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Petitioner: Mansoor-ul-Haq Solangi VS Respondent: Federation of Pakistan and others
Court Name: Sindh High Court Judge(s): Syed Hassan Azhar Rizvi, Adnan-ul-Karim Memon Title: Mansoor-ul-Haq Solangi vs Federation of Pakistan and others Case No.: C.P No.D-5608 of 2014 Date of Judgment:2018-04-02 Reported As: 2018 SHC 591 Result: Petition disposed of
Judgment ADNAN-UL-KARIM MEMON, J:- Through the instant Petition, the Petitioner has sought following relief(s). i) Declare that the Petitioner is liable to receive entire arrears of salaries and allowances w.e.f 30.06.1986 to 12.01.1993 of the post of Senior Manager/Deputy General Manager grade E.V with 22% interest and markup allowed by the Learned Tribunal in its judgment dated 05.10.2000 and merged into the judgment of the Hon'ble Supreme Court Pakistan reported as 2004 SCMR 1308 . ii) Declare that the Petitioner having been reinstated into service w.e.f 13.1.1993 by the Hon'ble Supreme Court of Pakistan is liable to be assig ned proper seniority and status over and above Mr. Ghulam Sarwar Baloch, Col. Retried Akbar Hussain, Abdul Bari Khan, Naseem-ul-Haq Satti and Shahid Zubair Managing Director/Chairman of the Respondent No.2 in terms of the proforma promotions w.e.f. 1990, the date the said persons were promoted in grade D-III as General Manager and as Managing Directors/Chairman D-1: and order for the payment of all the arrears of salaries monetary/consequential benefits in pursuance of the judgment dated 05.10.2000 of the tribunal and merged into the judgment of the Hon'ble Supreme Court of Pakistan reported supra. iii) Declare that the Petitioner is fit for regular and substantive promotion of Grade D-1 on the basis of his fitness; eligibility and number one seniority and the length of service; including his qualification as M.A, LL.B and High Caliber experience and knowledge at the Bar as an Advocate of the High Court. iv) Declare that the Respondent No.2 is bound to pay to the petitioner at once the Provident Fund, gratuity w.e.f. 15.10.1970 and other retiring service benefits and golden hand shake and all other reliefs and facilities that were given to its other employees of the respondents w.e.f 30.06.1986 as of his fundamental right in pursuance of 1991 SCMR 1041 and in pursuance of their rules and regulations and under Article 25 (1) of the Constitution of the Islamic Republic of Pakistan 1973.
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v) Declare that the Petitioner is entitled to receive the entire salaries and allowances w.e.f. 13.01.1993 to 21.12.2005 with proper pay fixation as per his seniority ad status with 22% interest and markup on all the accrued benefits as of his fundamental rights at once. vi) Declare that the application dated 18.01.2005 duly supported by an Affidavit of the petitioner addressed to the respondents has attained finality for the purpose of the genuine of the claims of the petitioner and immediate payment to him with 22% interest and markup on his entire claims through. 2. Brief facts of the case as per pleadings of the parties are that the Petitioner was an employee of Pakistan Industrial Development Corporation Limited (P.I.D.C) and served in its unit namely , Harnai Woolen Mills limited, from where his services were requisitioned, in the year 1986 to Pakistan Automobile Corporation Company Limited (PACO)/Respondent No.2.The P.I.D.C in its letter dated 23.6.1986 relieving the Petitioner mentioned that the Petitioner will have no lien with them, which would be maintained by the Respondent No.2, where he was permanently absorbed. However , M/s Naya Dur Motors (Pvt) Ltd terminated the service of the Petitioner on26.09.1995, and the petitioner impugned this termination letter by filing a Service Appeal No. 773(K) of 1998 before the learned Federal Service Tribunal (FST). The FST vide its Judgment dated 06.10.2000 allowed the Appeal of the Petitioner and directed the Respondent No.2 to reinstate him in service with full back benefits and on 11.10.2000 the Petitioner reported to the Respondent No. 2, and in the meanwhile the Respondent No.2 challenged the Judgment of the FST before the Hon?ble Supreme Court, which vide its Judgment dated 06.05.2004, reported as Pakistan Automobile Corporation Company Vs. Mansoor-ul-Haque and 2 others (2004 SCMR 1308 ), partly allowed the Appeal. Pursuant to the aforesaid judgment dated 06.05.2004, Petitioner submitted his joining report on 20.5.2004 in the department and claimed arrears of pay and allowances and ancillary benefits vide letters dated 18.1.2005 and 19.5.2005.ThePetitioner has averred that his practice license as an advocate of High Court was suspended by Sindh Bar Council vide letter dated 08.01.2005, having joined the service of Respondent No.2. Petitioner being aggrieved by and dissatisfied with the inaction of Respondent No.2 filed C.P. No.D-688 of 2005 before this Court on 18.6.2005. However on 13.11.2006, the Petitioner filed an application under Section 151 CPC along with certified copy of Misc. Application No. 125 of 2006 filed on 01.03.2006 in his disposed of Service Appeal No. 773(K) of 1998 before the Federal Service Tribunal, in C.P. No.D-688 of 2005 before this Court, which was converted by this Court into a separate Constitution PetitionNo.D- 315 of 2007.However, in the intervening period, the Petitioner retired on attaining the age of superannuation on 21.12.2005. Both these Petitions were heard by learned Division Bench of this Court and same were dismissed vide a common Judgment dated 01.11.2011. The Petitioner filed two separate Civil Petitions No. 20-K and 22-K of 2012 before the Hon'ble Supreme Court against above cited common Judgment dated 01.11.2011.Besides, in the month of September 2006, the Petitioner filed a Civil Suit No. 1166 of 2007 before the learned Single Judge of this Court against the Respondent No. 2 and others for recovery and damages in the sum of Rs. 1017 Million. During proceedings before the Honorable Supreme Court in the Civil Petitions for Leave to Appeal, the Petitioner himself has filed a concise statement dated 19.08.2012 and has given notice dated 18.06.2012 of the same to the Respondents. The Petitioner attached details of his dues as Statement A" to the concise statement. In Civil Petition No. 20-Kof 2012 before the Hon'ble Supreme Court, the Petitioner prayed to direct the Respondents to grant all the service benefits including Pension and set aside the Judgment dated 01.11.2011 passed by the Hon'ble Supreme Court. Andin the Civil Petition No. 22-K of 2012, the Petitioner prayed to grant him the back benefits/salary and allowances/consequential relief as he was kept out of job illegally w.e.f. 13.01.1993 to 09.01.2005 by the Respondents. Petitioner also filed review application and in the Civil Review Petition No. 08-K and 09-K of 2014, the Supreme Court vide its Order dated 17.06.2014 observed that the Petitioner has not made claim for pension before High Court and having abandoned and not pressed claim of pension before this Court but despite such position, if he at all is entitled to receive pension from Respondent No.2 he may initiate proceedings for claiming of pension subject to law as there has been no independent determination of claim of pension of the Petitioner in these proceedings. And on 05.11.2014, the Petitioner filed the instant petition pursuant the observation of the Honorable Supreme Court. 3. Upon notice to the Respondents, the Respondent No. 2 filed parawise comments.
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4. Mr. Imtiaz Mansoor Solangi, learned Counsel for the Petitioner contended that service of the Petitioner was terminated by the Respondent No.2 vide Order 26.09.1995, which was set aside by the learned Federal Service Tribunal vide its Judgment dated 06.10.2000 and the back benefits were allowed to the petitioner . The Respondent No. 2 challenged this Judgment before the Hon?ble Supreme Court, which did not allow back benefits vide its Judgment dated 06.05.2004, thus, modified the FST Judgment to that extent. The Counsel for the Petitioner further narrated that on 18.06.2005 Petitioner filed C.P. No.D-688/2005 before this Court for service benefits. Besides, the Petitioner filed CMA No. 8236/2006 in C.P No. D-688/2005 along with certified copy of Misc. Petition No. 125/2006 in his disposed of Service Appeal No. 773-K/1998 with the Service Tribunal, which was converted into a separate C.P. No. D-315/2007. In the meanwhile, the Petitioner attained age of superannu ation on 21.12.2005 and retired from the service of Respondent No.2 and as per learned counsel such an order was issued by the Respondent No. 2. However, both these Petitions were dismissed by this Court vide a common Judgment dated 01.11.2011. The learned Counsel for the Petitioner asserted that the Judgment dated 01.11.2011 was impugned before the Hon'ble Supreme Court in Civil Petition No. 20-K and 22-K of 2012, which were dismissed vide Order dated 16.12.2013. He further added that the Petitioner filed Civil Review Petition No. 8-K and 9-K of 2014 before the Hon'ble Supreme Court, which were also dismissed vide order dated 17.06.2014 with permission to the Petitioner to initiate proceedings for claiming of pension if admissible. As such, the Petitioner has approached this Court for redressal of his grievances. Learned counsel for the Petitioner on the legal points involved in the matter stated that the previous orders passed by the Hon'ble Supreme Court stood merged in the order dated 17.06.2014; therefore, the Petitioner has right to claim pensionery benefits from the Respondent Organization, which have been denied to him since 1995 till the age of superannuation in the year 2005. The Petitioner further added that the issue of pension is a fundamental right as enshrined in the Constitution, 1973 and the Respondents cannot deny the rights accrued to the Petitioner. He further narrated that the learned Federal Service Tribunal vide its Judgments dated 06.10.2000 allowed all the back benefits to the Petitioner, which have been denied to him by the Respondent, which according to him is violation of Article 9, 23, 24 and 25 of the Constitution of the Islamic Republic of Pakistan 1973. He further stated that the Respondents, while issuing the reinstatement order in the year 2005, have not decided either to grant back benefits or treat that period as leave without pay. He further stated that there is no evidence that the Petitioner was gainfully employed; that the Petitioner has given sufficient documentary evidence that he was not gainfully employed anywhere during the intervening period; that the Petitioner has been discriminated by allow ing all the back benefits of the intervening period of the colleagues of the Petitioner who retired from their service; that the Respondents have not complied with dated 13.11.2017 passed by this Court directing the Respondents to give the details of the service benefits given to five officials namely Mr. Ghulam Sarwar Baloch, Mr. Abdul Bari Khan, Mr. Naseem-ul-Haque Satti, Mr. Shahid Zubair and Mr. Akbar Hussain of the Respondent-Company; that the Petitioner served the Respondent s with effect from 15.10.1970 to 21.12.2005, therefore, is entitled for retire ment dues and other ancillary benefits as given to the colleagues of the Petitioner by the Respondent-Company . He lastly prayed for allowing the instant Petition. In support of his contention he relied upon the case of Nayyar Ahmed Mazhari Vs. Board of Intermediate Education (2010 PLC (CS) 151), Muhammad Yaseen Vs. Secretary , Government of Punjab and others (2007 SCMR 1769 ), Chief Secretary , Government of the Punjab and others v. Muhammad Arshad Khan Niazi (2007 SCMR 1355 ), Muhammad Sarwar Vs. The Director Administration, FIA, ETC (NLR 1999 Service SC 61), Genera l Manager / Personal, Pakistan Railways H.Qs, Lahore and others v. Sheikh Murtaza (2013 SCMR 695), Lutfi Siddiqui Vs. The Secretary , Establishment Division, Rawalpindi and two others (1991 SCMR 125), Mrs. Munawar Sanni Vs. The Director , Army Education (1991 SCMR 135), Inspector- General of Police, Punjab Vs. Tariq Mahmood (2015 SCMR 77), Sohail Ahmed Usmani Vs. Director-General Pakistan Civil Aviation Authority and others (2014 SCMR 1843), Khyber Zaman and others Vs. Governor State Bank of Pakistan, Karachi and others (2005 SCMR 235),M.Q.M and others Vs. Province of Sindh and others (2014 CLC 335), Syed Muhammad Mobinul Islam Vs. Federal Government and other (1998 PLC (CS) 400), New Jubilee Insurance Company Ltd, Karachi Vs. National Bank of Pakistan, Karachi (PLD 1999 SC 1126), Tara Chan and others Vs. Karachi Water and Sewerage Board, Karachi and others (2005 SCMR 499), Hameed Akhter Niazi Vs. The Secretary Establishment Division, Government of Pakistan and others
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(1996 SCMR 1185), Government of Punjab through Secretary Education, Civil Secretariat Lahore and others Vs. Sameena Parveen and others (2009 SCMR 1), Government of Pakistan through Director-General, Ministry of Interior, Islamabad and others Vs. Farheen Rashid (2011 SCMR 1), Abdul Hafeez Abbasi and others Vs. Managing Director, PIA Corporation, Karachi and others (2002 SCMR 1034), General Manager / Circle Executive Muslim Commercial Bank Ltd and other v. Mehmood Ahmed Butt and others (2002 SCMR 1064), I.A Sherwani and others Vs. Govt. of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCMR 1041), Islamic Republic of Pakistan Vs. Dr. Safdar Mehmood (PLD 1983 SC 100), Muhammad Ilyas and three others Vs. Federation of Pakistan through Secretary, Ministry of Defence Secretariat Building, Islamabad and two others (2005 SCMR 631), Syed Yaqoob Shah Vs. XEN PESCO (WAPDA), Peshwar and another (2002 SCMR 1120), Pakistan through the Secretary, Ministry of Finance Vs. Muhammad Himayatullah Farukhi (PLD 1969 SC 407), Pakistan, through General Manager , PWR, Lahore Vs. Mrs. A.V. ISSACS (PLD 1970 SC 415), the Province of Punjab through the Secretary , Services and General Administration, Lahore Vs. Syed Muhammad Ashraf (1973 SCMR 304), Syed Sultan Shah Vs. Government of Baluchistan and another (1985 SCMR 1394 ), Noor Muhammad Vs. The Member Election Commission, Punjab and others (1985 SCMR 1178), Mazhar Ali Vs. Federation of Pakistan / President of Pakistan through the Secretary , Establishment Division, Cabinet Secretariat and two others (1992 SCMR 435), Government of NWFP Vs. I.A Sherwani and another (PLD 1994 SC 72), Mehar Zulfiqar Ali Babi and 3 others Vs. Government of Punjab through secretary , Local Government and Rural Development, Lahore and others (1997 SCMR 117), HAZRA (HILL TRACT) Improvement Trust through chairman and others Vs. Mst. QaisraElahi and others (2005 SCMR SC 678), Syed Sikandar Ali Shah Vs. Auditor-General of Pakistan and others (2002 SCMR 1124), the Federation of Pakistan through the Secretary , Establishment Division, Government of Pakistan Rawalpindi Vs. Saeed Ahmed Khan and others (PLD 1974 SC 151), Utility Stores Corporation of Pakistan Limited Vs. Punjab Labor Appellate Tribunal and others (1987 SC 447),S.H.M. Rizvi and 5 others Vs. Maqsood Ahmed and 6 others (PLD 1981 SC 612), Muhammad Gulshan Khan Vs. Secre tary, Establishment Division, Islamabad and others (2003 PLC (CS)201 ), Muhammad Saleem and two others Vs. Agricultural Development Bank of Pakistan, Islamabad and other (2003 SCMR 251), PIA Corporation Vs. Inayat Rasool (2003 PLC (CS) 333), Adnan A. Khawaja v . the State( PLD 2012 SC 866 ). 5. Syed Ali Ahmed Tariq, learned Counsel for the Respondent No.2 narrated relevant facts pertaining to the present controversy in the case (i.e. claim of salary of the Petitioner for the period with effect from 13.01.1993 to 06.5.2004). He has contended that this Court may decide the present matter in the light of various Orders passed by the Hon'ble Supreme Court in respect of the same cause agitated by the Petitioner. He next contended that Hon'ble Supreme Court in its Judgment dated 06.05.2004 reported as Pakistan Automobile Corporation Ltd V/s Mansoor-ul-Haq Solangi& 2 others (2004 SCMR 1308) reinstated the Petitioner in service but disallowed back benefits in Civil Appeal No. 34/2001 filed by the Respondent No. 2 against the Judgment of Federal Service Tribunal in Appeal No. 773(K)/98, dated 06.10.2000. He next contended that the decisions of this Court, as well as, Hon'ble Supreme Court, it could be deduced that the matter of back benefits in shape of salary, self-endowed promotions, leave encashment, medical, etc., have been dealt with once and for all. However, the fact that the Petitioner himself is an advocate has vigorously impleaded the Respondent No.2 (PACO) for past 2 decades and have filed scores of cases, of which several are still pending, wherein he has prayed same relief of back benefits and has dragged Respondent No.2 (PACO) into litigation to gain benefits he is not entitled to as specifically disallowed by the Hon'ble Apex Court not once but twice vide abovementioned Judgments/Orders for the period from 13.01.1993 till 06.05.2004, when the Hon'ble Supreme Court allowed his reinstatement in service without allowing back benefits; that it has become clear that this petition is frivolous, unwarranted, wastage of time, hence is liable to be dismissed with special costs as all the Petitions and review one after the other are vexatious and amounted to contempt of this Court. The Respondent No.2 (PACO) has incurred huge costs in defending these cases and the Petitioner should be stopped to agitate/file Constitution Petitions for the same matter, which is now a past and closed transaction. He further added that in compliance of the Order of this Court dated 13.11.2017 regarding the calculation of the Petitioner's salary for the above mentioned period, he needs to first establish the exact period or periods for which Petitioner is actually entitled to
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any salary in the light of the Judgment of the Hon'ble Supreme Court dated 06.05.2004 (reported as 2004 SCMR 1305) wherein back benefits were disallowed; that in this regard reference is made to an Order passed by this Court in C.P. No. D-688/2005 dated 15.11.2006, wherein Petitioner has claimed same relief of back benefits; that it is very much clear from the above Order that the Petitioner was not allowed to get back benefits for the intervening period i.e. from 13.01.1993 to 05.05.2004; hence the salary claimed by the Petitioner as per his statement dated 02.12.2017 is not lawful; that the service of the Respondent-Company is not pensionable, however, is governed by Pakistan Automobile Corporation Ltd Employee Gratuity Fund Rules. Learned counsel for the Respondent No. 2 highlighted the issue regarding the salary/benefits paid to the Petitioner through aforesaid statement, which are as under:- 1. Period 01.07.1986 to 12.01.1993 That Petitioner was an employee of the respondent No.2 (PACO) from 01.07.1986 till 12.01.1993, which is the date of termination of his service by the respondent No. 02,where after he became an employee of Naya Daur Motors Ltd (NDML), which was privatized on 13.1.1993 under the Privatization Policy of the Government of Pakistan. During his employment with Respondent No.2 (PACO) the petitioner received all salaries, allowances, medical and other permissible benefits/facilities allowed to him for this period, as the same were payable on monthly basis, excluding payment of Gratuity & Leave encashment as the same are paid on retirement. 2. Period 10.01.2005 to 21.12.2005 (period after reinstatement ) Petitioner after reinstatement by the order dated 06.5.2004 passed by the Hon'ble Apex Court; admittedly the petitioner joined the respondent No.2 (PACO) on 10.01.2005. He could not join earlier as he was working as professional Advocate and was directed by the respondent No.2 (PACO) to submit certificate from Sindh Bar Council in respect of suspension of his legal practice license before joining the PACO as per the Rules of the "Sindh Legal Practitioners & Bar Council Rules" which the Petitioner complied and submitted letter of suspension of license of legal practice dated 08.10.2005. The petitioner upon attaining the age of superannuation retired on 21.12.2005 and Total period he worked with the respondent No.2 (PACO) after reinstatement has been calculated as 11 months and 12 days; that the order dated 06.5.2004 passed by the Hon'ble Supreme Court in Civil Appeal No. 34/2001 was complied with and implemented in full letter and spirit. The petitioner was serving as Senior Manager at the time of termination of his service by PACO and was allowed to join accordingly; but his pay was fixed in Grade E.V/ V (i.e. 13651-778-29211) and his basic salary was calculated Rs. 26,877/- per month as per Govt. notification dated 09.5.2002; that the Petitioner was initially paid Rs. 17,000 per month from 10.01.2005 and an amount of Rs. 333,519/- was paid to him towards salary for the period 10.1.2005 to 30.11.2005 and an amount of Rs. 33,181/- was paid to him for the period 01.12.2005 to 21.12.2005; that the petitioner in his affidavit in rejoinder filed against the statement filed by the respondent No.2 on 3.11.2017 in para 11 has stated "I say that the intervening period when I was out of job is w.e.f. 13.01.1993 to 04.10.2000" is truly false and incorrect as he has concealed the fact that from 13.01.1993 till 26.09.1995 the petitioner was an employee of Naya Daur Motors Ltd, a private company, purchased by Tawakkal Group of Companies from Respondent No.2 (PACO) vide Sale Agreement dated 12.01.1993; that The Private owner (Tawwakal Group of Companies) purchased Naya Daur Motors Ltd. with all its assets and liabilities, including the staff/employees and clause 5 of the Sale Agreement stipulates that the buyer hereby undertakes to indemnify the seller against only claim or liability in respect of any employee whether presently in service or terminated before the date of this agreement. The buyer had further undertaken to ensure that Company (buyer) shall apply all legal dues, such as Provident Fund and Gratuity due to its employees on the existing basis and rates when they eventually retire or leave service. The Petitioner even after privatization remained in the service of private owners and had availed/accepted all the benefits including promotion etc. for 2 years, 8 months and 13 days. He has further contended that the new private owner wanted to reorganize Naya Daurs Motors Limited (NDML) which was challenged by 123 employees, including the Petitioner before the Hon'ble Supreme Court through Constitutional Petition No. 138 of 1994 besides
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Petitioner filed Constitutional Petition No.D-2326/94 and D-759/95 were subsequently dismissed by the Hon'ble Supreme Court through a Judgment, it has been held that the Government cannot be compelled to run any trade business and industry, which it does not want to carry on; that as per Clause 5 of the Agreement, Petitioner has no claimed against Respondent No.2 (PACO) in respect of his terminal dues as it were already paid to the Petitioner by the private employer/owner Tawwakal Group of Companies; that the Petitioner was an employee of a Private Company, Respondent No.2 (PACO) is unable to get the details of such payments made to the Petitioner at the time of his disassociation with NDML after the termination of his services and he should be directed to disclose such information pertaining to dues paid to him by NDML; that the Petitioner was in possession of Corporation's (PACO) arranged accommodation for officers through PIDC and hence Rs. 721,592/- being outstanding occupancy charges, were adjusted out of the Petitioner's retirement dues i.e. gratuity etc.; that the Hon'ble Supreme Court vide their Order on 14.05.2003 in Civil Petition for Leave to Appeal No. 944-K/2002 allowed the Petitioner to retain the possession of the company accommodation (i.e Flat) considering him as an officer of the Corporation and not as a private tenant and wherein the Petitioner himself stated that sufficient amount in shape of G.P Fund etc. is outstanding against the Respondent No.2, which can be adjusted towards the above mentioned dues outstanding against him; that the Hon'ble Supreme Court vide their Order dated 06.2.2004 in Civil Review Petition No. 10-K/2003 on review of its Judgment dated 14.5.2003 passed in C.P. No. 944-K/2002, in para 3 further clarified while advancing detailed reasons for allowing the petitioner to retain the flat in question on payment of occupancy charges; that the Hon'ble Supreme Court vide their Order dated 24.11.2008 passed in C.P. No. D-688/2005 filed by the Petitioner against the Respondent No. 2(PACO) for the same relief pertaining to back benefits; that the actual period for which the Petitioner is entitled for Gratuity from the respondent No.2 (PACO) is from 01.7.1986 to 21.12.2005; but out of bonafide gratuity of the petitioner calculated and paid from year 1970 till 2005; that in addition to gratuity leave encashment for 191 days & difference amount of…
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