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

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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

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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),

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“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

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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)

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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

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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).

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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,

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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

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(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

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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,

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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*