No vested Right for Appointment in Service

 PLJ 2017 Islamabad 101

Present: Shaukat Aziz Siddiqui, J.

PAKISTAN INTERNATIONAL AIRLINES CORPORATION (PIAC)--Petitioner

versus

FEDERATION OF PAKISTAN, etc.--Respondents

W.P. No. 2808 of 2013, decided on 18.11.2016.

Wafaqi Mohtasib (Ombudsman) Order, 1983--

----Arts. 9 & 29--General Clauses Act, 1897, S. 24-A--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Mal-administration--Order of ombudsman--Post of management trainee officer--Recruitment--Offer letters were issued--No vested right for appointment in service--Provincial quota--Jurisdiction--Question of--Whether ombudsman while recording findings fell in error or not--Determination--Ombudsman could have exercised jurisdiction, if any allegation of mal-administration was made; therefore, complainant should have been rejected on that score alone--President issued direction to accommodate complainant in next available training--Decision on representation is not based on finding of mal-administration--When Ombudsman had no jurisdiction to entertain complaint then President was also not vested with any authority to issue directions to “accommodate”--Petition was allowed.  [Pp. 105 & 106] A & B

Mr. M. Umer Khan Vardag, Advocate for Petitioner.

Mr. Arshad Mehmood Kiyani, learned DAG and Mr. Muhammad Bashir Khan, Advocate for Respondent No. 2.

Date of hearing: 4.11.2016.

Judgment

Petitioner, PIAC invoked the constitutional jurisdiction of this Court by way of filing instant petition with the following prayer:--

“It is therefore, respectfully requested that this writ may please be allowed and the impugned order dated 28.09.2012 may graciously be declared to be illegal, void and of no legal consequence and may please be set aside.

It is further requested that meanwhile the operation of the impugned order dated 28.09.2012 may please be suspended in the interest of justice.”

AND presented the facts as under:--

2.  That Respondent No. 2 applied for the post of Management Trainee Officer in Pay Group-V on the basis of Punjab domicile as per newspaper advertisements which appeared in different national dailies on behalf of petitioner Corporation. That the prescribed qualification for the said posts were MBA or equivalent with minimum GPA 2.6 and 70% marks. The age limit for the post was 27 years with a general relaxation of 07 years in the upper age limit as per policy of the Govt. of Pakistan. That after scrutiny of the application forms and fulfillment of all the other formalities including test and interviews, 125 applicants holding Punjab Domicile were selected in order of serial wise merit list and were issued offer letters for appointments. Further, candidates at Serial Nos. 270 to 291 were placed in stand-by on the merit list; however, no letters were issued to the stand-by candidates. That in response to letters containing offer of appointments sent to 125 candidates, 103 candidates holding Punjab Domicile gave their willingness and joined the Petitioner Corporation and 22 seats remained vacant for candidates having Punjab Domicile. Thereafter 22 stand-by candidates on the list from Sr. Nos. 270 to 291 were issued offer letters on the basis of Punjab Domicile. That Respondent No. 2 was not issued an offer letter as his name on the list was at Serial No. 295 which was even lower than those who were on the said stand-by list. That 07 candidates did not join the petitioner Corporation before the commencement of training on the above said scheduled dates, hence, total number of eligible applicants who finally joined the petitioner Corporation were 119. That no further appointment letters were issued as the prescribed scheduled training had commenced and remaining 07 positions on Punjab Domicile quota were carried over for further induction/recruitment process under the rules.

That Respondent No. 2 aggrieved of not being offered appointment in petitioner Corporation filed a complaint before the learned Wafaqi Mohtasib, Islamabad on 10.02.2010 after five months of finalization of the induction process. On receiving notice, petitioner also appeared before Wafaqi Mohtasib and filed report. After hearing the parties, learned Wafaqi Mohtasib dismissed the complaint of Respondent No. 2 vide impugned order dated 03.06.2010. Thereafter, Respondent No. 2 filed a representation dated 02.07.2010 before the President under Article 32 of Establishment of the office of Wafaqi Mohtasib (Ombudsman) Order, 1983. Petitioner Corporation on receiving a notice also filed Para wise comments to the representation filed by Respondent No. 2 vide letter dated 20.01.2011. The same representation was forwarded to the Law and Justice. Division for processing under Rule of Business, 1973. That Respondent No. 1 without hearing the petitioner Corporation and affording an opportunity to present its defence and the same remaining dormant for over a year after filing of the comments by petitioner corporation, set aside the order dated 03.06.2010 of the learned Wafaqi Mohtasib vide its order dated 28.09.2012 and accepted the representation field by Respondent No. 2.

3.  Learned counsel for petitioner argued that impugned order dated 28.09.2012 is in violation of the Section 24-A of General Clauses Act and is not an order/judgment in legal sense. That after completion of the process of the induction and beginning of the training of newly recruited ‘Management Trainee Officers there was no occasion for any further offer letters to the stand-by applicants. That those stand-by applicants/candidates who were not issued any offer letters had no vested right for appointment into the service of Petition Corporation. That Respondent No. 1 failed to appreciate that provincial quotas are for the province and not for any particular person and that provincial quota does not go waste rather under the rules it is carried over to the next induction process. That as per Esta Code, Establishment Division O.M No. F.8/9/72-TRV, dated 31st August, 1973, the “Vacancies which cannot be filled by candidates belonging to the Province or region to which the vacancy is allocated, should be carried over and re-advertised at a later date.” That Respondent No. 1 also failed to appreciate that the Corporation is a business entity and the whole induction process of any class of employees is based on needs of the Corporation and business environment. It is further contended that in the impugned order there are no findings as what is the mal-administration for which petitioner Corporation is responsible, therefore, impugned order/letter dated 28.09.2012 is without jurisdiction and ultravires of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order of 1983.

4.  On the other hand, Respondent No. 1 filed its reply and parawise comments and controverted the assertions made in the Writ Petition. Learned DAG also assisted by learned counsel for Respondent No. 2, contended that petition is not maintainable in view of the directions contained in O.M dated 31.07.2003 (Annex-A). They further submitted that the President has taken into consideration cogent reason, legal justification and logical conclusion before passing his orders and the President has full powers to upheld, vary or set aside the recommendations of the Wafaqi Mohtasib.

5.  I have heard the learned counsel for the parties and perused the order passed by the learned Ombudsman and also order passed on representation. Without going into merits of the case, I find it appropriate to dilate upon the question as to whether learned ombudsman while recording the findings fell in error or not? For convenience para-6 under the heading of “FINDINGS” is reproduced herein below:

“The Agency filed the photocopies of the entire relevant record regarding the process of test/interview, offer of appointment, joining reports etc. to substantiate its contentions. The Agency submitted that 250 vacancies, out of which 125 were selected with Punjab Domicile against the reserved Provincial quota. However 22 candidates did not join, hence another 22 candidates on the merit waiting list were issued letters of offer. The complainant was 24th on the waiting list and as such could not qualify for appointment in the Agency. The complainant could not deny or controvert the record of the Agency and as such the issue is decided in the negative.

In view of the above position, the instant complaint is rejected for having no merit.”

6.  Admittedly, respondent through his complaint never alleged about mal-administration on the part of petitioner. Even in the order passed by the learned ombudsman, despite rejection of complaint there is no reference of mal-administration. Article-9 of establishment of the office of Wafaqi Mohtasib (Ombudsman) Order, 1983 is being reproduced herein below to determine the grounds of complaint and authority to be exercised by the ombudsman.

“9.  Jurisdiction, functions and powers of the Mohtasib: (1) The Mohtasib may on a complaint by any aggrieved person, on a reference by the President, the Federal Council or the National Assembly, as the case may be, or on a motion of the Supreme Court of a High Court made during the course of any proceedings before it or of his own motion, undertake any investigation into any allegation or maladministration on the part of any Agency or any of its officers or employees:

Provided that the Mohtasib shall not have any jurisdiction to investigate or inquire into any matters which--

(a)      are sub-judice before a Court of competent jurisdiction or tribunal or board in Pakistan on the date of the receipt of a complaint, reference or motion by him; or

(b)      relate to the external affairs of Pakistan or the relations or dealings of Pakistan with any foreign state or government; or

(c)      relate to, or are connected with, the defence of Pakistan or any part thereof, the military, naval and air forces of Pakistan, or the matters covered by the laws relating to those forces.

(2)  Notwithstanding anything contained in clause (1) the Mohtasib shall not accept for investigation any complaint by or on behalf of a public servant or functionary concerning any matters relating to the Agency in which he is, or has been, working in respect of any personal grievance relating to his service therein.

(3)      For carrying out the objectives of this Order and, in particular for ascertaining the root causes of corrupt practices and injustice, the Mohtasib may arrange for studies to be made or research to be conducted and may recommend appropriate steps for their eradication.

(4)  The Mohtasib may set up regional offices as, when and where required. “

7.  As is evident from above provisions of law, the ombudsman could have exercised the jurisdiction, if any allegation of mal-administration was made; therefore, the complainant should have been rejected on this score alone. Since learned ombudsman dismissed the complaint on merit, therefore, on representation by the respondent under Article-32, the order was passed with following direction:

“Accordingly, the President has been pleased to accept complainant’s representation and modify the recommendations of the Mohtasib with the direction to the Agency to accommodate the complainant in the next available training.”

8.  Worthy President issued direction to accommodate the complainant in the next available training. The decision on the representation is not based on the finding of maladministration. Even otherwise, the act called into question by way of filing complaint was an executive function which fell out of the domain of learned ombudsman. The august Supreme Court in a case titled Peshawar Electric Supply Company Ltd. vs. Wafaqi Mohtasib (Ombudsman), Islamabad and others reported as PLD 2016 S.C 940 held as under:--

“Matters of appointment and recruitment in a public sector company--Appointment and/or recruitment in a public sector company was an executive function and such function could not be performed by the Wafaqi Mohtasib under Art.9 of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983, which excluded his jurisdiction to entertain a complaint of such nature.“

9.  When learned Ombudsman had no jurisdiction to entertain the complaint then Worthy President was also not vested with any authority to issue directions to “accommodate” the Respondent.

In this view of the matter, instant petition is allowed and impugned order dated 28.9.2012 is set aside.

(R.A.)  Petition allowed

Legal Character of an Electric Inspector is not that of Court

 PLJ 2007 Lahore 10

[Multan Bench Multan]

Present: Fazal-e-Miran Chauhan, J.

PAKISTAN WATER AND POWER DEVELOPMENT AUTHORITY through its EXECUTIVE ENGINEER, MEPCO LTD.,

MULTAN--Petitioner

versus

M/s. HUSNAIN INDUSTRIES (PVT.) LTD. through the M.D., MULTAN and 4 others--Respondents

W.P. No. 436 of 2005, decided on 13.6.2005.

(i)  Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (I of 1983)--

----Arts. 9(1), 10(3)--Constitution of Pakistan (1973), Art. 199--Jurisdiction of the Wafaqi Mohtasib--Constitutional petition--Objection that since the matter was subjudice before the Electric Inspector, jurisdiction of Wafaqi Mohtasib is barred/ousted under proviso A of S. 9(i) of Ordinance, 1983, was laid down--Held: No reference was pending before any Court of competent jurisdiction, Judicial Tribunal or Board."           [P. 14] A

 

(ii)               Electricity Act, 1910 (IX of 1910)—

 

 

----S. 36--Constitution of Pakistan (1973), Art. 199--Legal character of an Electric Inspector--Under the Electricity Act, 1910, the legal character of an Electric Inspector is not that of Court--He does not act as a Court under the Arbitration Act the role assigned to the electric inspector is to determine the dispute under the Electricity Act.     [P. 14] B

 

 

 

(iii)             Electricity Act, 1910 (IX of 1910)—

 

 

----Ss. 36 & 52--Constitution of Pakistan, 1973 Art. 199--Arbitration Act, 1940, S. 52--Under Section 52 of the Electricity Act or the same has already been decided by him.          [P. 14] C

 

(iv)              Constitution of Pakistan, 1973—

 

 

----Art. 199--Establishment of Office Wafaqi Mohtasib (Ombudsman) Order (I of 1983), Art. 32--Constitutional petition--Maintainability--Principle of laches and gross negligence--Alternate adequate remedy--It is declared that Writ Petition is hit by principles of laches--Petition dismissed.

            [P. 15] D

1974 SCMR 82; 1974 SCMR 38; PLD 2003 SC 123 & PLD 2004 SC 127 ref.

Mr. Muhammad Ashraf Sh., Advocate for Petitioners.

Malik Muhammad Latif Khokhar, Advocate for Respondent No. 1.

Ch. Saghir Ahmad, Standing Counsel with Haq Nawaz, Asstt. Wafaqi Mohtasib, Regional Office, Multan and Muhammad Sabir, Electric Inspector, Multan.

Date of hearing: 17.5.2005.

Order

Through this writ petition the petitioner has challenged the order dated 24.6.1998 passed by the Electric Inspector, Multan Region and order dated 20.2.1999 passed by the learned Advisory Board Govt. of Punjab, Irrigation and Power Department by which the application of the Respondent No. 1 consumer has been concurrently allowed and uphold.

2.  Brief facts of the case are that Respondent No. 1 is the consumer of petitioner (Wapda) running a Ghee Mills by using allotted Account No. 5121-959200 B-2 with sanctioned load fo 209 KW. All electric energy consumption bills were paid regularly and no arrear whatsoever was outstanding aginst the respondent. In the month of September, 1996, the Revenue Officer (P), WAPDA, Mumtazabad, Division, Multan issued electricty bill amounting to Rs. 604607/- against consumption of units of 5391 to the Respondent No. 1. Respondent No. 1 approached E.D.O. (L) WAPDA Mumtazabad Sub-divisions, Multan to enquire about the issuance of such excessive bill of Rs. 6,04,507/-. Respondent was informed that in the month of August, 1996, a Surveillance Team checked the meter of the Ghee Mills and found the meter slow @ 56.86%. The respondent challenged the report of the Surveillance Team, but he was directed to first deposit the disputed bill and then his grievance will be looked into by the petitioner, failing which his meter may be disconnected. Left with no option, the Respondent No. 1 deposited the disputed amount in favour of the petitioner and also requested to re-check the meter in presence of the respondent. As a result thereof, the working of the meter was found in-different and slowness was charged for the period May, 1996 to September 1996 and was found accurate during October, November, December 1996. As the behaviour of the meter was changed the metering equipment was ordered to be replaced and respondent consumer was allowed a refund of Rs. 5,97,181/- in the term of report of Surveillance Team. Being dissatisfied with the report, the Respondent No. 1 preferred an application, and under Section 26(2) Electricity Act, 1910 before Electric Inspector, Multan Division, Multan Respondent No. 2.

3.  The Electric Inspector after soughting reply, and record from the petitioner, hearing both the parties, and going through documentary evidence of both parties by his a very detail and elaborated order, declared that SDO of the petitioner played a drama of losses MLJ reading, just to cover up their losses and prove slowness. Meter of the respondent was not found to be slow in the said period. He directed the petitioner to refund the payment received as detection bill and also to serve Respondent No. 1 with bill for the month of September, 1996 as reading recorded by the KW meter actually and with actual multiplying factor.

4.  The petitioner preferred appeal before Respondent No. 3 (Advisory Board, Govt. of Punjab etc.) The respondentBoard dismissed the appeal of the petitioner, and decision of the Electric Inspector was upheld by order dated 20.2.1999. After 20.2.1999 petitioner filed this writ petition on 29.12.2004 challenging the order dated 24.6.1998.

5.  It is argued by the learned counsel for the petitioner that respondent paid the electricity bill, raised in view of the decision of the accredited authority of the department conveyed dated 8.8.1996 without any protest. The checking was carried out in presence of consumer, who also participate in test check but he refused to sign the report. Thereafter respondent was estopped to assail the same before Electric Inspector, request of consumer/respondent when acceded to recheck of meter by detective staff, there was no bonafide and lawful excuse to agitate the verdict of the 2nd report dated 24.12.1996. It is further argued that Respondent No. 2 (Electric Inspector) had no jurisdiction to determine the dispute. It was only Civil Court which has the jurisdiction to entertain and decide dispute involving monitory matter. Respondents Nos. 2, 3 did not adopt the procedure and decided the matter simply on the basis of the reports submitted, without checking the metering equipment. The law prescribes that, the thing to be done in accordance with the manner envisaged by law. The proceedings conducted by Respondent No. 2 are violative of Section 2.6(6) of Act of LX 1910. It was mandatory for Respondents Nos. 2 and 3 to convey the decision to licensee but they failed to convey the decision. The petitioner came to know when he received notice from the office of Wafaqi Mohtisab for implementation of the decision of the Respondents Nos. 2, 3. That without approaching the Civil Courts by filing suit for recovery and by affixing Court fee of Rs. 15,000/-, the consumer is not entitled to recover the amount. The consumer moved Respondent No. 4 illegally for recovery of alleged claim. Even otherwise Respondent No. 4 has no jurisdiction to take cognizance in the matter, which remains pending before the competent forum under the Electricity Act, 1910. There is further remedy under the law after decision of Electricity Act 1910, Respondent No. 4 is not the executing agency. There is a limitation imposed u/s 10(3) of Order 1 of 1983. Any claim beyond three months is not sustainable. The claim of the Respondent No. 1 is four year old and was barred by law and was to be subjudice before proper forum. That under Article 9 of the Wafaqi Mohtasib (Ombudsman) Order (PO 1 of 1983) matter pending before same Court or tribunal etc, were kept out of the jurisdiction of Ombudsman under Article 10(1) of Order 1 of 1983. The complaint of a person is competent and not that of a company, even otherwise respondent is estopped by his own conduct after the elapse of 6 years.

6.  On the other hand, learned counsel for the Respondent No. 1 argues that both decisions dated 24.6.1998 of the Electric Inspector and that of the Advisory Board dated 20.2.1999 are being challenged after elapse of almost 5 years is hit by principal of laches. That the Electric Inspector and Advisory Board decided the matter after hearing both the parties, the Advisory Board rejected the appeal filed by the petitioner holding that Respondent No. 1 was entitled to be refund of Rs. 6,04,607/- charged as an amount of 56.86% slowness of the meter for the month of May 1996 to September 1996, because in the opinion of the committee the meter was defective during May 1996 to September 1996, and the same became correct and was declared not slow from October 1996 onward.

7.  The Advisory Board rightly declared that the meter remains accurate during May 1996 to 31.12.1996, and the checking made by the petitioner/appellant in August 1996 declaring the meter to be slow to the extent of 56% was not correct, and decision of Electric Inspector dated 24.6.1998 was upheld and appeal of WAPDA was rejected on 20.2.1999. The petitioner remains silent and no remedy by way of filing writ was availed against the order of Electric Inspector and of Advisory Board Act, which attained finality. Now this writ petition, filed, challenging the order of Respondent No. 2 & 3 is hit by laches. The delay has not been explained. The impugned order passed by the competent authority was perfectly legal and had been passed in lawful exercise of authority and jurisdiction, and does suffered from any infirmity either in law and equity. High Court shall decline to interfere with such order in exercise of extra ordinary constitutional jurisdiction. He further argues that petitioner is guilty of gross negligence and laches is not entitled to the equitable relief. One, who seeks equity, must show that equities lean in his favour. The explanation, given in the application for condonation of delay is not explanatory. "And does not warrant condonation of delay. The explanation put forth does not inspire confidence. As has been held in L.H. Shaikh vs. General Manager, Karachi Telecommunication Region and others (1974 SCMR 82). Misplacement of file in the office of the petitioner is not supported by any document showing that any action was taken against such official held responsible for such misplacement. The Government is in no better position, then other, litigant is such matter. In civil matter, delay in filing appeal or petition, save in exceptional cases, shall not be lightly condoned, as a valuable right had accrued to the other party, who cannot be deprived of that except for very substantial reason. To make department of Govt. exception to this rule would be placing premium on negligence and want of proper diligence in public officer. As has been held in Chief Settlement and Rehabilitation Commissioner and another vs. Ghulam Ghaus etc. (1974 SCMR 38) and Member (S&R)/Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore vs. Syed Ashfaque Ali and others (PLD 2003 SC 123). It is further argued that an alternate adequate remedy by way of filing of representation to the President under Article 32 of the Establishment of Wafaqi Mohtasib (Ombudsman) Ordinance I of 1983 is available to the petitioner. The writ petition is pre-mature and the same may dismissed on this score only. Reliance is placed on Pakistan Railway vs. Abdul Barik Khan and others (PLD 2004 SC 127).

8.  I have heard the learned counsel for the parties at the limine stage. The argument advanced by the learned counsel for the petitioner mainly revolves around the jurisdiction of the Wafaqi Mohtasib. It is argued that, since the matter was subjudice before the Electric Inspector, the jurisdiction of Wafaqi Mohtasib is barred/ousted under proviso A of sub-section (1) of Section 9 of Ordinance 1 of 1983.

9.  Proviso A of sub-section (1) of Section 9 laid down that:

"Mohtisab shall not have any jurisdiction to investigate or inquires into any mark which is, a; are subjudice before a Court of competent jurisdiction or judicial tribunal or Board in Pakistan on the date of the receipt of the complaint, reference or motion by him".

From the bare perusal of the above proviso-A it is clear that jurisdiction to investigate or inquire into any matter is barred only when the dispute referred through the complaint, reference or motion to the Wafaqi Mohtisab the same is pending adjudication before a Court/Judicial Tribunal or Board. Here in the present case, the dispute was referred to the Electric Inspector, whose decision was not being implemented by the petitioner, respondent moved a complaint to the Wafaqi Mohtisab on 9.8.2004. On this date, when the complaint was filed no reference was pending before any Court of competent jurisdiction, Judicial Tribunal or Board.

10.  Under Section 36 of the Act 1910 the Federal Government may by notification in official Gazette, appoint duly qualified person to be Electric Inspector or Provincial Government may, by notification in official Gazette, appoint duly qualified person to be Electric Inspectors within such area as may be assigned to them respectively. The Electric Inspector has been assigned an important role so far as determination of dispute arising under the Act, 1910. In deciding the case under the Electricity Act, 1910, the legal character of an Electric Inspector is not that of Court. He does not act as a Court under the Arbitration Act. The role assigned to the Electric Inspector is to determine the dispute under the Electricity Act.

11.  Under Section 52 of the Arbitration Act where any matter is by or under this act directed to be determined by arbitration, the matter is referred to the Arbitrator nominated by the Provincial Government in this behalf. Its means that the appointment of Electric Inspector under the Electricity Act, (under Section 36) is not that of an Arbitrator. Meaning thereby, the Electric Inspector so nominated by the Federal Government or Provincial Government does not act as a Court or an Arbitrator. Thus, the proceedings pending before Electric Inspector are not proceedings pending before a Court or Tribunal creating bar on the jurisdiction of Ombudsman conferred under Article 9 of the Ombudsman Ordinance, 1983. Thus, the objection raised had no force that Ombudsman has no jurisdiction to entertain the complaint/reference, where the matter was pending before the Electric Inspector or the same has already decided by him.

12.  Conversely, learned counsel for the respondent argued that the Writ Petition filed by the petitioner is premature, the decision of the Electric Inspector for he refund of excess amount received by the petitioner was upheld by the Advisory Board on the appeal filed by the petitioner. Thereafter, the petitioner kept silent and never agitated the dispute before any Court of competent jurisdiction. Through this writ petition, the petitioner has challenge the order of Ombudsman by which the petitioner is directed to comply with the orders the Electric Inspector dated 24.6.1998 confirmed by the Advisory Board on 20.2.1999. If the petitioner feels aggrieved of the orders of Ombudsman he had a remedy under Section 32 of the Wafaqi Mohtisab Ombudsman Ordinance, 1983 to make a representation to the President of Pakistan. Here in this case the petitioner without availing the remedy available under the law has filed the writ petition challenging the jurisdiction of Ombudsman to decide the complaint filed by the respondents. Hence, the writ petition be dismissed being premature.

13.  He further argues that the petitioner who is guilty of gross negligence and laches is not entitled to equitable relief. One, who seeks equity must show that equity leans in his favour. In the present case, the order of Electric Inspector dated 24.6.1998 directed refund of amount received illegal by the petitioner was upheld by the Board by dismissing the appeal of petitioner on 20.2.1999 and after elapse of more than 4 years the present writ petition has been filed which hopelessly time barred and is hit by laches.

14.  The explanation given in the application for condonation of delay is not self-explanatory and does not inspire confidence. The misplacement of file in the office of the petitioner is not supported by any evidence showing the bona fides of the petitioner. The Government is not in a better position then the ordinary litigants in such matter. Since, no plausible explanation has been given for not filing the writ petition within the reasonable time. It is declared that writ petition is hit by principle of laches.

15.  For what has been discussed above, the writ petition is dismissed in limine being not maintainable.

(Mehmood Ahmed Alvari)    Petition dismissed.

 

Jurisdiction of High Court to grant or refuse Injunction

PLJ 2014 Quetta 80 (DB)

Present: Jamal Khan Mandokhail and Ghulam Mustafa Mengal, JJ.

MUHAMMAD RABANI, SALES DIRECTOR DALDA FOOD (PVT.) LTD., KARACHI & others--Appellants

versus

AGHA ARSHAD, MARKETING, DISTRIBUTOR OF DALDA & others--Respondents

C.M. Appeal No. 15 of 2012, decided on 24.1.2013.

Arbitration Act, 1940 (X of 1940)--

----Ss. 34 & 41--Civil Procedure Code, (V of 1908), O. XXXIX, Rr. 1 & 2--Interim restraining order--Jurisdiction of High Court for grant or refuse an injunction--Violated terms and conditions of agreement--Validity--Arbitrator(s) or Arbitration Tribunal does not have power to deal with request of an interim injunction, as provision of CPC are not applicable to arbitration proceedings--Powers of Court under Second Schedule of Act, can be exercised by issuing an interim orders for preservation and safety of subject matter of dispute--Mere filing of an application under Section 34 of Act or even stay of proceedings and referring matter to Arbitrator shall not precluded trial Court from dealing with injunction application--By invoking jurisdiction under Section 34 of Act, Court would not become functus-officio, if an interim relief claimed, falls within scope of Section 41 of Act.      [P. 82] A

Civil Procedure Code, 1908 (V of 1908)--

----O. XXXIX, Rr. 1 & 2--Arbitration Act, (X of 1940), S. 34--Interim restraining order--Violated terms and conditions of agreement--Defendant can contest an injunction application can file an application for setting aside an ex-parte order or decree or can file application for appointment of receiver--Not disentitled from claiming stay of suit and request for referring matter to arbitrators--Validity--Since application had not been decided finally and impugned order was interim in nature--Appellants might raise all these objections before trial Court, which should be decided in accordance with provisions of Order XXXIX Rule 1 and 2, CPC--Appeal was dismissed.        [P. 82] B

Syed Ayaz Zahoor, Advocate for Appellants.

Mr. Naseebullah Tareen, Advocate for Respondent No. 1.

Mr. Ayaz Sawati, Advocate for Respondent No. 2.

Date of hearing: 26.12.2012.

Judgment

Jamal Khan Mandokhail, J.--Facts of the case are that the Respondent No. 1/plaintiff filed a suit for a specific performance of an agreement dated 31st May, 2007 and recovery of an amount of Rs.60,08,307/- (rupees sixty lacs eight thousand three hundred and seven rupees only) along with an application under Order XXXIX Rules 1 and 2 CPC, against the appellants and Respondent No. 2 in the Court of Civil Judge-VII Quetta. The trial Court on the first date of hearing i.e. 21st June, 2012 passed an interim restraining order against the appellants and the Respondent No. 2. The appellants and the Respondent No. 2 filed an application under Section 34 of the Arbitration Act, 1940 (hereinafter referred to as the `Act') with a request to slay the proceedings and to refer the matter to the Arbitrator as per clause-28 of the Arbitration agreement. At the same lime, the appellants feeling aggrieved from the interim injunction order, preferred the instant appeal.

2.  The learned counsel for the appellants states that in presence of the application for stay of the proceedings filed by the appellants and the Respondent No. 2, the trial Court should not have extend the order impugned. He stated that even otherwise while granting the restraining order, the trial Court has failed to lake into consideration the three ingredients for the grant of stay i.e. prima-facie case, irreparable loss, and balance of inconvenience. He further stated that the agreement does not preclude the appellants from appointing the Respondent No. 2 as their agent therefore, there was no occasion for the trial Court to pass the restraining order. The learned counsel for the Respondent No. 2 supported the contention of the learned counsel for the appellants.

3.  On the other hand, the learned counsel for the Respondent No. 1 opposed the contention and stated that the appellants have violated the terms and conditions of the agreement, therefore, the Respondent No. 1 has a prima-facie case. If the applicants are not restrained, the Respondent No. 1 will suffer irreparable loss and will face inconvenience. The learned counsel further stated that there is no bar on the trial Court for proceeding and deciding the injunction application, even if the application under Section 34 of the Act, is filed. The learned counsel states that the order impugned is interim in nature and it has not so far been confirmed, therefore, the appellants should have wait for the final decision upon the application under Order XXXIX Rules 1 and 2, CPC filed by the Respondent No. 1.

4.  We have heard the learned counsel for the parties' and have gone through the record. To deal with the jurisdiction of this Court for the grant or refuse an injunction, it may be observed that under Section 41(1) of the Act, the Code of Civil Procedure 1908, is applicable, Clause (b) of the Act, provides that the Court shall have, for the purpose of, and in relation to an arbitration proceedings, the same power of making an order in respect of any of the matters set out in the second schedule of the Act, for the purpose of, and in relation, to any proceedings before the Court. The aforesaid provision of the Arbitration Act, read with the second schedule of the Act inter-alia empowers the Court to grant or refuse an interim injunction. It is because of the fact that the Arbitrator(s) or the Arbitration Tribunal does not have the power to deal with the request of an interim injunction, as the Provision of Civil Procedure Code, 1908 are not applicable to the arbitration proceedings. The powers of the Court under the Second Schedule of the Act, can be exercised by issuing an interim orders for the preservation and safety of the subject matter of the dispute, Thus, mere filing of an application under Section 34 of the Act or even stay of the proceedings and referring the matter to the Arbitrator shall not precluded the trial Court from dealing with the injunction application. The fact that by invoking the jurisdiction under Section 34 of the Act, the Court would not become functus-officio, if an interim relief claimed, falls within the scope of Section 41 of the Act.

5.  The defendant can contest an injunction application, can file an application for setting aside an ex-parte order or decree, or can file an application for the appointment of a Receiver. The same does not disentitle the defendant from claiming stay of a suit and request for referring the matter to the arbitrator. The expression "Any other step into proceeding" used in Section 34 of the Act, is not relatable to any step, action or inaction taken by the defendant during the proceedings of interim applications, such expression is applicable only to the proceedings of the main case, hence, the objection is overruled. As regards the remaining grounds of the appellants, suffice it to observe here, that since the application has not been decided finally and the impugned order is interim in nature, therefore, we are not inclined to dilate upon the same. The appellants may raise all these objections before the trial Court, which should be decided in accordance with the Provisions of Order XXXIX Rule 1 and 2 CPC.

Thus, in view of above, the appeal is accordingly dismissed. The trial Court is directed to decide the application finally in accordance with law, after providing opportunity of hearing to both the parties.

(R.A.)  Appeal dismissed