad Shakeel Asstt:
Manager, Labour and Law PESCO Peshawar has given
his sworn affidavit in respect of the contents of the
petition. Being a public limited company, the petitioner
could not file the instant petition without a proper
resolution of the Board of Directors in favour of either
the deponent namely, Muhammad Shakil, or in favour
of the Director (Legal) PESCO Peshawar as the latter
did not have the authorization to institute the petition
without a delegation of the powers of attorney in his
favour by the CEO PESCO as per letter dated
10.3.2010. It is by now settled that when law requires a
thing to be done in a particular manner, then it has to be
done in that manner only and no other manner of doing
such an act can be resorted to. Reliance in this regard is
placed on “Hakim Ali vs. Muhammad Saleem and
others (1992 SCMR 46).
16
16. The petitioner is aggrieved of the orders of the
worthy Wafaqi Mohtasib whereby he entertained certain
complaints of the complainants against the petitioner/
company. As per Sub-Article (2) of Article 2 of the
President’s Order No. I of 1983 in respect of the
Establishment of the Office of Wafaqi Mohtasib
(Ombudsman).
“Mal-administration” includes:
(i) a decision, process, recommendation, act of
omission or commission which:
(a) is contrary to law, rules or
regulations or is a departure from
established practice or procedure,
unless it is bona fide and for valid
reasons; or
(b) is perverse, arbitrary or
unreasonable, unjust, biased,
oppressive, or discriminatory; or
(c) is based on irrelevant grounds; or
(d) involves the exercise of powers or
the failure or refusal to do so, for
corrupt or improper motives, such
as, bribery, jobbery, favouritism,
nepotism and administrative
excesses; and
(ii) neglect, inattention, delay, incompetence,
inefficiency and ineptitude, in the
administration or discharge of duties and
responsibilities.”
17. It has also been held by the august apex court in
“Federation of Pakistan through Secretary,
Establishment Division Government of Pakistan,
17
Islamabad vs. Muhammad Tariq Pirzada and others”
(1999 SCMR 2189) that the Office of Wafaqi Mohtasib
(Ombudsman) has been created in order to diagnose,
investigate, redress and rectify any injustice done to a
person through maladministration. Thus the grievances
of the complainants squarely fall within the domain of
worthy Wafaqi Mohtasib.
18. The definition of “Agency” in the President’s
Order No. I of 1983 has been further elaborated in Sub-
Article (a) of Article 2 of the Federal Ombudsmen
Institutional Reforms Act, 2013 which is as below:
“(a) “Agency” means, the Agency defined in
the relevant legislation and in relation to the
Establishment of the Office of Wafaqi
Mohtasib (Ombudsman) Order, 1983
(P.O.No.1 of 1983) shall include an Agency
in which the Federal Government has any
share or which has been licensed or
registered by the Federal Government and
notified by the Federal Government in the
Official Gazette.”
19. During the course of arguments, the learned
counsel for worthy Wafaqi Mohtasib produced
notifications in respect of various Electric Supply
Companies including Quetta Electric Supply Company
18
(QESCO), Faisalabad Electric Supply Company
(FESCO), Islamabad Electric Supply Company
(IESCO), Lahore Electric Supply Company (LESCO)
and, of course, the petitioner/ company namely,
Peshawar Electric Supply Company (PESCO) dated
1.11.2014 together with a Distribution License granted
to PESCO by National Electric Power Regulatory
Authority (NEPRA) Islamabad on 12th August, 2013.
Copies of the same are marked as C, D, E, F, G, H and
I respectively. Such notifications also put to naught the
contention of the petitioner to be a self-reliant, self-
regulating and autonomous concern. Certainly the
Federal Government through NEPRA exercises over all
control over PESCO so much so that the Chief
Executive of the petitioner/ company assumes the office
after a nod by the Federal Government or so to say
works in his office at the pleasure of the Federal
Government. Mere shrugging off the shoulders by the
petitioner / company cannot take it out of the domain of
NEPRA or the overall control and watchful eyes of the
Federal Government. As such PESCO squarely falls
19
within the definition of “Agency” as per Sub-Article (a)
of Article 2 of the Federal Ombudsmen Institutional
Reforms Act, 2013.
20. Now coming to another aspect whereby the
petitioner/ company without availing of its alternate and,
of course, an efficacious remedy under the law has
directly opted to approach this court.
Both Article 32 of the President’s Order No.1 of
1983 and Article 14 of the Federal Ombudsmen
Institutional Reforms Act, 2013 provide for
‘Representation’ which may be made by an aggrieved
party to the President against some decision or order of
an Ombudsman. For ready reference, Article 14 of the
Act ibid is reproduced as under:
“14. Representation.- (1) Any person or party
aggrieved by a decision, order, findings or
recommendations of an Ombudsman may file
representation to the President within thirty days
of the decision, order, findings or
recommendations.
(2) The operation of the impugned order,
decision, findings or
recommendations shall remain
suspended for period of sixty days, if
the representation is made as per
sub-section (1).
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(3) The representation shall be addressed
directly to the President and not
through any Ministry, Division or
Department.
(4) The representation shall be processed
in the office of the President by a
person who had been or is qualified
to be a judge of the Supreme Court
or has been Wafaqi Mohtasib or
Federal Tax Ombudsman.
(5) The representation shall be decided
within ninety days.”
However, instead of availing of such remedy by
preferring a representation to the President within 30
days, the petitioner/ company has directly approached
this court through the present petition. In this regard, the
Hon’ble Supreme Court has held in a number of cases
that direct approach to the High Court by invoking the
writ jurisdiction could not be resorted to without
availing of the alternate and efficacious remedy under
the law. Reliance is placed on “Water And Power
Development Authority and others vs. Commissioner,
Hazara Division and others” (1992 SCMR 2102),
“Messrs Shifa Medicos vs. Wafaqi Mohtasib
(Ombudsman) and others (2003 SCMR 928) and
“Pakistan Railways through General Manager,
21
Railway Headquarters Office, Lahore vs. Abdul Bari
Khan and others” (PLD 2004 SC 127).
In view of the foregoing discussion, we hold the
present petition to be both meritless as well as not
maintainable before this court and hence the same is
dismissed.
Announced:
04.12.2015
J U D G E
J U D G E
*Qaseem*