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Petitioner: Pakistan Airline Pilots' Association through Honorary General Secretary and 4 others VS Respondent: Federation Of Pakistan through Secretary for Ministry of Interior, Islamabad and another
Court Name: Sindh High Court Judge(s): Muhammad Junaid Ghaffar Title:Pakistan Airline Pilots' Association through Honorary General Secretary and
4 others vs Federation Of Pakistan through Secretary for Ministry of Interior, Islamabad and another Case No.: Suit No.538 and C.M.As. Nos.4391, 4437 of 2020 Date of Judgment:2020-07-29 Reported As: 2021 PLC (C.S.) 860 Result: Order accordingly Judgment ORDER MUHAMMAD JUNAID GHAFF AR, J.---This is a Suit for Declaration and Injunction filed by the Plaintif fs being aggrieved by Notification dated 28.04.2020 issued by Defendant No.1/ Ministry of Interior and Letter/Notice dated 30.04.2020 issued by Defendant No.2 ("PIA" ). Plaintif f No.1, i.e. Pakistan Airline Pilots' Association (PALPA) is a body claiming to be registered under the, Societies Registration Act, 1860, whereas, Plaintif fs Nos.2 to 5 are individual Pilots, claiming to be members PALPA. Application at Serial No.1 (CMA No.4391/2020 ) has been filed under Order XXXIX, Rules 1 and 2 CPC seeking suspension of the impugned Notification and Letter/Notice and in addition, other ancillary relief(s). Application at Serial No.2 (CMA No. 4437/2020 ) has been filed by PIA under Section 34 of the Arbitration Act, 1940 ("Arbitration Act" ) to stay the proceedings of this Suit and refer the matter for Arbitration. 2. Learned Counsel for the Plaintif fs has contended that admittedly PALPA had entered into a Working Agreement with PIA lastly in 2011-2013, which by virtue of clauses 1.4 and 1.6 still subsists; that the impugned Letter/Notice dated 30.04.2020 has unilaterally de-recognized PALPA and has terminated the said Agreement without notice; that there is no termination clause in the Agre ement as it has been agreed that the Agreement would continue and will remain in force until the terms are revise d or a new Agreement is arrived at; that the impugned Letter/Notice has been issued in retaliation to some earlier proceedings initiated against the Chief Executive of PIA through C.P No D- 8198/2019 by one of the employees of PIA; that PIA has no authority to unilaterally terminate the said Agreement; that Pakistan International Airlines Corporation (Conversion) Act of 2016 ("2016 Act"), duly recognizes that all existing contracts would continue and PIA will abide by the terms of such contracts; that the impugned Notification dated 28.04.2020 issued under Section 3 of the Pakistan Essential Services (Maintenance) Act, 1952
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("1952 Act") has been issued without forming a valid opinion by the Federal Government; hence the said Notification is ultra vires; that under Section 3(1), the 1952 Act would only apply to employment under Federal Government, whereas, the Plaintif fs Nos.2 to 5 are not employees of the Federal Government, but have been appointed by the Board of Directors of PIA; that pursuant to the 2016 Act, any discretion, earlier vesting in the Federal Government in respect of the management of PIA, has been taken away , and now it is only the Board of Directors who can manage PIA; that Section 6 of the 1952 Act, which provides for regulation of wages and conditions of services is yet to be complie d with; hence the impugned Notification, even if it remains in field, cannot be acted upon; that all along PALPA has been recognized as the Collective Bargaining Agent and the true representative of the Pilots working with PIA and such Agreement(s) entered into by PIA has never been denied, rather always acted upon; that all successive managements of PIA have always adhered to such binding Agreement(s); that no breach has been committed by PALPA; hence the Agreement cannot be terminated; that the impugned Letter/Notice dated 30.04.2020 is independent of Notification dated 28.04.2020 issued under the 1952 Act; hence the impugned Letter/Notice is not protected under the said Act; that the Plaintif fs presently as well as in the past have always rendered their services and performed under the 1952 Act as and when such Notifications have been issued; that presently under the current pandemic (COVID-19) situation, the Plaintif fs have been performing their services in extreme difficult circumstances for the benefit of the people of this country; that PALPA and its working is protected under Article 17 of the Constitution of Islamic Republic of Pakistan; hence no adverse action can be taken without due process of law; that though no termination clause is provided under the Agreement; however , a prior notice was to be given mandatorily; that the Working Agreement still subsists and is protected under the 2016 Act and such protection is statutory in nature, whereas, Section 9 of the 1952 Act would not apply as the 2016 Act is later in time; that the Application under Section 34 of the Arbitration Act is not maintainable inasmuch as Clause 1.8 of the Working Agreement does not cater to the cancellation / termination of the Agreement, whereas, PIA has failed to intimate any dispute which could be referred to Arbitration; that such termination does not pertain to a dispute regarding the Agreement; hence this aspect of the matter cannot be referred for Arbitration; that even otherwis e and without prejudice, if this Court comes to a conclusion that the plea raised by the Plaintif fs is Arbitrable pursuant to Clause 1.8 (ibid), then while exercising powers under Section 41 of the Arbitration Act, can always decide the injunction application and suspend the impugned Notification as well as Letter and refer the matter for Arbitration as otherwise it would seriously prejudice the Plaintif fs; that since PIA has failed to identify any breach of the Agreement, the matter cannot be referred to Arbitration. In support of his contention he has relied upon the judgments reported as (Syed Ali Haider and others v. Pakistan International Airline Corporation Ltd.) Suit No. 1798/2016, Muhammad Rabani and 5 others v. Agha Arshad and another 2013 MLD 1083 ; Messrs Sunrise Textile Limited v. Messrs Tomen Corporation and 4 others (1994 CLC 2000 ); Messrs Franklin Credit and Investment Company Ltd. v. Export Processing Zones Authority and another (2016 MLD 952), Shah Muhammad v. Export Processing Zones Authority (2011 YLR 2413 ), Liaquat Ali Ghanghro v. Province of Sindh and another (2007 CLC 923), Karachi City Cricket Association, Karachi v. Mujeebur Rehman, Chairman, Ad Hoc Committee, Pakistan Cricket Board, Lahore and 2 others (PLD 2003 Karachi 721), Civil Aviation Authority , Islamabad and others (PLD 1997 SC 781), Union of Civil Aviation Employees, Lahore and another (PLD 1993 Lahore 306), Government of N.W.F.P. v. I.A. Sherwa ni and another (PLD 1994 SC 72), Zainab Zahid Naseem and others v. Federation of Pakistan and others (Suit No. 663/2014), Shariq ul Haq and 5 others v. Pakistan International Airlines Corporation Limited and another (2018 PLC (C. S.) 975), Muhammad Mubeen us Salam and others v. Federation of Pakistan and others (PLD 2006 SC 602), Imran Ahmed Khan v. Pakistan and another (2008 CLC 697), Shahid Khalil v. Pakistan International Airlines Corpor ation, Karachi (1971 SCMR 568), Shahid Khalil v. Messrs Pakistan International Airlines Corporation, Karachi (PLD 1972 Karachi 477), A. George v. Pakistan International Airlines Corporation (PLD 1971 Lahore 748) and Tarbela Joint Venture and Chief Camp Commandant v. Labour Appellate Tribunal NWFP and 2 others (PLD 1975 Peshawar 240) and an unreported judgment in the case of Messrs Sui Southern Gas Company Limited v. Registrar of Trade Union and others (Civil Petition No.449/2019).
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3. Learned Counsel for PIA has contended that Clause 1.8 of the Working Agreem ent covers the present dispute i.e. whether in absence of a termination clause, can PIA terminate the Agreement or not; and it is for the Arbitrator to decide that whether such act of PIA is lawful; that the word "All disputes" covers termination as it is the case of PIA that they cannot continue with this Working Agreement, which is tilted in favour of the Plaintif fs; hence cannot be performed any further; that it is settled law that post termination of an Agreemen t, the Arbitration clause survives and the doctrine of separability applies; that PIA has repudiated / modified the Agreement much earlier by conduct as well as through Amin Order No.13/2017 dated 28.7.2017, whereby , revised terms and conditions of service, benefits and facilities for Pilots have been notified; and for the present moment neither can honor; nor is required to continue with the said Agreement; that it is the case of PIA that such termination falls within all disputes as provided in the Arbitration clause; that the contention that in absence of a termination clause, it cannot be terminated is a matter of interpretation of Agreement, which is covered under Clause 1.8; hence PALPA cannot abdicate itself from referral of the matter to Arbitration; that any illegality or an illegal act by any of the parties to an Agreement including the termination falls within a dispute; hence is arbitrable; that the Agreement in question is highly unfavourable to PIA and cannot remain operative for all times to come, whereas, such termination is valid or not, is to be decided by the Arbitrators, whereas, per settled law, a termination, even if wrongful, is a matter which should be decided by the Arbitrators if there is an Arbitration clause in the Agreement; that insofar as the legality / donstitutionality of Notification dated 28.04.2020 is concerned, the same has to be decided by this Court as held in the case reported as K-Electric Limited and another v. Federation of Pakistan and others (PLD 2014 Sindh 504), whereas, the matter of dispute regarding the Agreement and its termination can be referred to Arbitration; that since the Plaintif fs' Counsel in addition to arguing Section 34 application has also pressed upon the injunction application seeking protection under Section 41 (ibid), PIA has, without prejudice, filed its counter affidavit and opposed the grant of an injunction as Plaintif fs have otherwise failed to make out any prima-facie case nor balance of convenience lies in their favour , whereas, irreparable loss, if any, would be caused to PIA; that it is the case of PIA that the impugned Notice / Letter dated 30.04.2020 is independent and has got nothing to do with the Notification dated 28.04.2020 issued under the 1952 Act; that PALPA has been de-recognized through impugned Letter/Notice dated 30.04.2020 and so also the Agreement has been terminated including all past administrative orders issued by PIA through Admin. Order No.5/2020; that PIA is not willing to negotiate with PALPA any further at least to the extent of terms and conditions of service of Pilots; that Notifications under the 1952 Act have been issued regularly in the past as well; and the Plaintif fs cannot deny the issuance and applicability of the 1952 Act on their services; that insofar as the PALPA is concerned, they have no cause of action as. the Notification in question only applies to the Pilots and not to PALPA; that the objection regarding non-formation of an opinion by the Federal Government is misconceived as the Notification clearly provides that it has been issued for proper management of Flight Operation, Public Safety and the welfare of the public, which is sufficient enough to satisfy that whether an opinion has been formed or not; that the majority shares are held by the Federal Government and PIA is a Public Sector Organization under the Companies Act, 2017; hence the 1952 Act can be invoked and applied on the employees of PIA; that the employment of all within PIA is protected; rather this Notification is beneficial to them as it does not takes away any right of the employees without due process and notice; nor PIA intends to resort to downsizing or initiating any action without due process; hence no cause of action has accrued; that the Plaintif fs before filing instant Suit had filed Suit No. 536/2020, which was withdrawn even before issuance of summons / notice(s) and in that Suit in Paras-14 and 18 they had pleaded for referring the matter to Arbitration and in the present Suit both these paragraphs have been deleted; hence the conduct of the Plaintif fs while having identical prayers does not warrant exercise of discretion by the Court in their favour; that they cannot be permitted to blow hot and cold at the same time; that insofar as applicability of Section 6 of the 1952 Act is concerned, no further action is required as pursuant to The Pakistan Essential Services (Maintenance) Rules, 1962, the Chairman of the National Industrial Relation Commission already stands notified and copy of the impugned Notification has been sent to him; therefore, any aggrieved person can approach his office; that it has been clarified by the PIA that no terms and conditions of the employment are being altered or varied, whereas, the Plaintif fs have failed to identify in their plaint anything by which they are presently aggrieved so as to invoke jurisdiction of this Court and seek any injunctive
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relief; that PIA is of the opinion that PALPA has no role to play as to negotiating the terms and conditions of service of its Pilots and any individual Pilot, if aggrieved, can always approach the management for redressal of his grievance; that the impugned Letter/Notice dated 30.04.2020 has been issued by the approval of the Board of Directors of the PIA and he has relied upon the Extract of Minutes of Meeting as well as the Resolution passed thereon; that the Board of Directors, which is the competent authority has taken all such decisions and not the Chief Executive Officer as alleged by the Plaintif fs; that PIA has got nothing to do with the 1952 Act, nor PIA is acting on the directions of the Government or anyone else, except by the decision of the Board of Directors; that PALPA even has no locus standi as its legal status is also disputed by PIA pursuant to the opinion of the Registrars' office in some other legal proceedings; that it is not binding upon PIA to accept PALPA as the representative body or Collective Bargaining Agents of Pilots as there is no law or statute, which could recognize and compel PIA to accept PALPA as such; that even otherwise an Association or a Society has no locus standi to come forward and plead the case of an individual employee; that as per settled law an Association is not an aggrieved person so as to agitate enforcement of any fundamental right guaranteed under the Constitution; that in the entire Plaint, there is no mention as to the instant Suit being filed under a representative capacity in terms of Order I, Rule 8, C.P.C.; that no authority or Resolution has been annexed with the Plaint so as to institute the Suit on behalf of PALPA; that the objections of PALPA are not covered within the contemplation of Section 20 of the Societies Act, 1860, that it is the case of PIA that despite issuance of impugned notice, there is no change in the Working Agreement read with Admin Orders from time to time, already in existence; hence it is a case of no cause of action; that neither the salaries nor the benefits are being reduced pursuant to the impugned letter / notice dated 30.4.2020; that none of the Pilots are being laid off on the basis of termination of the Working Agreement, notwithstanding the fact that all International Airlines are doing so; that Plaintif fs Nos.2 to 5 have not disclosed or mentioned in the entire Plaint whether they are members .of PALPA or otherwise holding any office in PALPA; that they have not pleaded their grievance independently and separately as against PALPA; that it only the Pilots, who could be aggrieved; but they have not pleaded so; that after issuance of the impugned Notice dated 30.04.2020, Admin Order No.5/2020 has been issued, which now governs the relationship of PIA and its Pilots which is not under challenge; that appropriate reasons have been provided in the impugned Notice dated 30.04.2020 and all detailed reasons are not required to be incorporated; that PALPA is charging contribution from the Pilots as per their status / category and seniority , failing which they cannot remain its members and in turn it pressurizes to negotiate favorably in favour of the Pilots; that under the Agreement in question, they have, with misrepresentation got incorporated a clause even in respect of training of Pilots, which per the Agreement has to be done by PALPA and not by PIA which is not only strange but absurd as well; that for some reason or the other , majority of the personnel in PIA's management while negotiating the Working Agreement, have been Pilots and members of PALPA; hence the Agreement is a fraud on PIA inasmuch as vested interests on both sides have negotiated and agreed upon the terms, which are heavily favourable and tilted in favour of PALPA causing huge losses to PIA; that Claus e 12.2.1 regarding inquiry and investigation, Article 13.1 regarding employment to sons and daughters of Pilots are certain examples of this assertion; that in 2016, PIA appointed Deloitte to scrutinize the Working Agreement and subsequent events so as to arrive at a fair and better terms and conditions of service of Pilots in PIA and in the report, it has been revealed that since long the terms are being maneuvered as well as manipulated by the Pilots sitting on both sides of the negotiating table; that it is a case of conflict of interest as per Company Act, 2017; that all along in these negotiations, the Pilots in the manageme nt of PIA have never consulted the Human Resources Department nor have sought any approval; that pursuant to Deloitte Report, Admin Order No.13/2017 has been issued through which certain amounts are being deducte d from the salaries of the Pilots paid in excess, which is under challenge by way of a civil suit; that a contract, even without a termination clause, cannot continue for all times to come and can be terminated in view of Section 39 read with Sections 72 and 73 of the Contract Act, 1872; that no right in law has accrued to PALPA and the Suit is barred under Section 42 of the Specific Relief Act, 1877; that all ingredients for an injunctive order i.e. prima-facie case, balance of convenience and causing of irreparable loss to the Plaintif fs are missing; hence they are not entitled for any injunction and the only remedy is by way of damages, if any; that the entire case is based on service benefits and such a contract, if any, cannot be specifically enforced under
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Section 21 of the Specific Relief Act, 1877; that without prejudice, PIA in the past has though entered into negotiations with PALPA, but only by way of discretion and consent, which amounts to a License and can be revoked at any moment of time without notice; that any understanding with PALPA and or response filed in previous litigation with PALPA cannot bind PIA so as to always accept the representative capacity of PALPA as presently PIA does not wish to continue with any negot iations with PALPA, being devoid of any legal obligation; however , would deal with Pilots individually; that admission, if any, in a previous matter , does not bar or restraint PIA from taking a fresh and different stance in the present proceedings; that PALPA admittedly has no statutory backing so as to claim rights as a Collective Bargaining Agent of Pilots; that after expiry of the Working Agreement, PIA has never recognized PALPA so as to negotiate the terms and conditions and in this regard Admin Order No.13/2017 is already in field, whereas, after issuance of impugned Notice dated 30.04.2020, the time is running against PALPA as to termination and new notice; that it is also a settled proposition that the Plaintif fs are not entitled for status-quo ante inasmuch as through impugned notice PALPA already stands derecognized; that in the given facts no mandatory injunction, at this stage of the proceedings, can be granted; that there is no question of violating any Constitutional Rights of PALPA as claimed in terms of Article 17 inasmuch as they may form an Association; but it is only the right to enter into negotiations with PIA, which is being derecognized as it is not backed by any statutory provisions or even in terms of Article 17 of the Constitution of Islamic Republic of Pakistan; that even a Collective Bargaining Agent under the Industrial Relations Ordinance, 1969 or presently Indus trial Relations Act, 2012, cannot negotiate outside the very mandate of the Statute as settled by the Hon'ble Supre me Court in a number of cases. In support of his contention he has relied upon the cases of Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others (PLD 1989 SC 166), Mohtarma Benazir Bhutto and another v. President of Pakistan and others (PLD 1998 SC 388), Shell Pakistan v. Ashiq Muhammad Malik (2006 PLC 477), Joint Action Committee of PIA Employees v. Federation of Pakistan and others (Writ Petition No. 1104/2016), Muhammad Yusuf Shah v. PIAC (PLD 1981 SC 224), Muhammad Zaman v. Government of Pakistan (2017 SCMR 571), Democratic Workers Union CBA v. SBP (2002 PLC (C. S) 614), Pakistan Diploma Engineers Federation v. Federation of Pakistan (1987 CLC 2154 ), Pakistan Steel Re-Rolling Mills Association v. Province of West Pakistan (PLD 1964 Lahore 138), Msar Ahmed Khan v. Federation of Pakistan and others (1999 SCAM 1338), Messrs Khas Traders v. Registrar , Trade Union (1990 PLC 351), Union of Civil Aviation Employees Lahore v. Civil Aviation Authority (PLD 1993 Lahore 306), Civil Aviation Authority Islamabad and others v. Union of Civil Aviation Employees and another (1997 PLC 653), Abdul Wahab and others v. HBL and (2013 SCMR 1383 ), Habib- Bank Limited and 2 others v, National Industrial Relation Commission and others (1998 PLC 674), Husain All Chandlo v. The Secretar y Ministry of Communication Islamabad and 3 others (1992 SCMR 32), The Contract of Employment 1976, The Interpretation of Contracts 1997, Islamic Republic of Pakistan v. M. &man Khan (1997 SCMR 1508 ), The Hub Power Company Limited and another v. Wapda and others (PLD 2000 SC 841), Firm Karam Narain Daulat Ram and another v. Messrs Volkart Bros and another (AIR (33) 1946 Lahore 116), Karachi Shipyard and Engineering Works Ltd. Karachi v. Messrs General Iron and Steel Works Ltd. (PLD 1971 Karachi 501), Pakistan Burmah Shell Ltd. v. Tahir All (1983 CLC 2745 ), Island Textile Mills Ltd. Karachi v. V/O Techno Expert and another (1979 CLC 307), Lahore Stock Exchange Limited v. Fredrick J. Whyte Group (Pakistan) Ltd. and another (PLD 1990 SC 48), Port Qasim Authority , Karachi v. Al-Ghurair Group of Companies and 3 others (PLD 1997 Karachi 636), Messrs Sadat Business Group Ltd. v. Federation of Pakistan and another (2013 CLD 1451 ), Pakistan Mobile Communication Ltd. (Mobilink) Islamabad v. Naimatullah Achakzai and 3 others (2012 CLC 12), Hidayatullah and 10 others v. Shamimuddin and 14 others (1993 MLD 993), Messrs Haji Muhammad Ibrahim and Sons and others v. Karachi Municipal Corporat ion and others (PLD 1960 (W. P.) Karachi 916), Pakistan Television Corporation v. M. Babar Zaman and others (1989 SCMR 1549 ), Haji Mojakkir All v. Regional Transport Authority , Sylhet and others (PLD 1967 Dacca 6), The Punjab Miner's Labour Union v. The West Pakistan Industrial Development Corporation, Jhelum (PLD 1972 Lahore 489), The Marriage Hall Association v. The Chairman, Central Board of Revenue Islamabad and 2 others (1998 CLC 33), Messrs Mutual Funds Association of Pakistan (MUF AP) v. Federation of Pakistan through
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Secretary , Ministry of Finance, Government of Pakistan and another (2010 PLC 306), Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary Ministry of Information Technology and Telecommunication and others (2012 SCMR 152) and Karachi Pipe Mills Employees Union , Karachi v. Karachi Pipe Mills Ltd., Karachi (1992 SCMR 36 ). 4. Learned DAG arguing on behalf of Defendant No.1/Federation of Pakistan has contended that the Notification in question already stands gazetted on 11.05.2020, which is within a reasonable time as settled in the cases reported as Muhammad Ali and 4 others v. Lahore Development Authority through Director-General and 4 others (2002 MLD 607) and Pakistan v. Muhammad Ahsan (1991 SCMR 2180 ); that the Notification clearly provides the opinion of the Federal Government; hence any objection to this effect is misconceived and in support he has relied upon the case reported as Chief Commissioner , Karachi v. Jamil Ahmad and Municipal Commissioner Karachi (PLD 1961 SC 145); that the 1952 Act empowers the Federal Government to apply this Act on employees of Federal Government as well as to any other sector , which includes PIA; that in past on many occasions, the 1952 Act had been made applicable on PIA, even after promulgation of the 2016 Act and was never…
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