Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Shariq-ul-Haq and Others VS Respondent: Pakistan International Airlines Corporation Limited & another
Court Name: Sindh High Court Judge(s): Muhammad Ali Mazhar Title:Shariq-ul-Haq and Others vs Pakistan International Airlines Corporation
Limited & another Case No.: Suit Nos.1498, 1499, 1500, 1501, 1502 and 1508 of 2017 Date of Judgment:2018-02-08 Reported As: 2018 PLC (C.S.) 975, 2018 SHC 455 Result: Applications disposed of Judgment ORDER Muhammad Ali Mazhar-J. The aforementioned lawsuits have been set in motion to aim at declaration, perma nent injunction and damages. Together with the main suit, the plaintif fs have also filed interlocutory applications under Order 39 Rule 1 & 2 C.P.C for suspending the operation of impugned letter dated 25.5.2017 issued by defendant No.2 for Transition Training ATR-P1 Course scheduled as of 12.6.2017. Subsequ ently, except the plaintif f in Suit No.1508/2017, other five plaintif fs also moved applications under Section 94 & 151 C.P.C for restraining the defendants from grounding them from flying duties or deducting salaries and other fringe benefits. 2. The epigrammatic facts of the case are that the plaintif fs are serving senior B-777 First officers. They claimed promotion on A-320 Aircraft under the Amended Carrier Plan by dint of Memorandum of understanding but the management offered them Transition Course on ATR. They took up the matter with PALPA and PIAC for redress of their grouse and grumble but their association PALPA as well as PIAC management both failed to respond. Due to non-availability of any other expedient and efficacious remedy for alleviation, the plaintif fs have approached this court for implementation of MOU dated 18.3.2016. In essence the plaintif fs move in on to protect and safeguard their rights and interest conferred and bequeathed in the aforesaid MOU. As an interim measure this court directed the defendants not to force the plaintif fs to join the impugned Transition Training Course and afterwards in addition to earlier interim orders, this court further directed the defendants not to draw any adverse inference against the plaintif fs in respect of the flying licenses. 3. The learned counsel for the plaintif fs argued that out of six plaintif fs, the PIAC management called upon only three plaintif fs to attend impugned transiti on course, two of them were kept stand by and one of them was not even in the list of the course. When the plaintif fs raised the voice for their vested right of promotion in terms of MOU, the management detached them from flying duties and treated them at par with suspended pilots with further
---
## Page 2
directions not to leave the station (Karachi, Islamabad or Lahore). The plaintiffs are presently entitled to fly B-777 as First Officers and they are also entitled to be promoted on A-320 as Captain. The learned counsel pointed out that vide order dated 14.7.2017, this court has already directed the defendants not to draw adverse inference against the plaintiff in respect of flying license. It was averred that the prime issue involved is the implementation of the MOU and its binding effect. Once a principal decision was taken to promote the Plaintiffs on A-320 Aircrafts, the Defendants have no right to unilaterally place them for a training course on ATR aircraft. It was further contended that the conditions mentioned in the MOU have become the part of the Working Agreement. The management has admitted execution of MOU and they have acted upon the same independently of Admin Order No.7 of 2016. The MOU cannot be unilaterally annulled simply for the reasons that Clause 1.9 of the Working Agreement expressly protects MOUs executed between PIAC and PALPA for the benefit of Pilots. The Execution of MOU shows that in principal the decision had been taken to send First officers of B-777 as Captains on A 320. The Clause 2 of the MOU has to be read as a whole. The first and second limb of the clause are connected with each other, the implementation of the first limb paves way for implementation of 2d limb. It is a concluded contract executed by both PALPA and PIAC in terms of Clause 5.10 read with clause 1.5 & 1.3 of the Working Agreement in vogue. The learned counsel further argued in fact the management went on to implement the MOU, the Advertisement dated 19.05.2016 is an ample prove through which interested pilots were offered contracts as Captains on ATR Aircrafts. This was done even prior to the issuance of Admin Order No.7 of 2016 dated 31.5.2016. The independence of MOU is further established that the Admin Order No.07/2016 neither provides for hiring of contract pilots on ATR nor provid es for promotion of B-777 First Officers as Captains on A-320 aircraft. The learned counsel added that presently there is a serious shortage of flying crew on A-320 and B-777 Aircrafts especially Captains on these two aircrafts. 4. The learned counsel for the plaintif f concluded that the plaintif fs have a strong prima facie case. The defendants are attempting to mislead this Court by claiming that methodology is yet to be framed where in reality as per their letter dated 20.4.2017 they have unilaterally attempted to wriggle out of their obligations under MOU. The balance of convenience also lies in favour of the plaintif fs and no loss or injury will be caused to the defendants if they comply with the terms of Clause 2 of the MOU but on the other hand if the injunct ion is refused, serious prejudice will be caused to the plaintif fs and their seniority . The plaintif fs have already suffered a lot and now their flying licenses granted by CAA are at stake, further non-flying or any more negative inference on their license can seriously prejudice their livelihood and their future. The plaintif fs have always served PIAC with pride and will continue to do so but in accordance with law, applicable rules, working agreement and their entitlements under superior clauses as agreed by PIAC and PALPA in working agreement. He referred to following judicial precedents:- 1. 1994 MLD 476 (Province of Punjab through the Secretary to Government of the Punjab, Communication and Works Department and another vs. Malik Muhammad Ilyas and 2 others). Document embodying a contract is to be interpreted according to intention of the parties; construction thereof, must be reasonable, liberal and with a spirit to save rather than destroy it; ordinary sense of the words is to be followed; and the whole of the document is to be looked at in order to gather the intention of the parties. 2. 2016 PLC 335 (Sadiq Amin Rahman vs. Pakistan International Airlines Corporation through Managing Director and 3 others). (a) Specific Relief Act (I of 1877). Sections 42 & 54. Suit for declaration and injunction. Plaintiff was a pilot and was aggrieved of refusal made by the Airline Corporation declining him to send him to transition training B-777 in view of agreement executed between the Corporation and Association of Pilots. Management of Airline Corporation was not supposed to act recklessly or sabotage professional norms and transparency in the affairs of their management. Airline Corporation should follow principle of good governance and maintain transparency and fair-mindedness in its affairs. By misapplication of phrase 'master and servant' management feels that an employee cannot raise voice of his rights even though an oppressive attitude and behavior of management which is an incorrect exposition of law .n
---
## Page 3
3. 1980 SCMR 89 (Bakhtawar etc. vs. Amin etc.). (b) Civil Procedure Code (V of 1908). Order XXXIX, Rule 2 (3). When by contravening an injunction order the party against whom the order is passed has done something for its own advantage to disadvantage of the other party , it is open to the Court under its inherent jurisdiction to bring back the party to a position where it originally stood, as if the order had not been contravened. 5. Quite the reverse, the learned counsel for the defendants argued that in the supporting affidavits of injunction application, the plaintiffs have failed to disclose prima facie case, balance of convenience and irreparable loss therefore they are not entitled for the discretionary relief. The plaintiffs have taken the ground for change of carrier plan in Working Agreement 2011-2013 executed between PALPA & PIAC but no Admin Order was issued by the PIAC with the mutual consent as regard to the change in the agreement relevant to carrier plan. It was further contended that PALPA is a registered association under the Societies Registration Act, XXI of 1980 whose members are pilots employed by PIAC. The PALPA is empowered to negotiate on their behalf to regulate the working conditions of the pilots as contained in the Agreement and all pilots including the plaintiffs are discharging their duties under the said Agreement, hence the terms and conditions enumerated therein are binding upon the plaintiffs. The Association has not been made party in this suit with mala fide intentions so the suit is hit by non-joinder of necessary party. There is no dispute between PALPA and PIAC on the working Agreement or any of its provision nor any dispute to the MOU. 6. While referring to the Minutes of Meeting dated March 31, 2016, the learned counsel added that the minutes only reflect the discussions, suggestions and opinion of the Directors present in the meeting which cannot be treated as Resolution. However, Board of Directors of PIAC approved the increase in salary structure of pilots and other allowances. The Career plan attached with the Agreement shows that the First Officer B-777 is promoted as Captain ATR. In the Admin Order NO. 7 of 2016 dated May 31, 2016, it is clearly mentioned in Clause-1 (w) that "The PALPA, PIAC Working Agreement 2011-2013 stands reviewed to the extent of above agreed Clauses", meaning thereby those clauses which are specifically mentioned in the said Admin Order shall be the terms and conditions of Agreement but there was no change in carrier plan. The Admin Order 07/2016 was issued after MOU in which it is mentioned that all other terms and conditions shall remain as per existing PALPA Working Agreement 2011-2013 until further orders. Whereas in Clause 1.1 of Agreement it is provided that all arrangements and agreements in respect of the terms and conditions shall continue unless otherwise modified, cancelled or amended and in the event of any conflict between the provisions of this agreement and that of the aforesaid arrangements/agreements, provisions of this agreement shall prevail. Since the parties of MOU did not decide the methodology as mentioned in Clause-2 of MOU therefore Clause 1.1 of agreement shall prevail. The Clause-2 of MOU should be read with Clause-3 which states that the negotiations for a complete working Agreement should start from March 28, 2016 and shall be concluded by April 11, 2016 but parties have not completed the negotiations. So far as the Advertisement in daily Jang dated May 19, 2016 is concerned, it was clearly mentioned in it that the contract Pilot will be required to submit a Bank Guarantee of Rs.25,00,000/- refundable after two (2) years of the productive service. In the MOU the ATR Captains were to be hired on contract basis which may extend up to five (5) years, whereas advertisement contained requirement of Bank Guarantee for two (2) years only , therefore the said advertisement was not issued in terms of Clause-2 of MOU. 7. It was further contended by the learned counsel for the defendants that the management offered to all First Officers to join as Captain ATR which has no relevancy with the MOU. The manage ment had made this offer as per Clause 3.26 of Agreement. This offer circulated vide letter dated December 1, 2016 was opted by many Pilots. The plaintif fs were fully aware to this offer but they never raised any objection with regar d to any effect on their seniority . So at this stage their objection is hit by the principle of estoppel. 8. He further argued that Clause 12.4 of the Working Agreement provides the mechanism for the redress of Pilots Grievances which the plaintiff failed to avail. Without resorting to the Departmental remedy by way of appeal or review/representation an aggrieved person could not approach this court directly. The learned counsel for the defendants further argued that in terms of Clause 1.8 of Agreement, the dispute with regard to the Agreement and or the interpretation of any terms and conditions shall be settled by an arbitration board. He further contended that
---
## Page 4
the plaintiffs are governed under the Working Agreement 2011-2013 so in the event of any breach, the plaintiffs may sue for damages but they cannot file suit for declaration under Section 42 of Specific Relief Act. It was further averred that under Section 56 (f) of Specific Relief Act, injunction cannot be granted to prevent the breach of contract the performance of which would not specifically enforced nor a contract of personal service can be enforced. He further opposed the grant of injunction for the reason that contract of personal service cannot be specifically enforced. The learned counsel for the defendants referred to following judicial precedents in support of his arguments: 1. PLD 2000 Karachi 269 (Century Link Development Corporation (Pvt.) LTD vs. Habib Bank Ltd. and others). (b) Civil Procedure Code (V of 1908). Order XXXIX, Rules 1 & 2. For the purpose of grant of interim injunction, it is imminent that besides prima facie case, exposure to irreparable injury must be shown, additionally a plaintiff is obliged to establish balance of convenience in favour of grant of injunction and for the purpose of interlocutory matters, affidavits alone, have to be considered. 2. 2013 PLC (C.S.) 768 (Ghulam Nabi Shah vs. Pakistan International Airlines Corporation and othe rs). Suit for declaration, damages and permanent injunction. Plaintiff being employee of Pakistan International Airlines (PIA) sought implementation of decree for correction of his date of birth in service record and extension in his service accordingly . Plaintiff on alleged wrong date of birth had joined service, secured promotions and completed his tenure, but remained silent during such a long period, thus, his conduct was hit by principle of estoppel. Plaintiff while reaching age of superannuat ion had obtained such decree in order to get extension in service. Plaintiff at such belated stage was not entitled to claim any discretionary relief. 3. 1974 SCMR 519 (Marghub Siddiqi vs. Hamid Ahmad Khan and others). Principles governing grant of permanent injunction under Specific Relief Act, 1877. Contract for persona l service being contracts not specifically enforceable grant of injunction in service matters, held, opposed to principles governing grant of injunctions. 4. PLD 1961 Supreme Court 531 (Messrs Malik and Haq & another vs. Muhammad Shamsul Islam Chowdhury , and two others). The master is always entitled to say that he is prepared to pay damages for breach of contract of service but will not accept the services of the servant. A contract for personal service as will appear from section 21 (b) of the Specific Relief Act, 1877 cannot be specifically enforced. If specific performance be barred the only relief available is damages. 5. PLD 1997 Supreme Court 835 (Obaidullah and another vs. Habibull ah and others). For a breach of a contract of employment in the absenc e of any Constitutional guarantee or other , statutory guarantee of continuity , compensation in money is an adequate relief in case of non-performance of a contract. 6. PLD 1984 Supreme Court 194 (Anwar Hussain vs. Agricultural Development Bank of Pakistan and others). Principle of master and servant applicable. Employee of such Corporation could not claim to be person possessed of any legal charac ter within meaning of S. 42, Specific Relief Act, 1877 and in case of his wrongful dismissal from or termination of service, principle of master and servant will fully apply and he can only claim damages but not re-instatement to his post. 9. In rebuttal the learned counsel for the plaintif fs articulated that the issue of Arbitration does not arise, the Working Agreement is between PALPA and PIAC and remedy is restricted to a dispute between them however the members of PALPA are the beneficiaries of this working agreement but no right is vested in them to invoke arbitration clause individually. Neither PALPA nor PIAC has chosen to invoke Clause 1.7 and 1.8 of the working agreement. So far as non-availing the alternate remedy is concerned; he argued that the procedure for redress of grievance provided in Clause 12.4 of the Working Agreement does not apply. This grievance mechanism is not a remedy which could have resolved the dispute in hand, i.e. challenging the illegal action of the defendants so the plaintiffs have rightly approached this court and their suit is not barred or hit by any provisions of Specific Relief Act or any other law. So far as plea of estoppel is concerned, the learned counsel argued that when the course was fixed in June 2016, no pilot was out of turn hired either on Contract or on Option as Captain on ATRs but once the Captains on ATR were hired on contract basis, then vested rights created in favour of the plaintiffs
---
## Page 5
in terms of Clause No.2 of MOU. At this moment the plaintiffs are entitled to be promoted directly on A-320 aircraft. No principle of Estoppel is attracted rather the principle of creation and protection of vested right and legitimate expectation has accrued in favour of the plaintiffs. 10. Heard the arguments. The wholeness of wrangle and difference of opinion between the parties is wandering and roaming around the implementation and enforcement of Memorandum of Understanding (MoU) dated 18.3.2016 executed between Director Flight Operations PIAC and PALPA through its President. In Clause 2 of this MoU it was coincided that for ATR Captains qualified human resource would be engaged on contract extendable up to 5 years. The methodology shall be worked out to place first officer of Boeing 777 as captain of A320 subject to completion of training as per seniority . It was further agreed in Clause 3 that negotiation for a complete working agreement should start from 28t March 2016 and shall be concluded by 11t April 2016. As a goodwill gesture management of PIAC also agreed to provide some adhoc relief to the captains and first officers. For the ease of reference the text of MoU is reproduced as under:- "Memorandum of Understanding Dated: 18th March 2016 After thorough discussion, it was decided as follows: 1. The aircrew travelling on A320 will be booked in Economy Class. However , subject to availability they shall have priority over all non-revenue passengers to be upgraded to Business Class. 2. For ATR Captains qualified human resource would be hired on contract basis which may extend up to 5 years. The methodology shall be worked out to place First Officers of Boeing 777 as captain of A320 subject to completion of training as per seniority . 3. Furthermore, negotiation for a comp lete working agreement should start from 28th March 2016 and shall be concluded by 1 1th April 2016. The T OR for the working agreement shall include: i. Fix salary package ii. Rationalization of career plan iii.Rationalization of base strength as per requirement 4. As a good will gesture, management agreed to provide an Adhoc relief as follows: a. Captain i. Boeing 777 PKR 150,000 ii. A320/A310 PKR 130,151 iii.ATR PKR 107, 500 b. First Officer i. Boing 777 PKR 100,113 ii. A320/A310 PKR 66,713 iii. ATR PKR 51,430 Sd/- Sd/- Captain Qasim Hayat) (Captain Amir Hashmi) Director Flight Operations President P ALPA" 11. The chronicle and sequence of events delineate that on 9.5.2016, an advertisement was published in the newspaper for career opportunity with the narratives that PIAC has planned to expand the operational capability and they need experienced Captains on contract basis. Talented and self-motivated persons who can accept the challenge to be a part of PIA as Captain on ATR-42/72 Type Aircraft may apply with a condition precedent that upon accepting hiring contract, the candidate shall submit a Bank Guarantee of PKR 25,00,000/- refundable after 02 years of productive service on pro-rata basis. 12. The learned counsel shoulder to shoulder speak of an Admin Order No.07/2016 dated 31.5.2016 disseminated to put forward revised terms and conditions of service benefits and facilities for the pilots. The management in Paragraph 01 of the Admin Order make known that the terms and conditions of service, benefitsh h
---
## Page 6
and facilities of pilots have been revised w.e.f. 1st April, 2016 as agreed vide MoUs dated 18t March, 2016, 19t April, 2016 & 13t May, 2016 with PALPA and approved by the PIACL BoD in its 1st Meeting held on 09.05.2016. Besides mentioning various other terms and conditions of service benefits and facilities, it is mentioned in clause (t) that Supy travel will be regulated as per MoU dated 18.3.2016 with PALPA and in column (w) it is further stated that the PALPA and PIAC Working Agreement 2011-2013 stands reviewed to the extent of agreed clauses mentioned in this Admin Order No.7/2016. 13. Right away, I would like to behold and survey PALPA and PIAC Working Agreement dated 20.11.2013 which is in vogue. The recital of this working agreement epitomizes and reckons that PALPA has produced evidence that it is duly designated representative of the pilots employed by the corporation and authorized to negotiate on their behalf to conclude an agreement with the Corporation. In Clause 1.2, the PIAC recognized that the Association (PALPA) is the bargaining representative of all pilots who are members of the Association. The Association also recognized in the agreement the obligation of its members to faithfully discharge their duties and responsibilities in accordance with highest standards of professional conduct. Simultaneously the Corporation also recognized its obligations to uphold the sanctity of the working agreement and ensured that no part of agreement is violated. In my understanding, Clause 1.9 of the agreement is profusely expressive and having an important ef fect which is reproduced as under:- "1.9 INCORPORATION OF ANY SUPERIOR CLAUSE(S): Any administrative clause(s) or Memorandum of Understanding (M.o.U) that is superior in benefit to the clause(s) or M.o.U. contained in this Agreement and is part of any other Agreement(s) between the Corporation and any other Association(s)/Union(s), shall automatically be deemed to be incorporated in this Agreement, to the benefit of the members of the Association." 14. In unison, Clause 5.9 of the Working Agreement linked to career plan of pilots is also somewhat reminiscent as under:- "5.9 CARRER PLAN OF PILOTS: 5.9.1 The promotion of Pilots to different equipment will be done according to the following career Plan and minimum specifications. 5.9.1.1 A Pilot will start his/her career as ATR First Officer . 5.9.1.2 First Officer ATR will then be promoted as First Officer on B737. 5.9.1.3 First Officer B-737 will then be promoted as First Officer A-310. 5.9.1.4 First Officer A-310 will then be promoted as First Officer B-777. 5.9.1.5 First Officer B-777 will then be promoted as Captain ATR. 5.9.1.6 An ATR Captain will then be promoted as Captain B-737. 5.9.1.7 Captain B-737 will then be promoted as Captain A-310. 5.9.1.8 Captain A-310 will then be promoted as Captain B-777. Note-1:- All promotions will be strictly as per seniority . Note-2:- B-747 aircraft will remain sidelined until further decision, and its promotion will remain on option/contract. Option for P1 and P2 positions will only be given to Captains and First Office rs who have flown Jet aircraft, in consultation with PALPA. It is also agreed that pilots who opt for B-747 P1/P2 position will remain on this equipment for three (03) productive Hajj seasons or redundancy of the aircraft, whichever is earlier . After that they shall be placed on any other equipment in accordance with their seniority . A flow chart of revised Career Plan is attached as Annex-A. SPECIFICA TIONS: The above career plan will be implemented subject to the following minimum specifications: (a) ATR First Officers: (i) CPL with valid instrument rating. (b) B-737 First Officer:h h h
---
## Page 7
(i) ATR P-2 - 5000 hours (ii) Total experience - 1,000 hours (c) A-310 First Officer: (i) B-737 P-2 - 500 hours (ii) Total experience - 1,500 hours (d) B-777 First Officer: (i) A-310 P-2 - 500 hours (ii) Total experience - 2000 hours (e) ATR Captain (i) ATPL (ii) B-777 P-2 - 500 hours (f) B-737 Captain (i) ATR P-1 - 500 hours (ii) Total experience - 3500 hours (g) A-310 Captain: (i) B-737 P-1 - 500 hours (ii) Total experience - 4,000 hours (h) B-777 Captain: (i) A-310 P-1 - 500 hours (ii) Total experience - 4,500 Hrs. Note-3: B-747 (P-1/P-2) being declared sidelined equipment will not be a…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.