Full Judgment Text & Judicial Ruling

2020 P L C (C.S.) 1211 [Islamabad High Court] Before Miangul Hassan Aurangzeb, J GHULAM SARWAR and others Versus FEDERATION OF PAKISTAN through Secretary, Ministry of Information and Technology and others Writ Petitions Nos.2114, 2345, 3108, 3625 of 2016 and 483, 494 to 496 of 2018, decided on 20th February, 2020. (a) Pakistan Telecommunication Corporation Act (XVIII of 1991)--- ----Ss.9 & 20 (since repealed)---Pakistan Telecommunication (Re-Organization) Act (XVII of 1996), Ss. 35(2) & 36---Pakistan Telecommunication Corporation Service Regulations, 1996---Employees of Pakistan Telegraph and Telephone Department transferred to Pakistan Telecommunication Corporation and then to Pakistan Telecommunication Company Limited---Retirement under Voluntary Separation Scheme---Terms and conditions of service---Employees were seeking similar pensionary benefits as extended by the Government for retired civil servants---Validity--- Pakistan Telecommunication Corporation Service Regulations, 1996, had not been notified in the official gazette and same did not have a statutory status---Employees of Pakistan Telecommunication Corporation after enactment of Pakistan Telecommunication Corporation Act, 1991 and governed by Pakistan Telecommunication Corporation Service Regulations, 1996, could not agitate a dispute with regard to terms and conditions of their service by filing constitutional petition---Section 9 of Pakistan Telecommunication Corporation Act, 1991 and Ss. 35 & 36 of Pakistan Telecommunication (Re-Organization) Act, 1996, did protect the terms and conditions of service of departmental employees---Departmental employees who had not opted Voluntary Separation Scheme could agitate grievance regarding terms and conditions of their service in constitutional jurisdiction of High Court---Retirement in the ordinary course would entitle employee having pensionable service to pension---Employees who had opted Voluntary Separation Scheme having twenty years of service were eligible for early retirement and enhanced gross pension---None of the petitioners had twenty years of service to make them eligible for enhanced gross pension under Voluntary Separation Scheme---If petitioners had not opted Voluntary Separation Scheme then they would remain in service for a period so as to make their service pensionable---Had petitioners completed twenty years of service then they would have been entitled to the payment of pension on retirement---Petitioners had not retired by operation of any statutory rules but due to the option exercised by them for Voluntary Separation Scheme and constitutional petition was not maintainable---Controversial question of fact could not be resolved without recording of evidence and the exercise was not permissible in constitutional jurisdiction---Petitioners had received bonus and other benefits before their retirement in the ordinary course---Employees had opted for Voluntary Separation Scheme and they had not been paid any pension from their retirement---Employees had received benefits under Voluntary Separation Scheme and had accepted their disentitlement to the payment of pension---Constitutional petition had been filed after more than nine years from exercising option of Voluntary Separation Scheme---Power of High Court to issue an appropriate writ, order or direction was discretionary---High Court could refuse to exercise constitutional jurisdiction if a party was guilty of delay and laches---No plausible explanation had been put forth for inordinate delay in filing of constitutional petitions---Constitutional petitions being not maintainable were dismissed, in circumstances. Pakistan Telecommunication Company Limited v. Iqbal Nasir PLD 2011 SC 132; State Bank of Pakistan v. Imtiaz Ali Khan 2012 SCMR 280; P.T.C.L. v. Masood Ahmed Bhatti 2016 SCMR 1362; Pakistan Telecommunication Employees Trust (PTET) v. Muhammad Arif 2015 SCMR 1472; Muhammad Riaz v. Federation of Pakistan 2015 SCMR 1783; Pakistan Telecommunication Company Limited v. Muhammad Dilpazir 2016 PLC 367; Khursheed Latif v. Federation of Pakistan 2010 SCMR 1081; Ahmad and others v. Ghama and others 2005 SCMR 119; Shahbaz Khan Mohmand v. Islamic Republic of Pakistan 1975 SCMR 4; Muhammad Sadiq and others v. The Commissioner Rawalpindi 1973 SCMR 422 and Masood Ahmad Bhatti v. Federation of Pakistan 2012 SCMR 152 rel.

(b) Constitution of Pakistan--- ----Art. 199---Constitutional petition---Laches, doctrine of---Applicability---When a petitioner approaches the High Court with undue delay, the principle of laches disentitles him from discretionary relief under Art.199 of the Constitution, particularly when there is no plausible explanation on the petitioner's part for his blameworthy dilatory conduct. (c) Constitution of Pakistan--- ----Art. 199---Constitutional jurisdiction of High Court---Scope---Controversial question of fact could not be resolved without recording of evidence, which exercise was not permissible in constitutional jurisdiction. Muhammad Asif Mehmood, Nawazish Ali Gondal and Jameel Hussain Qureshi for Petitioners (in W.Ps.Nos.2114, 2345, 3108 and 3625 of 2016). Mubashar M. Jaffar Qasuri for Petitioners (in W.Ps. Nos.483, 494, 495 and 496 of 2018). Arshid Mehmood Kiani, learned Deputy Attorney-General and Nadeem Khan Khakwani, learned Assistant Attorney-General. Shahid Anwar Bajwa, Tassadaq Hanif, Shaifque-ur-Rehman Dab, Habib Ahmed Bhatti, and Akhlaq Ahmad Bhatti for P.T.C.L. Raheel Zafar, Manager (Legal) P.T.C.L. Barrister Ahsan Jamal Pirzada for P.T.E.T. for Respondent (in W.P.No.494/2018). Muhammad Latif Saeedi, Advocate for P.T.E.T. Sheikh Matee-ur-Rehman, Manager (Legal) P.T.E.T. Date of hearing: 13th February, 2020. JUDGMENT MIANGUL HASSAN AURANGZEB, J.----Through this judgment, I propose to decide the writ petitions listed in "Schedule-A" hereto since they entail common questions of law and fact. All the petitioners who are retired employees of the Pakistan Telecommunication Company Limited ("P.T.C.L.") after having opted for the Voluntary Separation Scheme ("V.S.S.") introduced by P.T.C.L. and having received all the benefits under the said scheme, seek a direction to the respondents to pay their pension along with increases in pension at the same rate as announced by the Government for retired civil servants. 2. Some of the petitioners were employed in the Telephone and Telegraph Department ("the T&T Department") and transferred to the Pakistan Telecommunication Corporation ("P.T.C.") by operation of Section 9 of the Pakistan Telecommunication Corporation Act, 1991 ("the 1991 Act") and retired while in service of P.T.C. or further transferred to P.T.C.L. by operation of Sections 35 and 36 of the Pakistan Telecommunication (Re-organization) Act, 1996 ("the 1996 Act") whereas the others were employed in P.T.C. after the enactment of the 1991 Act. The petitioners in the first category would hereinafter be referred to as "the departmental employees". 3. The 1991 Act was enacted on 25.11.1991. Section 9(1) of the said Act provided inter alia that all departmental employees shall, on the establishment of P.T.C., stand transferred to and become employees of P.T.C. on the same terms and conditions to which they were entitled immediately before such transfer. Section 9(2) of the said Act provided that the terms and conditions of service of the departmental employees transferred to P.T.C. shall not be varied by P.T.C. to their disadvantage. 4. The 1996 Act was enacted on 13.10.1996. Under Section 35 of the said Act departmental employees or employees appointed by P.T.C. could be transferred to become employees of P.T.C.L. The proviso to Section 35(2) provided that the terms and conditions of service of such transferred employees shall not be varied to their disadvantage. Additionally, the proviso to Section 36(1) of the said Act provided that the Federal Government shall guarantee the existing terms and conditions of service and rights including pensionary benefits of the transferred employees, whereas Section 36(2) provided that the terms and conditions of service of any transferred employee shall not be altered adversely by P.T.C.L. except in accordance with the laws of Pakistan or with the consent of the transferred employees and award of appropriate compensation. 5. It is not disputed that on 15.11.2007, P.T.C.L. introduced a V.S.S. which could be opted for by regular employees of P.T.C.L. under the age of 58. The employees interested in opting for V.S.S. had sixty days from 15.11.2007 to complete and submit the option/waiver form to the V.S.S. Support Centre. P.T.C.L. reserved to itself the power to review the applications for the V.S.S. and decide whether or not to accept such applications. It was clearly mentioned in the terms of the V.S.S. that an employee who chooses not to opt for the V.S.S. would remain employed at P.T.C.L. under the existing terms of employment. The letters addressed by P.T.C.L. to the eligible employees clearly provided that the employees' decision either to participate or not to participate in the V.S.S. programme would be voluntary and at their own will. 6. Employees opting for the V.S.S. were to be paid severance pay, separation bonus, medical benefits, leave encashment, housing allowance, and provident fund. Employees with less than ten years of service were to be paid a lump sum bonus of Rs.3,00,000/- whereas employees with service between 10 to 20 years were to be paid a lump sum bonus of Rs.4,50,000/-. The terms of the V.S.S. also made it clear that the regular status of employees with a minimum of twenty years of service were eligible for early retirement and enhanced gross pension. The pension figure was to be enhanced by increasing the employees' qualifying years of service by five years subject to a maximum of thirty years, and increasing the final sum by 7.5%. 7. The option for the V.S.S. exercised by the petitioners was accepted by P.T.C.L., and they were paid all benefits under the V.S.S. Several years after receiving such benefits under the V.S.S., the petitioners have invoked the Constitutional jurisdiction of this Court and seek a direction to P.T.C.L. and Pakistan Telecommunication Employees Trust ("P.T.E.T.") to pay their pension along with such increases as were announced by the Federal Government for civil servants from time to time. CONTENTIONS OF THE LEARNED COUNSEL FOR THE PETITIONERS:- 8. Learned counsel for the petitioners submitted that the petitioners had opted for the V.S.S. which was introduced by P.T.C.L. on 15.11.2007; that in the V.S.S. forms prepared by P.T.C.L., it was not mentioned whether the employees who opt for the V.S.S. would be deprived of pensionary benefits; that the petitioners signed the V.S.S. forms under coercion; that the petitioners had been threatened by P.T.C.L. that they would be thrown out if they did not opt for the V.S.S.; that the words "Surplus", "Not Needed" and "redundant" on the V.S.S. calculation sheet led the petitioners to believe that if they did not opt for the V.S.S., their services would be terminated; that under the Pension Rules, 1973, ten years of service qualifies an employee for pensionary benefits; that in the V.S.S. forms prepared by P.T.C.L., it was stated that in order to qualify for early retirement, an employee had to have a minimum of twenty years of qualifying service; that it should have been clearly mentioned in the V.S.S. forms that those who opted for the V.S.S. would not be entitled to pension if they had ten years of service; that the petitioners are not just entitled to the payment of their pensionary benefits but also to the increase in pension at the same rate as given by the Federal Government to civil servants from time to time; that the protection as to the petitioners' terms and conditions of service afforded under Section 9 of the 1991 Act and Sections 35 and 36 of the 1996 Act could not be denied to them simply because they had opted for the V.S.S.; that the provision in the V.S.S. forms making a minimum of twenty years of service a condition for the eligibility of early retirement and payment of enhanced gross pension was unlawful and in violation of the protection of the petitioners' terms and conditions of service under Section 9 of the 1991 Act and Sections 35 and 36 of the 1996 Act; that even though some of the petitioners were employed in P.T.C. after the enactment of the 1991 Act, they were nonetheless entitled to be given the protection afforded to them under Sections 35 and 36 of the 1996 Act; and that the change in the petitioners' terms and conditions of service on the ground that they had opted for the V.S.S. is in contravention of the said provisions of the 1991 Act and the 1996 Act. 9. Furthermore, it was submitted that P.T.C.L. had paid pension to the employees who had opted for the V.S.S. introduced in 1997-98; that under the V.S.S. introduced in the year 2014, employees with less than ten years of service had been given pension; that by depriving the petitioners who opted for the V.S.S. in 2007 of their pension, P.T.C.L. meted out discriminatory treatment to them; and that since all the petitioners had ten years of qualified service, they were entitled not just to the payment of pension but also the periodic increases in pension commensurate to the ones announced by the Federal Government for civil servants from time to time. Learned counsel for the petitioners prayed for the writ petitions to be allowed in terms of the relief sought therein. CONTENTIONS OF THE LEARNED COUNSLE FOR P.T.C.L.:- 10. Learned counsel for P.T.C.L. submitted that some of the petitioners were employed in P.T.C. after the enactment of the 1991 Act whereas others were employed in the T&T Department prior to the enactment of the 1991 Act; that for instance, 23 out of the 42 petitioners in Writ Petition No.3625/2016 were employed in P.T.C. whereas the remaining 19 petitioners were employed in the T&T Department; that similarly 39 out of the 100 petitioners in Writ Petition No.2114/2016 were employed in P.T.C. whereas the remaining 61 petitioners were employed in the T&T Department; that in view of the law laid down in the case of Pakistan Telecommunication Company Limited v. Iqbal Nasir (PLD 2011 SC 132), the petitioners employed in P.T.C. after the enactment of the 1991 Act could not file a writ petition to agitate a grievance regarding the terms and conditions of their service; that in the said judgment, the Hon'ble Supreme Court held inter alia that the terms and conditions of service of employees employed in P.T.C. after the enactment of the 1991 Act were not governed by statutory regulations; that in the said judgment, it was also held that the V.S.S. was also not under any statutory rules; that since the terms of the V.S.S. were not governed by any statutory rules, an employee who is aggrieved by any of its terms or who seeks their enforcement cannot agitate his grievance in the Constitutional jurisdiction of this Court; that in the case of State Bank of Pakistan v. Imtiaz Ali Khan (2012 SCMR 280), it was held inter alia by the Hon'ble Supreme Court that since the employees of the State Bank of Pakistan who had opted for the V.S.S. had neither retired from service under the State Bank of Pakistan Officers (Pension-cum-Gratuity) Regulations, 1980 nor by application of the State Bank of Pakistan Staff Regulations, 1993 but had left the service by exercising the option of accepting the V.S.S., therefore, their cases were squarely governed and controlled under the terms and conditions as were clearly spelt out in the V.S.S.; and that in the judgment dated 27.05.2016 passed by the Hon'ble Lahore High Court in Writ Petition No.5978/2011 titled S.M. Abu Talib Naqvi and others v. President/Chief Executive Officer, PTCL. it was held inter alia that the employees of P.T.C.L. who had availed the V.S.S. package were not entitled to the increase in pension etc. as were allowed to civil servants vide Finance Division's Office Memoranda dated 05.07.2010. 11. Learned counsel for P.TC.L. further submitted that since the petitioners had more than ten years of service but had less than twenty years of service, they were not qualified for or entitled to the payment of enhanced gross pension under the V.S.S.; that the V.S.S. was launched on 15.11.2007 and the final payment to all the employees who opted for the V.S.S. was made by 04.04.2008; that the petitioners took all the financial benefits under the V.S.S. and severed their relationship with P.T.C.L.; that for eight years, the petitioners did not agitate the matter relating to their pension; and that the petitions filed with an inordinate delay are liable to be dismissed due to laches. 12. Furthermore, it was submitted that Section 36(2) of the 1996 Act provides that the terms and conditions of any transferred employee shall not be adversely altered by P.T.C.L. except in accordance with the laws of Pakistan or with the consent of the transferred employees and the award of appropriate compensation; that P.T.C.L. complied with the requirements of Section 36(2) of the 1996 Act by obtaining the petitioners' consent regarding the execution of the V.S.S., and by making payment of compensation under the V.S.S.; that under the terms of the V.S.S., only the employees having twenty years of service could be given pensionary benefits whereas the employees with less than twenty years of service were given a bonus in lump sum; that it was available to the petitioners not to have opted for the V.S.S.; that the acceptance of a V.S.S. amounts to a written agreement between the parties; that the V.S.S. was not a statutory scheme but was in the nature of an offer which was accepted by the petitioners; that whether the petitioners were compelled or coerced to opt for the V.S.S. is a disputed question of fact which cannot be resolved in the Constitutional jurisdiction of this Court; and that about 29,900 employees had opted for the V.S.S., out of which only a handful employees have filed writ petitions asserting that they had opted for the V.S.S. under coercion. Learned counsel for P.T.C.L. prayed for the writ petitions to be dismissed as not maintainable. 13. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the writ petitions have been set out in sufficient detail in paragraphs 2 to 7 above, and need not be recapitulated. WHETHER THE PETITIONS FILED BY THE PETITIONERS EMPLOYED BY P.T.C. AFTER THE ENACTMENT OF THE 1991 ACT ARE MAINTAINABLE:- 14. At the very outset, I deem it appropriate to deal with the objections taken by the learned counsel for P.T.C.L. to the maintainability of the petitions. It first needs to be determined whether those petitioners who were employed in P.T.C. after the enactment of the 1991 Act could agitate a grievance regarding the terms and conditions of their service before this Court in its Constitutional jurisdiction. The answer to this question would depend on whether the terms and conditions of such an employee of P.T.C. are governed by statutory rules or regulations. If such rules or regulations are not statutory, the principle of 'master and servant' would govern the relationship between the employee and the employer organization. In the case of Pakistan Telecommunication Company Limited v. Iqbal Nasir (supra), it has explicitly been held that the Pakistan Telecommunication Corporation Service Regulations, 1996 framed pursuant to Section 20 of the 1991 Act had not been notified in the Official Gazette. Since the said Regulations did not have a statutory status, the employees of P.T.C. employed after the enactment of the 1991 Act and governed by the said Regulations could not agitate a dispute regarding the terms and conditions of their service (including their rights to receive pension) by filing a petition under Article 199 of the Constitution. Therefore, the writ petitions filed by such petitioners are liable to be dismissed on that score alone. WHETHER THE PETITIONS FILED BY THE DEPARTMENTAL EMPLOYEES WHO AVAILED THE BENEFITS UNDER THE V.S.S. ARE MAINTAINABLE:- 15. As regards the departmental employees who were employed in the T&T Department and transferred to P.T.C. and subsequently to P.T.C.L. by dint of Section 9 of the 1991 Act and Sections 35 and 36 of the 1996 Act, their status would be different from those employees who had been employed in P.T.C. after the enactment of the 1991 Act or who were employed in P.T.C.L. after the enactment of the 1996 Act. Section 9 of the 1991 Act and Sections 35 and 36 of the 1996 Act protected the terms and conditions of service of the departmental employees. In view of the law laid down by the Hon'ble Supreme Court in the cases of P.T.C.L. v. Masood Ahmed Bhatti (2016 SCMR 1362), Pakistan Telecommunication Employees Trust (PTET) v. Muhammad Arif (2015 SCMR 1472) and Muhammad Riaz v. Federation of Pakistan (2015 SCMR 1783) such employees (i.e. departmental employees) could agitate a grievance regarding the terms and conditions of their service in the Constitutional jurisdiction of this Court. However, the door of this Court exercising Constitutional jurisdiction cannot be left ajar for those departmental employees who had also opted to avail the benefits under the V.S.S. I say this, because the Hon'ble Supreme Court in the case of Pakistan Telecommunication Company Limited through Chairman v. Iqbal Nasir (supra) held as follows:- "29. As to the case of the employees seeking the benefit of VSS, no relief could be granted to them by the High Court in view of the non-maintainability of their writ petitions on the ground that their services were not governed by any statutory rules and even the VSS was not offered under, or in terms of, any statutory provisions." (Emphasis added) 16. On the basis of the law laid down by the Hon'ble Supreme Court in the case of Pakistan Telecommunication Company Limited v. Iqbal Nasir (supra), this Court, vide order dated 16.02.2017, dismissed a number of writ petitions as not maintainable wherein the petitioners had sought to impeach the V.S.S. entered into by them on the ground that they were coerced or arm-twisted into doing so. 17. Additionally, the Hon'ble Lahore High Court vide judgment dated 27.05.2016 passed in Writ Petition No.5978/2011 titled S.M. Abu Talib Naqvi v. President/Chief Executive Officer PTCL (supra) held that the petitioners who had availed the V.S.S. package were not entitled to the relief granted vide Finance Division's Office Memoranda issued on 05.07.2010 regarding increase in pension, medical allowance and in family pension. 18. Now, it needs to be determined whether the petitioners are agitating a dispute arising from and related to the V.S.S. which they had opted for and had received benefits thereunder years ago. Retirement in the ordinary course would entitle an employee having pensionable service to pension. Under the terms of the V.S.S. opted for by the petitioners, an employee with twenty years of service was eligible for early retirement, and upon such early retirement the employee was entitled to enhanced gross pension. It was also explained in the V.S.S. forms that the employees with twenty years of service would be paid their pension in addition to the benefits under the V.S.S. For the purposes of clarity, the said explanation is reproduced herein below:-

(Emphasis added) 19. It is an admitted position that none of the petitioners had twenty years of service to make them eligible for receiving enhanced gross pension under the V.S.S. Nonetheless, the petitioners assert that on account of the statutory protection under Section 9 of the 1991 Act and Sections 35 and 36 of the 1996 Act, their terms and conditions of service, including their entitlement to receive pension with periodic increases, could not have been adversely affected by the V.S.S. In other words, the petitioners want pension to be paid to them in the same manner as was being paid to the employees with pensionable service who had not opted for the V.S.S. It is with this avowed purpose in mind that the petitioners have thrown a challenge to the provision in the V.S.S. which only entitles an employee having twenty years of service to early retirement and pension. Therefore, the claim for pension or increase in pension made by the petitioners who had taken benefits under the V.S.S. could not be separated from the V.S.S. 20. But for the option for the V.S.S. exercised by the petitioners, they would have continued to remain in service for a period so as to make their service pensionable. There would have been no occasion for this dispute to have arisen had the petitioners not opted for the V.S.S. Had the petitioners completed twenty years of service, they would have been entitled to the payment of pension upon retirement. P.T.C.L., in its written arguments, had taken a categorical…

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