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Petitioner: MUHAMMAD ARIF etc VS Respondent: FEDERATION OF PAKISTAN etc
Court Name: Islamabad High Court Judge(s): Iqbal Hameed-ur-Rahman Title: MUHAMMAD ARIF etc vs FEDERATION OF PAKISTAN etc Case No.: W.P. No, 148 of 2011 Date of Judgment:2011-12-21 Reported As: 2013 C.L.R. 366, PLJ 2013 Islamabad 171 Result: Petitions accepted
JUDGMENT
JUDGMENT By means of this single judgment, the instant writ petition as well as three other connected writ petitions i,e, W.P No, 522 of 2011 titled Fida Hussain etc. Vs. Federation of Pakistan etc., W.P. No 2372 of 2011 titled Muhammad Anwar Shahid etc. Vs. Federation of Pakistan etc. and W.P. No, 984 of 2011 titled Fazli Malik etc. Vs. Chairman Pakistan Telecommunication Limited etc., are being decided as all the four petitions carry common questions of law and facts. 2. The epigrammatic salient features of instant matter are that the petitioners were the employees of Pakistan T&T Department, Government of Pakistan and their rights including the pensionary benefits are protected by the Pakistan Telecommunication Act, 1991 and Pakistan Telecommunication (Re-organization) Act, 1996, therefore, the terms and conditions of pensionary benefits of the petitioners cannot be altered or modified. The Pakistan Telecommunication Act, 1991 and the Pakistan Telecommunication (Re-organization), Ordinance, 1996 were repealed by virtue of Section-59 of the Pakistan Telecommunication (Reorganization Act), 1996. The terms and conditions of the transferred employees pertaining to their pensionary benefits have been guaranteed by the Federal Government under Section 36 of the Pakistan Telecommunication (Re- organization) Act, 1996. It is further alleged that 'Pakistan Telecommunication Employees Trust was established, which can sue and to be sued by its name. In compliance with the provisions of Section-44 of the Pakistan Telecommunication (Re-organization) Act, 1996, Respondent No, 2 was established. It is averred that the petitioners were retired from the office of Pakistan Telecommunication Limited Company' and their pensions were fixed by the Director Pension, PTCL Accounts as per Government Rules and thereafter pension had been increased in accordance with increase made by the Government from time to time. On 11.8.2010, Respondent No, 3 issued a letter
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in which a direction has been issued to all Post Masters throughout Pakistan for not paying increases in pension and medical allowance to pensioners until the same is approved by Respondent No, 2. Thus in the original writ petition the petitioners have challenged the said Notification on the ground that the same was illegal, void, unlawful and issued without lawful authority being violative of Pakistan Telecommunication (Re-organization) Act, 1996. It was further prayed that the respondents be directed to pay and reimburse the increase pensionary benefits to the petitioners as envisaged in government notification dated 5th July 2010 w.e.f 1st July, 2010. Thereafter, the petitioners filed CM No, 282 of 2011 for grant of permission to amend the writ petition by contending that after issuance of notice Respondent No, 2 had issued Notification No, Pen/PTET/LHR/1110 dated 27.1.2011 with malafide intention and sought certain amendments in the writ petition. The said application was allowed on 04.2.2011 and consequently the petitioners have submitted amended writ petition; whereby they have also challenged the validity/propriety of Notification dated 27.1.2011 and Letter No, PTET/P-R/2010-11 dated 20.1.2011 and draft rules as well with the prayer that the same may be declared as illegal, void and without any lawful authority. 3. In Writ Petition No, 984/2011, the petitioners have also challenged the Notification dated 27.1.2011. In Writ Petition No, 2372/2011, the petitioners have prayed that pension be granted as per Government Notifications. The petitioners of Writ Petition No, 522/2011 request for grant of pension and medical allowance according to Government Notifications and further challenged the Notification dated 27.1.2011. 4. Respondents have vehemently opposed all these petitions. 5. Mr. Khalil-ur-Rehman Abbasi, Advocate learned counsel for the petitioners vociferously contended that according to Rule 8 (e) of Rules of Pakistan Telecommunication Corporation (Employees Pension Fund), the increase in pension of the existing pensioners is to be granted as allowed by the Government from time to time and according to Rule 15 ibid all the amendments etc. promulgated by the Federal Government for the improvement of pension benefits to its employees, these rules stood modified. He maintained that by virtue of notification dated 27.1.2011, pension was increased into two categories i,e, 20% for pensioners who had retired before 01.1.1996 and 8% for pensioners who had retired on or after 01.1.1996. Learned counsel for the petitioners referred the Pakistan Telecommunication (Re-organization) Ordinance, 1995 and read definition clause 2(t) wherein definition of employees has been elucidated which depicts that "Telecommunication employees" means the employees of the Corporation who are transferred to the employm ent of the Company under this Ordinance, other than those to whom sub-section (3) of Section 36 applies, and all persons who, on the effective date for the Company, were employees of the Corporation, the former Telegraph and. Telephone Department of the Federal Government and are receiving, or are entitled to receive, pensionary benefits from the Corporation." 6. Learned counsel then read out Section 35 of said Ordinance, which provides that "the Federal Government may, by orders: direct that all or any property, rights and liabilities to which the Corporation was entitled or subject to immediately before such orders, and identified therein, shall, on such terms and conditions as the Federal Government may determine." It is next contended that in compliance with this provision, S.R.O. 1(I)/96 dated 01.01.1996 was issued by the Government and suppression of the same another S.R.O No, 115(1)/96 dated 07.2.1996 was issued. The learned counsel relied upon Section 7 of the same, according to which "with effect from the 1st of January, 1996, the liability of the Corporation 'in respect of payment of the pension of the Telecommunication employees shall be transferred to the Pakistan Telecommunication employees Trust (Trust) and the Company shall be liable for, and has assumed the responsibility to contribute to, the Trust, the amount determined in accordance with Section 45 of the said Ordinance." Learned counsel invited the attention towards Sections 44 & 45 of the
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Pakistan Telecommunication (Re-organization) Ordinance, 1995; whereby the Federal Government was to establish' a trust. Section 45 ibid reflects that "the Federal Government shall, by notification in the official Gazette, order that from the effective date, all assets of the Pakistan Telecommunication Corporation Employees Pension Fund as created by a Trust Deed dated, the 2nd April, 1994, hereinafter referred to as the "Pension Fund", and such liabilities are specified in the notification, shall vest in and shall become the assets and liabilities of the Trust." He expressed the view that in pursuant to Section 44 ibid Notification No, 5(3)/93- PTC dated 3.1.1996 was issued by the Government of Pakistan; whereby trust was created and trustees were nominated. Learned counsel pointed out that the department was bound to pay the pension according to increases made by the government and the same has been paid till 30th June, 2010, but thereafter the respondents after taking a U-turn did not pay the pension according to increase made by the Government. Learned counsel then particularly referred Letter No, F. 4(D-Reg-6/2009 dated 13.7.2009 issued by the Government of Pakistan, Finance Division (Regulations Wing), according to which pension was enhanced and in pursuant thereof Pakistan Telecommunication Employees Trust vide Letter No, Pen/PTET/LHR/Misc/5085 dated 21.7.2009 increased the pension as enhanced by the Government. He also referred certain other letters to demonstrate that previously the pension had been enhanced according to increase made by the Government. Learned counsel invited attention of the Court towards Office Memorandum dated 27.8.2011 issued by the National Assembly Secretariat and according to clause-iv "Committee recommended that the retired telecom employees be given pension increase, as per rules which remained in vogue during the last 14 years and no amendment in pension rules be made till the receipt of the verdict of the Court." He went on to argue that draft rules were prepared and Notification was issued on 27.1.2011, which is against the law and procedure. The rules were not framed according to policy and Government Notification. According to Section 52 of the Pakistan Telecommunication (Re organization) Ordinance, 1995, Trust Act, 1882 was applicable to the Trust. He also referred Section 59 of the Ordinance ibid, according to which the Telecommunications Ordinance, 1995 (CIII of 1995) and Ministry of Communications, Government of Pakistan, Notification Nos, 5(4)/95-PTC, dated 7th August, 1995, establishing the Pakistan Telecommunication/Authority and the Frequency Allocation Board were repealed and sub-section (2) of the said Section also provides that the Pakistan Telecommunication Corporation Act, 1991 (XVIII of 1991) shall stand repealed as of the effective date for the Company. Learned counsel then referred Pakistan Telecommunication Act, 1996 and stressed upon sub-section (2) of Section 52 which provides as under: "52. Application of Trust Act, 1882 (1) ................. (2) For the purposes of the Trust Act, 1882, the "author of the trust" shall be the Federal Government and Company, the "trustees" shall be the trustees appointed under Section 45, "beneficiaries" shall be the Telecommunication employees, the "trust property" or "trust money" shall be the Pension fund, "beneficial interest" shall be the right of the Telecommunication employees specified in the rules made under this Chapter and the "instrument of trust" shall be this Act and such rules." The learned counsel also emphasized upon Section 3 of Trust Act, 1882, which is reproduced as under:- "3. Interpretation Clause "Trust".--A "trust" is an obligation annexed to the ownership of property, and rising out of a confidence reposed in and accepted by the owner, or declared and accepted by him for the benefit of another or of another and the owner:- the person who reposes or declares the confidence is called the "author of the trust": the person who accepts the confidence is called the "trustee": the person whose benefit the confidence . is accepted is called the "beneficiary": the subject-matter of the trust is called "trust-property" or
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"trust money"; the "beneficial interest" or "interest" of the beneficiary is his right against the trustee as owner of the trust-property: and the instrument, if any, by which the trust is declared is called the "instrument of the trust"." 7. According to learned counsel the same has been defined in Section 45 of Ordinance, 1995 and S.R.O 116(1)/1996 dated 7.2.1996 was issued and according to its para 4 "all books, documents, instruments and records pertaining to the assets, properties, rights and liabilities vested in the Trust and the employees transferred to the Trust pursuant to this. Order, with effect from the 1st January, 1996, are the property of, and stand transferred to, the Trust." 8. The learned counsel invited the attention towards Trust Deed, which provided that "These Presents" shall mean this Trust Deed and the Rules, schedule and appendix annexed hereto as modified from time to time." Learned counsel also relied upon clause 15 of Rules of Pakistan Telecommunication Corporation (Employees Pension Fund), which reads as under:- "15. Applicability of changes, modifications or amendments notified by the Federal Government for its employees. These regulations will stand modified/amended in respect of all such changes, modifications or amendments made by the Federal government for the improvement of pension benefits to its own employees through circulars or notifications or administrative orders issued from time to time." He further highlighted that Employees Pension Fund was formulated in compliance with Section 45 of Pakistan Telecommunication (Re-organization) Ordinance, 1995 and Court according to clause 17 of Trust Deed, the trustee is bound to comply with and carry out all such directions as may be given to them by the employer from time to time. 9. Learned counsel submits that the impugned notification is against the scheme of Articles 23 and 24 of the Constitution. Reliance in this context is placed on LA Sharwani and others Vs. Government of Pakistan through Secretary Finance Division, Islamabad (1991 SCMR 1041). He laid much emphasis that it is a sheer discrimination inasmuch the pensioners who had been retired before 01.01.199 has been granted pension increase @ 20% and who retired after 01.01.1996 @ 8%. 10.Learned counsel for the petitioners further explains that in respect of increase in pension, the respondents had been adopting the rules of Government w,e,f, 1996 to 2009, therefore, they are barred to change the criteria. Reliance is placed on Nazir Ahmad Vs. Pakistan and 11 others (PLD 1970 Supreme Court 453), Government of West Pakistan and another Vs. Dr. AA Aziz, Medical Superintendent (PLD 1966 Supreme Court 188), Muhammad Zafar Khan Vs. Secretary, Establishment Division, Islamabad and 155 others (1995 SCMR 1840) Messrs RADAKA CORPORATION and others Vs. Collector of Customs and another (1989 SCMR 353), and Pakistan Telecommunication Company Ltd. Vs. Muhammad Zahid and 29 others (2010 SCMR 253). 11. Learned counsel for the petitioners further asserted that petitioners' rights have been protected under Section 36 as well as under sub-section (2) of Section 59 of the Act, 1996. He while referring. Section 46 of Pakistan Telecommunication (Re-Organization) Ordinance, 1995; whereby the functions and powers of the trust have been provided emphasized that it is the liability of respondents. To elaborate entitlement of the petitioners, he has relied upon PLD 1976. Supreme Court 6. He was of the view that S.R.O 116 dated 07.2.1996 has not been redundant and same is still continued as is apparent through the resolutions. He explains that even if alternate remedy is available, even then the writ petition is maintainable and in this regard strength was sought from PLD 1961 Supreme Court 119. PLD 1962 Karachi 151, PLD 1978 Karachi 132, 2004 SCMR 400, KLR 2009 CC 302, 2007 PLC (CS) 1244, KLR 2009 CC 325, 2009 AC 758 and (2005 SCMR 678) in order to prove the discrimination, learned counsel for the petitioners has made reliance upon 2010 PLC (C.S) 966. On the point of mala fide he has relied upon Chief Justice of Pakistan Iftikhar Muhammad Chaudhry versus President of Pakistan through Secretary and others, (PLD 2010 Supreme Court 61). Learned
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counsel also alleged that in appropriate cases, the lapses or wrongs and non quoting in rules etc. can be rectified by the Courts and in this respect reliance was made upon Zaman Cement Company (Put.) Ltd., versus Central Board of Revenue and others (2002 SCMR 312) and Dr. Mobashir Hassan and others versus Federation of Pakistan and others (PLD 2010 Supreme Court 265). 12.It is next contended with full vehemence that the rules, could not have been amended without petitioners/beneficiaries, intervention and in this regard he has relied upon Section 36(5) of the Pakistan Telecommunication (Re-Organization) Act, 1996, which reads as under:- "(5) Under the order vesting property of the Corporation in the Company , the Federal Government shall require the Company to assume the responsibility of pensionary benefits of the telecommunication employees and the Corporation shall not alter such pensionary benefits without the consent of the individuals concerned and the award of appropriate compensation." He therefore went on to argue that the very requirement of Act has been violated. Reliance was placed on upon 2010 PLC (C.S) 718. 13.According to learned counsel for the petitioners the rules could not be framed without approval of Federal Government and in support of his claim he has referred Section 44 (9) of the Pakistan Telecommunication (Re-organization) Ordinance, 1995 which reads as under:- "The Board of trustees may with the approval of the Federal Government and by notification in the official Gazette, make rules for the management and conduct of business of the Trust." That previously rules were made which are called the Pakistan Telecommunication Employees Trust (Investment) Rules, 2003 under. S.R.O. 77(KE)/2003 which still hold the field and the same could not be superseded as provided in clause 27 of Trust Deed. Learned counsel further asserted that winding up of the trust has been provided in clause 53 of the Act, 1996 and there is no other procedure for said purpose; that Respondent No, 1 is guarantor of the petitioners. 14.In view of submissions mentioned supra and while relying upon an unreported case i,e, Masood Ahmed Bhatti Vs. Federation of Pakistan etc. (Civil Appeals No, 239 to 241 of 2011) decided on 1.8.2011 by the Hon'ble Supreme Court of Pakistan, it is prayed that the petition may be accepted. 15. Syed Kausar Ali Shah, Advocate, learned counsel for the petitioners in W.P No, 984/2011 (Fazli Malik etc. Vs. Chairman PTCL etc.) while relying upon the case of Masood Ahmed Bhatti as mentioned above adopted the arguments of learned counsel for the petitioners Mr. Khalil-ur- Rehman Abbasi, Advocate. 16. Ch. Mushtaq Hussain Advocate in Writ Petition No, 2372/2011 (Muhammad Anwar Shahid etc. Vs. Federation of Pakistan etc.) pleaded that his petitioners were employees of T&T, therefore, they were departmental employees and they were transferred to Corporation. The definition of employees has been explained in Section 2-E of the Pakistan Telecommunication Corporation Act, 1991 and at that time there was no option but there was compulsion to go into Corporation. Further alleged that no extraordinary benefit was given to the petitioners and the guarantee was given by the Government and counter guarantee was also given by the company. He submits that the pension of the petitioners is to be enhanced according to increase made by the Government. Learned counsel has also relied upon the case of Masood Ahmed Bhatti. 17. Mr. Imran Haider Shah Advocate in W.P. No, 522/2011 (Fida Hussain etc. Federation of Pakistan etc.) while referring Section 11 of Trust Act adopted the arguments advanced by other learned counsel. 18. While repelling the arguments advanced from petitioners' side, S. Naeem Bokhari, Advocate learned counsel representing respondents, on his turn firstly attacked on filing of amended writ petition and asserted that amended petition should not had been filed, rather the petitioners should resorted to file fresh writ petition in view of changed circumstances. Learned counsel read out ground 2 of original writ petition (W.P. No, 148/2011); wherein it has been mentioned that the respondents with mala fide intention has failed to increase the pensionary benefits of the
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petitioners which is illegal, void and is liable to be set aside. Learned counsel also read relevant portion of ground-4 of original' writ petition, wherein it has been alleged that "the Respondent No, 3 should not have issued the impugned order dated 11.8.2010. The said order stands in clear violation to the provision of Section-45 of Pakistan Telecommunication Act, 1996 read with provision of Trust Deed contained in Para-2." He also stressed upon the last lines of ground-7, wherein it has been narrated that "the impugned order issued by Respondent No, 3 is violative of Constitution as well as statutory provision of law and is mala fide on the face of it thus liable to struck off. Mr. Bokhari then referred Notification dated 11.8.2010 to contend that in the original writ petition the same was challenged; that the amendment in the petition was made and the said order was superseded by Notification dated 27.1.2011; whereby increase was given and as soon as the notification dated 27.01.201,1 was issued the original writ petition had become infructuous, because a new cause of action had arisen in favour of the petitioners. According to learned counsel since the provisions of C.P.O are applicable to the proceedings of writ petitions and Order VI, Rule 17 of C.P.C. controls the amendments about which plethora of case law is available. Under the law amendment should not be allowed if there is a new cause of action and the relief is sought to be substituted through amendment. Reliance in this regard is placed on. Muhammad Hussain Vs. Sani Hussain and 2 others (2000 SCMR 391) Mst. Imam Hussain Vs. Sher Ali Shah and others (1994 SCMR 2293) and Atlantic Steamer's Supply Company Vs. M.V Trustee and others (PLD 1993 Supreme Court 88). It is further added that instead of filing repeated C.Ms and changing the entire complexion of writ petition which was initially against a specific order, the petitioners should have filed fresh petition. Learned counsel further states that all the petitioners have raised question of facts as to when they were employed, in what capacity and when they did retried and what was their entitlement at the time of their retirement and all these questions require recording of evidence, which is job of Court of preliminary jurisdiction and the same is not permissible in Constitutional jurisdiction. He also vigorously contended that the petitioners had adequate remedy of filing civil suit as provided in Section 34 of Trust Act. Learned counsel relied upon Section 56 of Trust Act, which provides that "the beneficiary is entitled to have the intention of the author of the trust specifically executed to the extent of the beneficiary's interest." He further referred Section 61 ibid, which contemplates that "the beneficiary has a right that his trustee shall be compelled to perform any particular act of his duty as such and restrained from committing any contemplated or probable breach of trust." Therefore, learned counsel stresses that in view of these provisions of law, resort to Article-199 of the Constitution is uncalled for. In order to strengthen his contentions, he has placed reliance on an unreported case of Bridg. (R) Muhammad Arbi Khan Vs. Federation of Pakistan etc. dated 30.1.2002 passed in Writ Petition No, 1165 of 1999 by the Lahore High Court, Lahore. It is next contended that the petitioners -have heavily relied upon the trust deed as well as rules of Pakistan Telecommunication Corporation employees Pension Fund, but the trust has been superseded by the instrument of Trust, which is the Act of 1996. Learned counsel while referring Section 52(2) of Pakistan Telecommunication (Re-organization) Act, 1996 emphasized that according to said section "instrument of trust" shall be this Act and such rules; that the alteration can be made through legislation and not by the trustees. Further asserted that this is a trust and rules attached to the trust is not statutory nature but those are nature of contract of trustee and beneficiary in case of violation could not invoke the jurisdiction provided under Article 199 of the Constitution. None of the petitioners are employees but are retirees; that various matters went before the Hon'ble Supreme Court of Pakistan in which one of the question raised was whether rules of P.T.C.L were statutory or otherwise and now law is completely set that employees can invoke the jurisdiction of this Court if rules are statutory. He further asserted that according to Section 36 of the Act, 1996, only Federal Government is restricted to the guarantee. He explains that sub-section (5) of Section 36 ibid is a key section which reads as under:-
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"(5) Under the order vesting property of the Corporation in the Company. the Federal Government shall requirg_ the Company to assume the responsibility of pensionary benefits of the telecommunication employees and the Company shall not alter such pensionary benefits without the consent of the individuals concerned and the award of appropriate compensation." Whether the Board of Trustees is bound to match the Government increase of its retirees, he explains that there is no provision in the statutes to match the increases. While referring sub- section (3) of Section 36 ibid, he states that the same is limited to those who exercised the option available to them under Section 36(3) of the Act, 1996 and in this regard he has heavily relied upon Ejaz Ali Bughti Vs. P.T.C.L and others (2011 SCMR 333). Reliance has also been placed on Pakistan Telecommunication Co. Ltd through Chairman -Vs. Iqbal Nasir and others (PLD 2011 Supreme Court 132) and…
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