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Petitioner: ANEEL KUMAR VS Respondent: PAKISTAN TELECOMMUNICATION COMPANY LIMITED through President and another
Court Name: Sindh High Court Judge(s): Munib Akhtar Title:ANEEL KUMAR vs PAKISTAN TELECOMMUNICATION COMPANY LIMITED through
President and another Case No.:C.M.A. No,6662 in Suit No,1029 of 2010, 11077 in Suit No,1661 of 2010, 7179 in Suit No,1066 of 2010, 6666 in Suit No,1031 of 2010 and 6664 in Suit No,1030 of 2010 Date of Judgment:2012-05-29 Reported As: 2013 PLC (C.S.) 413 Result: Application dismissed Judgment ORDER ' MUNIB AKHTAR, J.--- In all these connected suits, the plaintiffs are employees of the Pakistan Telecommunication Company Ltd. ("PTCL"), whose services were terminated on account of alleged misconduct and/or other culpable conduct or acts within the meaning of Chapter 7 of the PTCL Service Regulations, 1996 ("1996 Regulations"). The orders of termination of service have been challenged by means of the present suits, and the applications under consideration are for interim relief by way of suspension of the said orders. 2. Learned counsel for the plaintiffs traced the legislative history whereby PTCL came to be incorporated and the plaintiffs became the employees thereof. He submitted that originally all the plaintiffs save one (in Suit 1031 of 2010) had been the employees of the erstwhile T&T (Telephone and Telegraph) Department of the Government of Pakistan. Thus, they had been civil servants at inception and were governed by terms and conditions of service which were statutory in nature. With the creation of the Pakistan Telecommunication Corporation ("PTC"), a statutory body created by the Pakistan Telecommunication Corporation Act, 1991 ("1991 Act"), the plaintiffs stood transferred to PTC but on the same terms and conditions as before. Most relevantly for present purposes, according to learned counsel this meant that the plaintiffs' terms and conditions of service continued to be governed by statutory rules, i,e,, the ones that had originally regulated their affairs when they were employed with the T&T Department. The 1991 Act was repealed by the Pakistan Telecommunication (Re-organisation) Act, 1996 ("the 1996 Act"). (This statute was in fact preceded by two successive Ordinances, one promulgated in 1995 and the other in 1996, that were
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substantially the same in all material respects). Section 34 of the 1996 Act made provision for the incorporation of PTCL as a company registered under the Companies Ordinance, 1984. Upon its incorporation, most of the employees of PTC as presently relevant (i,e,, inclusive of the plaintiffs) stood transferred to PTCL. But, and this was a crucial aspect of learned counsel's submissions, the plaintiffs continued to be governed by the same terms and conditions as before. Thus, notwithstanding the plaintiffs' journey from a government department to a company registered under the Companies Ordinance by way of a statutory corporation, their terms and conditions of service continued .To be statutory in nature. In support of the foregoing submissions, learned counsel relied on Abdul Rahim v. Pakistan Broadcasting Corporation 1992 SCMR 1213 (three- member Bench), Pakistan Telecommunication Corporation v. Riaz Ahmed PLD 1996 SC 222 (two member Bench) and Divisional Engineer Phones v. Muhammad Shahid 1999 SCMR 1526 (three- member Bench). However, the greatest reliance by far was placed on Masood Ahmed Bhatti and others v. Federation of Pakistan and others 2012 SCMR 152 (three-member Bench) ("Masood Bhattii"). 3. Learned counsel formulated his submissions for interim relief under two broad heads. Firstly, he contended that the applicable rules and regulations, being statutory in nature, had not been applied to the plaintiffs, since they had been proceeded against under the 1996 Regulations. These had admittedly been framed by PTCL itself for its own internal purposes and were inapplicable to the plaintiffs. Since the plaintiffs were governed by statutory rules, their cases stood on a materially different footing as compared to those employees who were governed by non-statutory terms of service. Secondly, he submitted (without prejudice to the first submission) that even the 1996 Regulations had not been properly applied, and the procedure laid down therein had not been followed. There were material defects in the proceedings and as a result the entire exercise stood vitiated. 4. As regards his main case, which turned on his submission that the rules applicable to the plaintiffs were statutory in nature, learned counsel, relying principally on Masood Bhatti, submitted that as presently relevant, the employees of PTCL could be divided into three categories. The first comprised of those employees whose careers had originated in the T&T Department and who had come to PTCL in the manner just described. As noted, this was the situation of all the plaintiffs save one. The second category comprised of those employees who had been recruited or employed by PTC and had then been transferred to PTCL. Learned counsel submitted that the plaintiff in Suit 1031 of 2010 fell in this category. The last category comprised of those employees recruited or employed by PTCL itself on or after 1-1-1996. (This date is significant on account of a vesting order made by the Federal Government in the exercise of statutory powers under the Ordinance of 1995 that had preceded the 1996 Act. However, it has no direct relevance for present purposes.) It is to be noted that in Masodtl Bhatti reliance was placed by PTCL on Ejaz Ali Bughti v. PTCL 2011 SCMR 333 to contend that the relevant and applicable rules were non-statutory, but it was explained by the Supreme Court that this finding was only based on a concession, which could not be regarded as determinative of the issue. Learned counsel for the plaintiffs submitted that it was clear from the principles enunciated in Masood Bhatti that'the employees who came in either of the first two categories (and hence all the present plaintiffs) were governed by statutory rules and regulations, and therefore their service matters could not be regulated by the non-statutory 1996, Regulations. In this context, learned counsel pointed out that the 1996 Act pursuant to which PTCL had come to be created did not confer any rule making powers on the latter. Thus, his primary case was that the wrong provisions had been applied to the plaintiffs and hence the entire exercise against them was a complete nullity.. Furthermore, and this limb of the argument was equally important, even if the proceedings against the plaintiffs could be regarded as valid, any violation of the applicable rules or regulations could be set aside by the court and a declaration made for their reinstatement.
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This was because in the case of statutory rules of service it was well established that a violation of same could be remedied by way of such relief. Learned counsel referred to various cases in support of his submissions. 5. Without prejudice to his foregoing primary submission with regard to the 1996 Regulations, learned counsel submitted that even if the 1996 Regulations were applicable, there had been a material breach of the same. He submitted that the principles of natural justice had been grossly violated. In this context, he submitted that the inquiry committee, whose report formed the basis for the impugned action, was not properly constituted nor was it an independent body. In many cases, its members were employees who were on contract and thus, for obvious reasons, beholden to PTCL. Contrary to the requirements of Chapter 7, in many cases, the members of the committee were junior in rank to the plaintiff being proceeded against. No proper evidence had been produced against any of the plaintiffs nor had they been given an opportunity to rebut .Or confront the same. Alttough Karachi was the place of occurrence of the alleged culpable acts or conduct, the enquiry itself had been held at Islamabad and that also over the course of only a single day. A perusal of the report(s) produced by the committee showed that The burden of proving innocence had been placed on the plaintiffs rather than, as the law required, the onus lying on PTCL to establish guilt. Thus, the proceedings even under the 1996 Regulations were grossly illegal and liable to be set aside. Learned counsel submitted that the entire exercise was mala fide in nature, and the equities lay clearly in favour of the plaintiffs, who were entitled to interim, relief as prayed. 6. Both the learned counsel who appeared for PTCL strongly opposed the grant of any relief. (I intend no disrespect by not distinguishing between the submissions made by each learned counsel, since what they had to say was completely complementary). Insofar as the proceedings were concerned, it was submitted that the requirements of law and the 1996 Regulations had been strictly adhered to. Proper show cause notices were issued, the particulars of the culpable acts/misconduct were conveyed in full and an opportunity of hearing was granted. The inquiry committee comprised of at least one person who was senior in rank to the plaintiff concerned and other members who were either senior or equal in rank. It was denied that any member of the committee was junior to the plaintiffs. Since the entire case against the plaintiffs was documentary in nature, no witnesses were required and hence none were produced. The plaintiffs however, were confronted with the documents that formed the basis of the impugned action. They were fully aware of the nature of the cases against them, to which they had made detailed replies. Learned counsel pointed out that none of the plaintiffs had produced any witnesses for themselves. Referring to the record, learned counsel contended that the principles of natural justice had been fully adhered to. The case against each plaintiff stood established and therefore the appropriate action (i,e, termination from service) was justified, warranted and fully in accordance with law. Learned counsel contended further that the court could not substitute its own judgment for that of the appropriate tribunal or authority insofar as the merits of the case were concerned. All that it could examine was the procedural aspect, in order to satisfy itself that the requirements of law in this regard had been complied with. Since that, according to learned counsel, was the situation in the cases at hand, no interference was warranted with the decision or impugned action itself. 7. As regards the question whether the plaintiffs were governed by statutory rules or not, learned counsel relied strongly on Pakistan Telecommunication Co. Ltd v. Iqbal Nasir and others PLD 2011 SC 132=2011 PLC (C.S.) 623, (three-member Bench) ("Iqbal Nasir"), in which it had been held that the rules of service in relation to PTCL were non- statutory in nature. It appears that the attention of the Bench was not invited to any of the earlier decisions of the Supreme Court as relied upon by learned counsel for the plaintiffs (see Para 2 above). Learned counsel for PTCL submitted that although the decision Iqbal Nasir was pronounced several months prior to the hearing in Masood Bhatti, the attention of the subsequent Bench had not been drawn to the earlier decision. Learned
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counsel respectfully submitted that the two decisions could not stand together insofar as was presently relevant and their view was that Iqbal Nasir was the controlling authority. Thus, they opposed the submission by learned counsel for the plaintiffs that their service matters were regulated by statutory provisions. With specific reference to the plaintiff in Suit 1031 of 2010, It was submitted that the record clearly showed that he had in fact been employed on or about 31-8-1996 and thus had been employed by PTCL and could not have been an employee of either the T&T Department or PTC. According to learned counsel, the 1996 Regulations were fully applicable on their own terms, and as noted, contended that these had been properly adhered to. In this context, learned counsel submitted further (without prejudice to their other submissions) that in any case all that was required was a substantial compliance of the procedural requirements, which had been faithfully applied. It was also submitted that even if the plaintiffs were regulated by any statutory rules or regulations, they were in all material respects the same as the 1996 Regulations in substantive content and hence the plaintiffs had not been prejudiced in any manner. Learned counsel further contended that the plaintiff had in fact availed many benefits under the 1996 Regulations with regard to various aspects of their employment, such as salaries, postings, etc. It was submitted that the plaintiffs could not be allowed to approbate and reprobate. Learned counsel placed reliance on certain case law as well, and prayed that the applications be dismissed. 8. Exercising his right of reply, learned counsel for the plaintiffs submitted that the factual position of the relevant parties in lqbal Nasir was rather different from that of those in Masood Bhatti, and therefore the two decisions were not in conflict as submitted. His case was that the plaintiffs cases were fully covered by Masood Bhatti, which therefore was the controlling authority insofor as the present matters were concerned. 9. I had granted permission to learned counsel to file synopses and all three did so, referring therein to the cases that they relied upon. The cases cited will be considered below if and to the extent as necessary and appropriate. 10. I have heard learned counsel as above, examined the record with their assistance and considered the case-law relied upon. The first matter that requires consideration is the stated conflict between Masood Ahmed Bhatti and others v. Federation of Pakistan and others 2012 SCMR 152 and Pakistan Telecom Munication Co. Ltd. v. Lqbal Nasir and others PLD 2011 SC 132, and if such conflict does exist, what ought to be the approach taken by this Court. As already noted, both decisions are by three-member Benches of the Supreme Court. The judgment in lqbal Nasir was pronounced on 23-12-2010, while the hearing in Masood Bhatti took place on 11-8-2011, with the decision being announced on 7-10-2011. As presently relevant, the background to these decisions is a judgment of a Division Bench of this Court pronounced on 3-6-2010. The decision is reported as Nasiruddin Ghori v. Federation of Pakistan and others 2010 PLC 323. By that decision, a number of connected petitions, largely filed by employees of PTCL, were disposed off. Two questions were considered by the Division Bench (pg. 324). The first was whether PTCL was amenable to constitutional (or writ) jurisdiction under Article 199 of the Constitution. To this question an affirmative answer was given. The second question was whether the petitioners before the Court could seek redress of their grievances by way of constitutional petitions. Most of the petitioner- employees were aggrieved by the application (or non-application as the case may be) of a voluntary severance scheme that had been initiated by PTCL, although some of the petitions raised other matters in relation to service, such as grievances with regard to promotion and the non- implementation of a decision of the Services Tribunal. The Division Bench concluded (see pp.345- 347 and 349) that PTCL did not have statutory rules of service and the writ jurisdiction of the High Courts could only be invoked where there were such rules. The petitions were accordingly dismissed as not maintainable.
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11. A number of employees preferred appeals to the Supreme Court. Some of these appeals came up for, hearing before the three-member Bench that gave judgment in Iqbal Nasir. It is to be noted that these appeals were taken up along with a number of other appeals, some from the Hyderabad circuit of this Court, and others from the Lahore and Peshawar High Courts. It may also be noted that in some of the eases, the High Courts had given relief to the employees and therefore, in those cases PTCL was the appellant. PTCL contended that it was not amenable to constitutional jurisdiction tinder Article 199. However, the Supreme Court held (at pg. 146) that it was so amenable. The matter of whether the rules of service of PTCL were statutory or not was considered at pp.146-149, and it was held that the rules were non-statutory. The appeals of the employees were accordingly dismissed. Thus, the decision of the Division Bench of this Court in Nasiruddin Ghori was upheld on both counts. 12. Several months after the decision in lqbal Nasir, three of the appeals that had been taken by PTCL employees against the decision in Nasiruddin Ghori came up before the differently constituted three-member Bench that gave judgment in Masood Bhatti. The only question was whether the rules of service as applicable to the employee-appellants were statutory in nature. The Supreme Court undertook a detailed survey of the relevant legislation, including the 1991 and 1996 Acts, and the position of the appellants, who had started out as employees of the T&T Department. It was concluded, by reason of the various statutory provisions as found applicable, that the rules of service carried over from the initial employment and were therefore statutory-in nature. Since the merits of the case had not been considered by the High Court (by reason of its finding on maintainability), the judgment was set aside insofar as it related to the appellants and the relevant writ petitions were deemed to be pending before this Court. 13. It would therefore seem that this case raises, in an acute form, the question that does on occasion confront a High Court: what is the proper approach to take when presented with two conflicting decisions of the Supreme Court? This issue is of course not unique to Pakistan and can, and does, arise in any jurisdiction where the court of final appeal normally sits not en bane but in benches (or panels) of varying strength. Two points may be respectfully made before proceeding further. Firstly, I approach the matter entirely from the perspective of the High Court (i,e, of a court subordinate to the Supreme Court), which is bound by any decision on a question of law or enunciation of principle of law by the latter as provided by Article 189 of the Constitution. Secondly, a court of law must, in the end, decide the case before it and if that requires the court to address the question posed in this pant, then it must do so no matter how formidable and challenging this may be. With these points in mind, I now turn to the delicate, difficult and daunting task at hand. 14. Two situations can be envisaged. One is where the conflicting decisions arc by Benches of unequal strength. This is of course, not the matter at hand and in any case the law is well settled that the High Court is bound by the decision of the larger Bench. The second situation, which is the matter at hand, is where the conflicting decisions are by coequal Benches. Here again, two situations can be envisaged. The first is where the attention of the subsequent Bench was drawn to the decision of the earlier Bench. The rule governing, this situation was stated by a five-member Bench in Cowasjee and other's v. Karachi Building Control Authority and others 1999 SCMR 2883. The Supreme Court was there called upon to resolve two conflicting three-member Bench decisions in which the earlier decision was 'cited before, but not considered by, the subsequent Bench. The rule was stated as follows (pg.2912): "19. Before concluding the above judgment, we may refer to the conflict of views between the two judgments of this Court in the. Case of Abdul Razak v. Karachi Building Control Authority and others (PLD 1994 SC 512) (supra) and Multiline Associates v. Ardeshir Cowasjee and others, (PLD 1995 SC 423) (also reported in 1995 SCMR 362) (supra) noticed in the leave granting order which is to be resolved. The former case was decided on 31-3-1994 by a Bench comprising Ajmal Mian, Sajjad Ali
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Shah and Saleem Akhtar, JJ. (as then they were), whereas in the latter case judgment was rendered on 22-1-1995 by ..a Bench comprising Sajjad Ali Shah, C.J., Mir Hazar Khan Khoso and Muhammad Munir Khan, JJ. (as then they were). It appears that while deciding the latter case notice of the above earlier judgment of Abdul Razak was not taken though, according to Mr. Naimur Rehman, the same was cited. It may be pointed out that a Bench of the same number of Judges of the same High Court, or of the Supreme Court, cannot deviate from the view of an earlier Bench as rightly has been held in the case of Multiline Associates v. Ardsher Cowasjee and others PLD 1995 SC 423 (supra) in relation to the High Court." (emphasis supplied) After considering the conflicting views that had been taken in the two decisions, it was held as follows (pg. 2917):--- "We, therefore, hold that the judgment in the case of Multiline Associates v. Ardsher Cowasjee and others (PLD 1995 SC 423) (supra) to the extent of inconsistency to the judgment in the case of Abdul Razak v. Karachi Building Control Authority and others (PLD 1994 SC 512) (supra) does not reflect the correct legal position and, thus, the same is overruled to that extent." ' Since in such a situation the subsequent Bench could not have deviated from the view taken by the earlier Bench, it necessarily follows that the High Court; must regard itself as bound by the latter and not the former decision. However, two points may respectfully be made in the present context. Firstly, it may be that the subsequent decision considers and explains the earlier decision (which was not the situation in respect of the conflicting cases considered by the five-member Bench in Ardeshir Cowasjee). In such A situation, it is respectfully submitted that no question of a conflict ought to arise because the subsequent bench has authoritatively (i,e, from the respective of the subordinate courts) explicated the earlier decision. In Muhammad Shahnawaz v. Karachi Electric Supply Co. Ltd. 2011 PLC (C.S.) 1579, I had (at pg. 1586 et. Seq.; paras 9-11) suggested that in such a situation the High Court would be bound by the ' explication of the earlier decision as given the subsequent decision. Secondly, the words used in the rule ("cannot deviate from") indicate that the conflict must be between the ratio (or any part thereof) of the earlier decision and the ratio (or any part thereof) of the subsequent decision. It is of course well-settled that a court subordinate to the Supreme Court is bound even by an obiter A dictum of the latter if it comes within the scope of Article 189. However, the Supreme Court is obviously not so bound. Therefore, if the relevant (i,e, supposedly conflicting) view in the earlier decision is obiter, but in the later decision is part of its ratio, then there has been no "deviation" from the former decision by the latter and it is respectfully suggested that the High Court must consider itself bound by the subsequent decision Likewise, where the conflicting views are obiter in both cases, then again there has been no "deviation" within the meaning of the rule. However, in this situation the High Court would be bound by both views (though each may be obiter) and it is respectfully suggested that the matter would then have to be dealt with in terms of the approach stated in the paras infra. 15. The second situation which can ,involve conflicting decisions of co-equal Benches is of course the one at hand, where (it appears) the attention of the subsequent Bench was not drawn to the earlier decision. What is the proper approach for the High Court to take? One possible solution is to reason by analogy from the rule laid down in Ardeshir Cowasjee noted in the preceding para. The subsequent Bench could not have deviated from the earlier decision if its attention had been drawn to it. It would have had either to follow it or refer the matter for constitution of a larger Bench. In either case, it is the earlier decision that would have been in the field. Therefore, by analogy, it is the earlier decision that must be applied by the High Court. In my view, this approach, while attractive cannot in the end be regarded as providing an acceptable solution from the High Court's perspective. Firstly, it does not take into consideration the 'situation where the relevant (i,e, supposedly conflicting) view in the earlier decision is obiter, but in the later decision is part of its ratio. As respectfully suggested, in such a situation, it is the later and not the earlier decision that would have to be followed by the High Court. Secondly, this approach also does not take into
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consideration the possibility that had the subsequent Bench been aware of the earlier decision, it may have clarified and explained its meaning such that (from a subordinate…
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