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Petitioner: PAKISTAN TELECOMMUNICATION CO. LTD. VS Respondent: IQBAL NASIRHonorable Justice Iftikhar Muhammad ChaudhryRaja M. Ibrahim Satti,Nazir Ahmed Bhutta
2011 P L C (C
2011 P L C (C.S.) 623
[Supreme Court of Pakistan]
Present: Iftikhar Muhammad Chaudhry, C. J., Tariq Parvez Khan and Ghulam Rabbani, JJ
PAKISTAN TELECOMMUNICATION CO. LTD. through Chairman
Versus
IQBAL NASIR and others
Civil Appeals No.468, 471-474, 632-633, 852-859, 883-892, 899-901, 950 and 974 of 2010, decided on 23rd December, 2010.
(On appeal from the judgment dated 22-12-2009 passed by the High Court of Sindh at Hyderabad in C.P. No.D-707 of 2009; judgment dated 29-10-2009 passed by the Peshawar High Court, Peshawar in W.Ps. Nos.2140 of 2006, 144 & 398 of 2007, 1938 of 2008 and 2190 of 2009; judgment dated 16-3-2010 in C.P.No.D-297 & 299 of 2008; judgment dated 5-5-2010 passed by the Lahore High Court, Multan Bench in W.Ps. Nos.4811, 5325, 5425, 5728 & 5798 of 2006, 551 of 2007 and 6143, 6691 & 9257 of 2009; judgment dated 3-6-2010 passed by the High Court of Sindh, Karachi in C.Ps. Nos.D-750 & 751 of 2006, 1695 & 1696 of 2008, 98, 298, 300, 682, 1950 & 1951 of 2009; judgment dated 15-6-2010 passed by the Peshawar High Court in W.P. No. 339 of 2006; order dated 14-6-2010 passed by the Lahore High Court, Lahore in W.P. No.21202 of 2009; and judgment dated 17-6-2010 passed by the Lahore High Court, Multan Bench in I.C.A .No.219 of 2009).
(a) Pakistan Telecommunication Corporation Act (XVIII of 1991)---
----S. 6---Constitution of Pakistan, Arts.185(3) & 199 (5)---Leave to appeal was granted by Supreme Court to consider; whether writ in the matter could not be issued to Pakistan Telecommunication Corporation Limited, as it was not performing functions in connection with affairs of Government and even if it was assumed to be performing such functions, still subject matter of judgment passed by High Court was not connected with affairs of Government; and whether rules framed by Pakistan Telecommunication Corporation Limited were statutory or not.
(b) Pakistan Telecommunication Corporation Act (XVIII of 1991)---
----S. 6--- Constitution of Pakistan, Arts. 185 (3) & 199 (5)--- Leave to appeal was granted by Supreme Court to consider; whether there was no statutory right in favour of employees to continue in service despite retrenchment, which aspect was not adverted to by High Court.
(c) Pakistan Telecommunication Corporation Act (XVIII of 1991)---
----S. 6---Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.1 (g)---Constitution of Pakistan, Art. 199---Pakistan Telecommunication Corporation Limited---Status---Non -statutory rules---Master and servant, principle of---Applicability---Constitutional jurisdiction of High Court, exercise of---Contract employees---Vested right---Respondents were contract employees and on completion of contracts, Pakistan Telecommunication Corporation Authority terminated their services---High Court in exercise of Constitutional jurisdiction, directed the Corporation to reinstate respondents in service---Validity---Federal Government first sold 12% shares of Pakistan Telecommunication Corporation Limited through public subscription and then it sold 26% [all B class shares] to foreign company and remaining 62% shares of Pakistan Telecommunication Corporation Limited were still owned by Federal Government---As long as Government owned majority shares in the Corporation, either in its own name or whether wholly or partially in the name of any other organization or entity controlled by Government, Pakistan Telecommunication Corporation Limited was and should continue to be amenable to jurisdiction of High Court under Art.199 of the Constitution---Pakistan Telecommunication Corporation Limited was a person within meaning of Art.199 (5) of the Constitution---In the absence" of statutory rules, principle of "Master and servant" was applicable and respondents were entitled to seek remedy permissible before Court of competent jurisdiction---Employees of Pakistan Telecommunication Corporation Limited were governed by principle of "Master and servant" and in absence of statutory rules, Constitutional petitions filed by employees were not maintainable---All employees having entered into contract of service on the same or similar terms and conditions had no vested right to seek regularization of their employment, which was discretionary with the master---Master was within his rights to retain or dispense with services of an employee on the basis of satisfactory or otherwise performance---Contract employees had no right to invoke Constitutional jurisdiction, where their services were terminated on completion of period of contract---As all respondents were covered under the definition of workman, they were entitled to one month's notice or salary in lieu thereof, as permissible to them under the rule of master and servant---Supreme Court set aside the judgment passed by High Court in favour of contract employees of Pakistan Telecommunication Corporation . Limited---Appeal was allowed.
PTCL v. Muhammad Zahid 2010 SCMR 253; PIAC v. Tanweer ur Rehman PLD 2010 SC 676;, Executive Council Allama Iqbal Open University v. M. Tufail Hashmi 2010 SCMR 1484; Masood v. PIAC 2001 PLC (C.S.) 41: Ikram Bari v. National Bank 2005 SCMR 100; Muhammad Asam v. PTCL 1997 PLC (C.S.) 1131; Nazir Ahmed Panhwar v. Government of Sindh 2009 PLC (C.S.) 161; Municipal Committee, Arifwala v. Muhammad Ramzan 2005 SCMR 1721; Sharifan Begum v. Abdul Aziz PLD 1975 SC 475; Pakistan International Airlines v. Sindh Labour Court No.5 PLD 1980 SC 323; Ch. Muhammad Ashraf v. State Life Insurance 2002 PLC (C.S.) 948; Hameed Akhtar Niazi v. Secretary, Establishment Division Government of Pakistan 1996 SCMR 1185; PIAC v. Samina Masood PLD 2005 SC 831; Principal Cadet Collage Kohat v. Muhammad Shoaib Oureshi PLD 1984 SC 170; I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041 and Engineeer Naraindas v. Federation of Pakistan 2002 SCMR 82 ref.
(d) Constitution of Pakistan---
----Art. 185(3)---Law Reforms Ordinance (XII of 1972), S.3---Intra Court Appeal, non filing of---Effect---Requirement of filing Intra-Court Appeal is a rule of practice for regulating exercise of discretion which does not oust or abridge Constitutional jurisdiction of Supreme Court and in certain exceptional circumstances Supreme Court can entertain petitions, or as the case may be, direct appeals even where remedy of Intra Court Appeal under section 3 of Law Reforms Ordinance, 1972, has not been availed by a party.
Imtiaz Ali Malik v. Mst. Surrya Begum 1979 SCMR 22; Pakistan International Airlines Corporation v. Samina Masood PLD 2005 SC 831; Accountant-General for Pakistan, (Revenue) through Auditor-General v. Zia Mohy-ud-Din PLD 2008 SC 164; Mst. Shohrat Bano v. Ismail Dada Adam Soomar 1968 SCMR 574; Punjab Employees Social Security Institution Lahore and others v. Manzoor Hussain Khan 1992 SCMR 441; Province of Punjab through Secretary Excise and Taxation, Government of Punjab v. Sargodha Textile Mills Ltd., Sargodha PLD 2005 SC 988 and Commissioner of Income Tax v. Messrs Media Network (PLD 2006 SC 787) rel.
(c) Order---
----Bad order---Non-implementation---Scope---Non-implementation of bad order makes no difference.
Muhammad Munir Piracha, Advocate Supreme Court, Mehmood A. Sheikh, Advocate-on-Record with Ms. Zahida Awan, GM (Legal) and Syed Yamin Shah, Manager (HR) for Appellants (in CAs. Nos. 468, 471-474, 632, 633, 853-859, 899-901, 950 & 974/2010).
Raja M. Ibrahim Satti, Senior Advocate Supreme Court for Appellants (in C.A.852 of 2010).
Nazir Ahmed Bhutta, Advocate Supreme Court and Mehmood A. Sheikh, Advocate-on-Record for Appellants (in CAs Nos.883-892 of 2010).
Muhammad Rafique Rajwana, Advocate Supreme Court and M.S. Khattak, Advocate-on-Record for Respondents (in CAs.No.852-859/2010).
Ejaz Faroze, Advocate Supreme Court for Respondents (in CAs. 882-892 of 2010).
Afzal Malik, Advocate Supreme Court for Respondents ((in C.A.No.899 of 2010).
M.A. Ghani, Advocate Supreme Court for Respondents (in C.A.No.900 of 2010).
Malik Qamar Afzal, Advocate Supreme Court for Respondents (in C.As.Nos.471 and 950 of 2010).
Ishatiaq Haider, Advocate Supreme Court for Telecom Foundation (in CAs. Nos.472-474 & 950 of 2010).
Iqbal Nazir, Naqi Butt, Izhar-ud-Din, Syed Ahsan Ali, Shakeel Ahmed and M. Adnan Pasha for Respondents (in person).
Dates of hearing: 4th 22nd, 24th 29th and 30th November, 2010.
JUDGMENT
IFTIKHAR MUHAMMAD CHAUDHRY, CJ.---These appeals, by leave of this Court, are directed against the judgments passed on different dates' by the High Court of Sindh at Hyderabad & Karachi; Peshawar High Court at Peshawar & D.I. Khan and Lahore High Court at Multan & Lahore in Constitution/Writ Petitions filed- by the respondents/employees of the appellant company "Pakistan Telecommunication Co. Ltd.", hereinafter referred to as the PTCL, against the termination of their service, and/or denial of the benefit of voluntary separation scheme introduced by the appellant.
2. The facts in C.A. No. 468 of 2010, arising out of judgment dated 22-12-2009 passed by the High Court of Sindh at Hyderabad in C.P. No. D-70`1 of 2009 are that the PTCL introduced a scheme for its employees known as "Voluntary Separation Scheme" (hereinafter referred to as "VSS"), whereby, apart from other benefits which an employee was entitled to get, he was also entitled to receive early retirement benefits provided he had rendered a minimum of 20 years of service. The petitioners in the said petition [respondents herein] applied for the benefit of VSS, but were denied the same on the ground that they did not possess the requisite qualifying length of service. They wrote a letter to a learned Judge of the High Court of Sindh, Circuit Bench, Hyderabad which was converted into a Constitution Petition and notices were issued to the concerned authorities. The claim of the said respondents was that they had completed 20 years of service from the date of their appointment, but they were wrongly denied the benefit of VSS. On the other hand, the stance of the PTCL was that the respondents/petitioners were appointed on 14-12-1981 & 24-3-1983 respectively, they passed their recruitment examination on 3-8-1987 and completed their training on 30-10-1988 & 2-4-1990 respectively, therefore, their service could only be considered from the date of successful completion of training, and not from the date of their initial appointment. In rebuttal, the respondents referred to the case of one Mrs. Rubina Khadim, Telephone Operator who was granted similar benefits on the basis of date of her appointment and not with reference to the date of completion of training, and submitted- that the act of the PTCL was a clear case of discrimination, which warranted interference by the High Court in the exercise of its constitutional jurisdiction. The learned Division Bench of the High Court allowed the Constitution Petition and directed the PTCL to extend the benefit of VSS to the respondents as well. Following the view thus taken, another learned Division Bench of the said High Court at Hyderabad, vide a common judgment dated 16-3-2010 passed in Constitution Petitions Nos.D-297 & D-299 of 2008 granted relief to the petitioners therein and the PTCL was directed to pay to them the balance amount and monthly pension as claimed by them.
3. Aggrieved by the said judgment/order, the PTCL approached this Court by means of Civil Petitions No. 516, 1185 & 1186 of 2010 wherein leave was granted vide separate orders dated 8-7-2010 and 19-7-2010 to consider, inter alia, the contentions that writ in the matter could not be issued to the PTCL as it was not performing functions in connection with the affairs of the Government, and even if it was assumed to be performing such functions, still the subject matter of the impugned judgment was not connected with the affairs of the Government, and further whether the rules framed by the PTCL were statutory or not.
4. Civil Appeal No. 901 of 2010 arises out of the judgment dated 17-6-2010 passed by the Lahore High Court, Multan Bench in I.-C.A. No. 219 of 2009; filed by the appellant-employee of the PTCL, Multan Region, who had opted for VSS wherein the cut off date was mentioned as 26-5-2008 but he could not be relieved from service due to some unavoidable reasons and continued till- 4-6-2008, therefore, he claimed the pay and benefits up-till 4-6-2008, which were declined by the PTCL authorities. He then approached the Lahore High Court, Multan Bench through Writ Petition No. 4690 of 2008, which was dismissed vide order dated 8-7-2009. Aggrieved by the said order, the respondent challenged the same in I.-C.A. No. 219 of 2009, which was allowed by the Division Bench vide order dated 17-6-2010 and the remuneration for the period over and above the cut off date was ordered to be paid to him.
5. This Court, vide orders dated 21-9-2010 and.28-9-2010 passed in Civil Petitions Nos.1569, 1622-1626, 1742 & 1780 of 2010, and 1678, 1679 & 1694 of 2010 respectively, filed against the above judgments, granted leave to appeal to the PTCL in terms of leave granted in Civil Petitions Nos.516 of 2010 and 1185 of 2010.
6. Civil Appeals Nos.899 & 900 of 2010 arise out of judgment dated 15-6-2010 passed by a Division Bench of the Peshawar High Court in Writ Petition No. 339 of 2006 and order dated 14-6-2010 passed by a learned Single Judge of the Lahore High Court, Lahore in Writ Petition No. 21202 of 2009 respectively, filed by the petitioners-employees of the PTCL, Peshawar and Lahore Regions seeking a declaration that they were employees of the PTCL from the date of appointment and entitled to the same wages as were being paid to other regular employees of PTCL, and the termination orders made by the PTCL or by the Foundation were void, as also a direction to the PTCL to take them on its strength from the date of appointment and to pay them salary. By the impugned judgment and order, the relief prayed for was granted by the respective High Courts, against which leave was granted by this Court vide order dated 28-9-2010 passed in Civil Petitions Nos.1678 & 1679 of 2010.
7. Another set of appeals, namely, Civil Appeals No.471, 472, 473, 474 & 950 of 2010 arises out of the consolidated judgment dated 29-10-2010 passed by the Peshawar High Court in Writ Petitions Nos.2140 of 2006, 144 & 398 of 2007, 1934 of 2008 and 2190 of 2009 filed by the petitioners-employees of the PTCL, Peshawar Region against the termination of their services due to the termination of contract by the PTCL with the Telecom Foundation regarding hiring of services of skilled, semi-skilled and unskilled manpower in that region. It was pleaded that the impugned orders of termination of services were patently mala fide as neither their jobs were abolished nor any charge existed against them, which were also discriminatory and deprived them of the equal treatment before, and equal protection of law, inasmuch as various other similarly placed employees were made permanent and were continuing in service. A learned Division Bench of the Peshawar High Court, following the law laid down by this Court in the judgment reported as PTCL v. Muhammad Zahid (2010 SCMR 253), on a parity of reasoning, allowed the writ petitions and declared the impugned orders to be without jurisdiction, without lawful authority and of no legal effect, besides being discriminatory and ordered the petitioners to be restored on their respective posts with all back benefits due to them under the contract agreement except the monthly salary as they had not practically worked on their posts.
8. This Court, vide order dated 5-7-2010 passed in Civil Petitions Nos.2581, 2582, 398 and 612 of 2010 filed against the above judgment, granted leave to appeal to the PTCL to consider, inter alia, the contention that there was no statutory right in favour of the respondents-employees to continue in service despite retrenchment, which aspect was not adverted to by the learned High Court.
9. The next set of appeals, namely, Civil Appeals Nos.852 to 859 & 974 of 2010 arises out of the consolidated judgment dated 5-5-2010 passed by the Lahore High Court, Multan Bench in Writ Petitions Nos.4811, 5325, 5425, 5728 & 5798 of 2006, 551 of 2007 and 6143, 6691 and 9257 of 2009, all filed by the petitioners-employees of the PTCL, Multan Region against the termination of their services. It was pleaded that in the light of the judgment of this Court reported as Muhammad Zahid (supra), the petitioners were entitled to the same relief, i.e. the regularization of their appointment and grant of same wages as were being paid to the other regular employees of the PTCL. In pursuance of the interim orders passed by the High Court, the petitioners continued to perform their duties. A learned Single Judge of the Lahore High Court, Multan Bench, in the light of the precedent case of Muhammad Zahid (supra) allowed the writ petitions and granted the relief prayed for.
10. Yet another set of appeals, namely, Civil Appeals No. 883 to 892 of 2010 arises out of the consolidated judgment dated 3-6-2010 passed by the High Court of Sindh, Karachi, in Constitution Petitions No. C.Ps. Nos.D-750 & 751 of 2006, 1695 and 1696 of 2008 and 98, 298, 300, 682, 1950 & 1951. of 2009, all filed by the petitioners-employees of the PTCL, Karachi Region against the termination of their services. A learned Division Bench, in the light of the law laid down by this Court in the cases of Muhammad Zahid (supra) and PIAC v. Tanweer-ur-Rehman (PLD 2010 SC 676) held that though PTCL was a person amenable to the jurisdiction of the High Court under Article 199(5) of the Constitution, but since PTCL did not have statutory rules, the writ petitions of the employees of PTCL were not maintainable, therefore, the same were dismissed and the petitioners were allowed to seek such remedies as were available to them under the law. Leave against the aforesaid judgment was granted by this Court vide order dated 28-9-2010 passed in Civil Petitions Nos.1589 to 1598 of 2010.
11. Mr. Muhammad Munir Piracha, Advocate Supreme Court, learned counsel for the appellant PTCL contended that the PTCL was not a person performing functions in connection with the affairs of the Federation within the meaning of Article 199(5) of the Constitution, inasmuch as the Federal Government, on 12-4-2006, entered into an agreement with Etisalat International Pakistan LLC, hereinafter referred to as "the EIP" whereby 1,326,000,000 shares of the PTCL were transferred to the EIP, therefore, the management of the company vested in the EIP. He argued that the PTCL had succeeded the Pakistan Telecommunication Corporation, hereinafter referred to as "the PTC", which ' was governed by section 6 of the Pakistan Telecommunication Corporation Act, 1991 [hereinafter referred to as the Act of 19911, therefore, only such functions of the Corporation, which were performed in pursuance of section 6 ibid, could be said to be functions in connection with the affairs of the Federation. The matters dealing with the officers and servants of the PTCL, which vested in the EIP, were not the functions in connection with the affairs of the Federation. The learned counsel maintained that the law laid down in Muhammad Zahid's case, which was rendered at a time when the controlling share of the concern vested, not with 'the EIP, but with the Federal Government was required to be revisited/clarified in view of the fact that the controlling shares had subsequently been vested with the EIP.
12. Mr. Muhammad Ibrahim Satti, learned Senior Advocate Supreme Court, also appeared on behalf of the PTCL and submitted that in absence of statutory rules, the employees of the PTCL were governed by the principle of "Master and Servant" 'and the writ petitions were not competent and the learned High Courts wrongly assumed jurisdiction under Article 199 of the Constitution. He contended that the terms and conditions of service of employees of the PTCL were governed by the contracts of service, according to which they were temporary employees/daily wagers, therefore, they could not claim permanent appointments against the provisions of the contracts, which provided, inter alia, that the employees would not' have any right of permanent induction in service. The learned counsel submitted that Muhammad Zahid's case was wrongly relied upon by the learned High Courts in the instant case, inasmuch as this Court has clarified/modified the judgment in the said case in the subsequent judgment to the effect that the employees who were not governed by statutory rules were debarred to invoke the jurisdiction of the High Court under. Article 199 of the Constitution. To substantiate his argument, he referred to Executive Council Allama Iqbal Open University v. M. Tufail Hashmi (2010 SCMR 1484), which laid down that the employees of only such organizations were entitled to invoke constitutional jurisdiction of the High Court, which were performing functions in connection with the affairs of the Federation and whose services were governed by statutory rules.
13. Mr. M.A. Ghani, Advocate Supreme Court for the respondents-employees in C.A. No. 900/2010 argued that the respondents were workmen as defined in section 2(xxviii) of the Industrial Relations Ordinance, 1969, section 2(xxx) of the Industrial Relations Ordinance, 2002 and clause (g) of Order 1 of the Schedule to the W.P. (Standing Orders) Ordinance, 1968, the role of Telecom Foundation was only of employment exchange and they were the employees of the PTCL from the date of appointment, regular after 183 days of service and entitled to same wages as were being paid to regular employees of the PTCL as held in Masood v. PIAC (2001 PLC (C.S.) 41), which formed the basis of Muhammad Zahid's case (supra). The learned counsel submitted that Masood's case (supra) was also relied upon in Ikram Bari v. National Bank (2005 SCMR 100). In the latter case, the Bank had terminated the services of daily wages employees on the ground that although the employees were appointed by the Bank, yet their salaries were being paid by the borrowers/loanees. However, the termination orders were set aside by this Court, inter alia, holding as under:-
(1) The fact that the wages of the employees were debited to the borrower's account would make no difference since for all practical purposes and legal consequences they were placed under the administrative control of the Bank;
(2) Islamic welfare state is under an obligation to establish a society, which is free from exploitation wherein social and economic justice is guaranteed as envisaged by Article 2A of the Constitution; and
(3) Under Article 38 of the Constitution, State is obliged to secure the well being of the people by raising their standards of living and by ensuring equitable adjustment of rights between employer and employees while Article 3 requires the State to ensure elimination of all forms of exploitation, therefore, the approach of the Bank that temporary Godown staff and daily wages employees should be continued to be governed on disgraceful terms and conditions of service for indefinite period could not be countenanced.
According to the learned counsel, the other case, which lay at the foundation of Muhammad Zahid's case was Muhammad Asam v. PTCL 1997 PLC (C.S.) 1131 wherein it was laid down that whoever completed 183 days including artificial breaks shall be permanent workman. The claim of the PTCL was that the Foundation was the employer whereas the claim of the employees was that as they worked for, at the premises, and under the administrative control, of the PTCL, therefore, they were the employees of the PTCL. The question as to who was the employer, whether PTCL or the Foundation could not be agitated before the Labour Court where a worker could just file a grievance petition against the employer, therefore, the claim and the conduct of the PTCL being in violation of the definition of workman, such a question could only be settled in writ jurisdiction of the High Court. The impugned termination orders were void, therefore, the same were rightly challenged before the High Court in its writ jurisdiction. Reference was made to Nazir Ahmed Panhwar v. Govt. of Sindh 2009 PLC (C.S.) 161 and Municipal Committee, Arifwala v. Muhammad Ramzan (2005 SCMR 1721) for the proposition that in case of violation of the principles of natural justice, writ petition was competent even in a case involving contractual obligation, and to the case of Sharifan Begum v. Abdul Aziz (PLD 1975 SC 475) for the proposition that in case of violation of Article 25 of the Constitution, resort could only be made to the remedy provided by the Constitution.
14. The learned counsel also submitted that the liability imposed upon the employer under the Industrial & Commercial Employment Standing Order of confirming the employees after 183 days' service including artificial breaks could not be defeated by contract as…
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