KAKA KHEL LABOUR AND STAFF UNION Versus FEDERATION OF PAKISTAN , Muhammad Saleem Saigol & Asad Ullah Siddiqui

ORDER

MANZOOR HUSSAIN SIAL, J.‑ ‑‑Kaka Khel Labour and Staff Union, Kaka Khel Industries Sargodha Road, Faisalabad (hereinafter referred to as the petitioner) through this Constitutional petition seeks direction to the Federation of Pakistan to hold in abeyance the current policy of privatisation of State Managed Projects or in the alternative not to transfer the management of Kaka Khel Industries (Pvt.) Ltd. (hereinafter called as the company) into the hands of respondent No. 5, a prospective buyer, until all dues in cash and lump‑sum are paid to 291 employees of the company who opted for golden hand‑shake.

2. The petitioner‑union as collective bargaining agent for the entire labour force of the company maintains that 51% share capital of the company was being purchased by respondent No.5, through the Privatisation Commission and management thereof was being transferred to the purchaser on.23‑4‑1992. The petitioner pointed out that the agreement dated 15‑10‑1991 executed by the representative of the Federation on the one hand and the representative of All Pakistan State Enterprises Workers' Action Committee on the other regulated the transfer of the State Managed Projects to private sector as also to safeguard the interest of the employees. The petitioner assailed the validity of the Memorandum of Agreement on the ground that it had no legal backing nevertheless sought implementation of clause (c) of Package `B' of that Agreement, which pertained to commitment made by the Federation for payment of all dues after sale of units and to settle the dues prior to the transfer of management of the industrial unit into the private sector. The apprehension visualised by the petitioner was that after the sale of the unit and transfer of management the employees opting for golden hand shake would not be paid the dues and rather left in lurch.

3. Mr. Faqir Muhammad Khokhar, the learned Deputy Attorney General, Mr. M. Saleem Saigol, Advocate on behalf of the Privatisation Commission, Islamabad and Mr. Asad Ullah Siddiqqi, Advocate on behalf of the Ghee Corporation of Pakistan, have been heard at the limine stage of this case.

4. Dr. A. Basit, Advocate, learned counsel for the petitioner at the very outset pointed out that the petitioner did file a civil suit for permanent injunction before the Senior Civil Judge, Faisalabad, for similar relief as prayed for in this petition. The interim relief sought for having been refused by the Civil Court, the suit, which is fixed for hearing on 23‑4‑1992 was being withdrawn.

5. He‑argued that regardless of the legal status of the agreement dated 15‑10‑1991 and its enforcibility, the commitment made by the respondent Federation reflected therein was open to judicial review to scrutinise the validity of discretion through which the assets owned by the Federation were being transferred to the private hands. He further contended that no transfer of management into private sector would be valid unless all employees, who opted for golden hand‑shake in terms of package `B' of agreement dated 15‑10‑1991 were paid in cash the entire amount due to them after the execution of the sale deed but before the transfer of the management to the purchaser.

6. Mr. Saleem Sehgal, learned counsel for respondent No. 2, on instructions, stated at the bar that in several industrial units previously sold through the Privatisation Commission, the commitment pertaining to golden hand‑shake with the employees of the units were fully honoured. In the instant case certain administrative issues were being resolved and immediately there after, the compliance of the commitment made by the Federation, through Privatisation Commission in respect of the employees of the unit who opted for golden hand‑shake would be ensured.

Similarly the learned Deputy Attorney‑General stated that let the transfer of the management of the unit to the intending purchaser take place stage. However, the commitment made in the Memoradum of Agreement, regarding golden hand‑shake would be subject to the decision of the writ petition.

7. Learned counsel for the second respondent pointed out that it' has been held by the Supreme Court in Millat Tractors Employees Trust v. Government of Pakistan etc. (C.P.S.L.A. No. 1069/1, of 1991) that the Memorandum dated 15‑10‑1991 was not enforceable nor could be made the basis of promissory estoppel nevertheless the respondent No. I through respondent No. 2 would honour the commitment made therein.

8. We have considered the contentions raised by learned counsel for the parties.

Clause (c) of Package B' of the Memorandum of agreement dated 15‑10‑1991 reads:‑‑

"All dues will be paid only after the sale of units. However, all possible measures will be adopted to settle the dues before handing over of the units:"

The petitioner appears to be oblivious about the validity and enforcibility of the Memorandum of Agreement dated 15‑10‑1991 nevertheless seeks enforcement thereof which visualised payment of dues to the employees opting for golden hand‑shake after the sale of units and all possible measures to be adopted in that regard to settle the dues before handing over the management of units to the purchaser. This paradoxical stand adopted by the petitioner, in our view, does not advance his case either. The Supreme Court in Millat Tractors' Employees Trust case referred to above held the agreement not enforcible, it will be futile attempt on the part of the petitioner still to rely and seek enforcement of a clause of the agreement through writ jurisdiction with reference to the exercise of discretion by the respondents Nos. 1 and 2 in G the matter. Even otherwise Clause (c) of Package `B' quoted above loses its significance with reference ‑to its enforcibility, in face of the assurance given and statement made on instructions. by learned counsel for the respondents at the bar safeguarding the interest of employees opting for golden hand‑shake, as has been done in all other units disposed of through Privatisation Commission.

9. Subject to the observation made above this petition stands dismissed.

H.B.T./K‑79/L Petition dismissed.