ISLAMABAD: The Supreme Court has held that the suspension of transfer order of CEO Fesco by Lahore High Court is violative of the rule laid down by this court and disposed of the case.
A three-judge bench headed by Justice Umar Ata Bandial and comprising Justice Munib Akhtar and Justice Sayyed Mazahar Ali Akbar Naqvi, heard the Federation's appeal against the Lahore High Court (LHC).
"The grant of interim relief which has the effect of permanence is violative of the rule laid down by this court in the case federation vs Muhammad Zaman Khan (1997 SCMR 1508)," said the SC verdict.
The bench remanded the matter to the CJ LHC, and said: "We consider that the Chief Justice of the Lahore High Court would be gracious enough to take the apex court observation into consideration for deciding the pending petition in the week [present week] commencing 05.10.2020."
"If he is preoccupied with other matters then the writ petition shall be fixed for hearing before the Companies Bench of the Lahore High Court in the said week for decision of the matter," said the verdict.
The additional attorney general has challenged an interim order dated 09.09.2020 passed in writ petition filed by the Shafiqul Hassan (respondent No 1), a temporary stopgap appointee to the post of CEO, Fesco, whereby, his transfer order dated 28.08.2020 has been suspended.
The additional attorney general submits that the impugned order suffers from legal defects on merits, and even otherwise, a writ petition filed at the instance of an employee of the company with non-statutory rules of service was not maintainable.
The bench noted that the suspension of the respondent's transfer order had created an anomalous situation because as shown by the additional attorney general, a successor temporary appointee to the post of CEO, Fesco was notified on 4.9.2020 and was approved by the Board of Directors of the Company on 5.9.2020.
The judgment said that the constitutional jurisdiction by superior courts must be exercised according to the settled principles of law. Granting longevity to a suspensory order without hearing the other side is, if at all, done exceptionally.
These are words of caution that are necessary for ensuring the majesty of the law and preserving public trust in the courts of law. The bench said it was also the policy of the Supreme Court to interfere with interim orders passed by the High Court only exceptionally.
This would be in cases of serious violation of the law or wrongful exercise of jurisdiction. It said that the aspect was not noticed by the Single Bench, while suspending the impugned order. It appears this was done without obtaining the response of the federal government or the concerned authorities namely, FESCO and the PEPCO.
The said order also admitted the writ petition by the respondent No 1 to regular hearing. The first ground is the violation of the Fesco's transfer policy. The Fesco is a limited company and does not have any statutory rules governing the terms and conditions of service of its employees.
The additional attorney general (AAG) accordingly states that the writ petition is not maintainable as the said transfer policy is non-statutory in character. The second ground noted in the impugned order is that respondent No 2, federal secretary, Ministry of Energy (Power) Division was incompetent to pass the order dated 28.08.2020.
The AAG submitted that the Fesco was a wholly owned company of the federal government. Under sections 187 and 190(2) of the Companies Act, 2017 the federal government has power to remove the appointed chief executive of a company.
He stated that the respondent was a temporary stopgap appointee without any legal entitlement to retain the office. As such the intervention by the federal government was perfectly valid.
Copyright Business Recorder, 2020
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