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Petitioner: (1) Mustafa F. Ansari (2) Sikandar Ellahi (3) Mumtaz Ahmed (4) Shahid M. Islam VS Respondent: (1) Pakistan & another (2) PIA through its Chairman (3) PIAC
Court Name: Sindh High Court Judge(s): Muhammad Junaid Ghaffar Title:(1) Mustafa F. Ansari (2) Sikandar Ellahi (3) Mumtaz Ahmed (4) Shahid M.
Islam vs (1) Pakistan & another (2) PIA through its Chairman (3) PIAC Case No.:(1) Suit No. 1244 of 2006 (2) Suit No. 1346 of 2006 (3) Suit No. 1349 of 2006 (4) Suit No. 1351 of 2006 Date of Judgment:2017-08-04 Reported As: 2017 SHC 302 Result: N/A Judgment Muhammad Junaid Ghaffar , J. All these four Suits have one thing in common and i.e. the Plaintif fs compulsory retirement in terms of Admin Order(s) Nos. 40/2001 and 41/2001 both dated 01.11.2001, whereby , Defendant ("PIA") initiated and implemented a Mandator y Retirement Scheme. All Plaintif fs before this Court stood retired pursuant to such scheme which has been impugned in these Suits. 2. The precise facts in Suit No. 1244/200 6 ("leading Suit") are that the Plaintif f was appointed in PIA as Marketing Officer in Pay Group VI in April, 1970. On 14.10.1999 the Plaintif f was promoted as Director Marketing and Special Assistant whereas, on 04.08.2000 Plaintif f was appointed as Director Special Projects. It is further stated that the Board of Directors of PIA in its 258t meeting held on 22.10.2001 approved certain amendments / addition in PIAC Employees Service Discipline Regulations, 1985 ("Regulations 1985 ") and in view of the said meeting vide Admin Order No. 40/2001 dated 01.11.2001 the Regulations of 1985 were amended and pursuant to such amendment Admin Order No. 41/2001 dated 01.11.2001 was issued and thereafter , on 05.11.2001 ("impugned order ") the mandatory retirement order of the Plaintif f was issued. The Plaintif f being aggrieved filed a departmental Appeal on 04.12.2001 which was turned down vide order dated 26.02.2002, against which an Appeal bearing No. K-330/2002 was filed before the Federal Service Tribunal ("FST"). Thereafter , the Appeal of the Plaintif f was allowed by FST vide judgment dated 12.05.2003 whereby , the Plaintif f was reinstated with all back benefits. PIA being aggrieved with this judgment preferred Civil Petition for Leave to Appeal No. 263/2003 before the Hon'ble Supreme Court of Pakistan wherein, leave was granted on 15.03.2004 and the order of FST was suspended. After grant of leave, the Appeal was numbered as C.A No. 476/2004 and during pendency of this Appeal in another matter a judgment was announced in the case of Muhammad Mubin-us-Salam and others V. Federation of Pakistan and others (PLD 2006 SC 602), whereby, Section 2-A of the Service Tribunal Act of 1973 was declared ultra vires and certainh
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directions were issued. In terms of the said judgment the Appeal pending before the Hon'ble Supreme Court was abated and as per directions contained in Para 109 the Plaintiff filed instant Suit within 90 days of the said judgment on 23.09.2006. 3. The Plaintif f in Suit No. 1346/2006 was appointed in PIA as Traffic Assistant in 1962 and till passing of the Mandatory Retirement Order on 05.11.2001 had reached to Pay Group X and the last assignment held by him was that of Director Customer Service. The Plaintif f challenged the Retirement Order dated 05.11.2001 through a Departmental Appeal on 28.11.2001 which was dismissed vide order dated 26.02.2002 which was further challenged before the FST on 28.03.2002 bearing Appeal No. 332(K)CE/2002 and vide judgment dated 12.05.2003 the Appeal of the Plaintif f was allowed and he was reinstated with all back benefits . The other facts are identical to Suit No. 1244/2006 and this Suit was also filed on 23.09.2006. 4. The Plaintif f in Suit No. 1349/2006 was appointed in PIA on 31.07.1975 as an Officer in the Administration Department and till passing of the Mandatory Retirement Order on 05.11.2001 had reached in Pay Group VII. The Plaintif f in this Suit impugned the Mandatory Retirement Order dated 05.11.2001 by filing an Appeal before the Service Tribunal on 28.03.2002 which was decided through the same order dated 12.05.2003. The remaining facts are identical and this Suit was also filed on 23.9.2006. Similarly plaintif f in Suit No.1351 of 2006 was appointed on 5.3.1978 as a Manager in Pay Group IX. His retirement order was passed on 5.11.2001 which was challenged through a departmental appeal dated 28.11.2001 which was dismissed vide order dated 27.2.2002 against which an appeal was preferred before FST which was also decided through the same order dated 12.5.2003. 5. Written statements were filed in all these Suits and on 24.03.2008 in Suit No 1244/2006 following issues are settled, whereas, vide order dated 17.03.2008 common issues were settled in Suit No. 1346, 1349 and 1351/2006. The issues read as under:- Suit No.1244 of 2006 "1) Whether the Suit is maintainable? 2) Whether the Suit is barred by time quo relief of damages? 3) Whether any damage of sought claimed in the plaint can be allowed where the law governed by under the law of master and servant? 4) Whether the 258 meeting dated 22.10.2001 of the Board of Directors of the Defendant No. 2 and Admins Order No. 40 and 41/2001 dated 01.11.2001 upon which the termination letter dated 05.11.2001 was issued to the Plaintiff are unlawful and without jurisdiction? 5) Whether the Plaintiff is entitled for damages? 6) What should the decree be?" Suit Nos. 1346-1349 & 1351 of 2006 "1) Whether employment of the Plaintiff was governed by law of master and servant? 2) Whether the Suit qua relief of damages is barred by limitation? 3) Whether the mandatory retirement of the Plaintiff on 5 Novemebr , 2001 was legal and the same is tantamount to compulsory retirement without lawful authority? 4) Whether the mandatory retirement scheme notified vide Admin order No. 41/2001 dated 1 Novemeber , 2001 was in accordance with applicable law and principles of natural justice? 5) Whether the out of Court settlement by the Defendant in a similar case of mandatory retirement of squash player Jahangir Khan and grant of different terms and conditions and benefits to other officers removed under mandatory scheme has resulted in discrimination, victimization and financial loss to the Plaintiff? 6) Whether any damages for future employment benefits, mental torture, loss of reputation etc. can be claimed where the employment is governed by the law of master and servant? 7) Whether the Plaintiff is entitled to benefits, compensation and damages? 8) Whether the Plaintiff is entitled to prayed for and if so, what should relief and decree be?" 6. Dr. Muhammad Farogh Naseem learn ed Counsel for the Plaintif f in Suit No. 1244/2006 has led the arguments and has contended that insofar as the objection of maintainability regarding limitation is concerned, per learnedth th st
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Counsel the Hon'ble Supreme Court in the case of Mubin-us Salam supra vide Para 109 had given a period of 90 days after abatement of the Appeal to seek appropriate remedy and instant Suit has been filed within 90 days and therefore this objection is not sustainable; that even otherwise, the order of FST was in favour of the Plaintif f and therefore, there could be no question of any limitation against the Plaintif f after abatement of the proceedings, whereas, no act of the Court shall prejud ice a litigant; that it is an admitted position that the relationship between the Plaintif f and Defendant is of a master and servant and therefore, the mandatory retirement can be challenged by the Plaintif f though a Civil Suit for claiming compensation and damages notwithstanding the fact that FST had already restored the Plaintif f with all back benefits; that the impugned order of mandatory retirement was passed without affording any opportunity of a show cause and or hearing, whereas, it is settled law that the principles of natural justice cannot be dispensed with hence, the impugned order is a void order ; that the Defendants have failed to lead any evidence to the effect that such an Admin Order was warranted in law and further that such an order has served its purpose as intended inasmuch as nothing has been brought through evidence that the alleged losses were wiped out and a proportionate profit was earned; that Chief Executive Order No. 06/2001 dated 05.07.2001 provides a mandatory notice before any adverse action is taken which in the instant matter has been dispensed with without any lawful authority and justification therefore, the principle of natural justice has been violated; that the act of PIA through the impugned order is not only malafide and arbitrary but violates Article 25 of the Constitution by discriminating the Plaintif f vis--vis. the other employees and is in fact a case of pick and choose by exercising discretion arbitrarily; that even in Golden Hand Shake Scheme all benefits up to the retirement age were granted by PIA and other Government Departments, whereas, in this matter the Plaintif f has been retired compulsorily with only three months' salary; that in the case of Jahangir Khan (a similarly placed employee) after his success before FST an agreement / compromise was reached by PIA so as to accommodate him and compensate fully, whereas, no such exercise was done in the case of the Plaintif f; that the Plaintif f is entitled for judgment and decree for full compensation of benefits including the retirement benefits, if any. In support of his contention he has relied upon Riazuddin V. Chairman, Pakistan International Airlines Corporation and 2 others (PLD 1992 SC 531), Anwar Hussain V. Agricultural Development Bank of Pakistan and others (PLD 1984 SC 194), Aurangzeb V. Messrs Gool Bano Dr. Burjor Ankalseria and others (2001 SCMR 909), Karachi Development Authority & another V. Wali Ahmed Khan and others (1991 SCMR 2434 ), Pakistan International Airlines Corporation and others V. Tanwe er ur Rehman and others (PLD 2010 SC 676), Muhammad Hanif V. Mst. Munawar Bi @ Munawar Noor (1999 SCMR 2230 ), Pakistan Red Crescent Society and another V. Syed Nazir Gillani (PLD 2005 SC 806), State Life Insurance Corporation of Pakistan through Chairman V. Raz Muhammad Shanwari and others (2007 SCMR 1400 ), Muhammad Idrees V. Agricultural Development Bank of Pakistan and others (PLD 2007 SC 681), Pakistan and others V. Public at Large and others (PLD 1987 SC 304), Chairman, Pakistan Broadcasting Corporation, Islamabad V. Nasir Ahmed and 3 others (1995 SCMR 1593 ), Pakistan International Airlines Corporation (PIAC) through Chairman and others V. Nasir Jamal Malik and others (2001 SCMR 934), Abdul Hafeez Abbasi and others V. Managing Director , Pakistan International Airlines Corporation, Karachi and others (2002 SCMR 1034 ), Pakistan International Airlines Corporation through Chairman and others V. Shahzad Farooq Malik and another (2004 SCMR 158), Collector , Sahiwal and 2 others V. Mohammad Akhtar (1971 SCMR 681), Sardar Farooq Ahmed Khan Leghari and others V. Federation of Pakistan and others (PLD 1999 SC 57), Managing Director , Sui Southern Gas Company Ltd. Karachi V. Ghulam Abbas and others (PLD 2003 SC 724), Cannon Products Ltd. V. Income Tax Officer , Companies Circle, Karachi and 2 others (PLD 1985 Karachi 572), Director Food, NWFP and another V. Messrs Madina Flour & General Mills (Pvt.) Ltd and 18 others (PLD 2001 SC 1), Government of NWFP V. I.A. Sherwani and another (PLD 1994 SC 72), and Walayat Ali Mir V. Pakistan International Airlines Corporation through its Chairman and another ( 1995 SCMR 650 ). 7. Mr. Mehmood Alam learned Counsel for the Plaintif f in Suit No. 1349/2006 in addition to adopting the arguments of Dr. Farogh Naseem has contended that the impugned order is violative of the 258t meeting of the Board of Directors; that before removal appropriate notice ought to have been given; that it is a case of pick and choose, whereas, the discretion has been exercised malafidely; that the same is against the corporate mannerism; that at the relevant time Removal from Service Ordinance, 2000, ("RSO ") was in existence and applicable therefore,h
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without prejudice even if such action was to be taken the same should have been done under RSO, and the procedure provided therein should have been followed; that the impugned Admin Order cannot take away the plaintif fs right whereas Section 10 of RSO has an overriding effect; that after mandatory retirement the plaintif f remained jobless, hence, entitled for damages and losses, whereas, the sigma is still there; that there is no adverse record of the plaintif f insofar as his services are concerned; that even after abatement the order of FST whereby reinstatement with full benefits was allowed remains in field; that the plaintif f is entitled for the relief prayed for. 8. Mr. Muhammad Ali Lakhani Learned Counsel for the plaintif f in Suit No. 1351/2006 has also adopted the arguments of Dr. Farogh Naseem and has additionally contended that the case of Mubin-us Salam in fact does not apply at least to the extent of any benefit to PIA, inasmuch as their appeal bearing No. 475 to 479 of 2004 against the order of FST were in fact withdrawn by PIA vide order dated 12.10.2010 and were accordingly dismissed by the Hon'ble Supreme Court as not pressed. Therefore, the defendant can neither raise any objection as to limitation nor to the extent of the validity of the order of FST which still remains in field as Appeal against such order was dismissed as withdrawn; that once it is contended that a petition does not lie against PIA for having no statutory rules then the only remedy is a Civil Suit hence, the same is compe tent; that other similarly placed employees were given all such benefits as are admissible in such situations, therefore, the plaintif f has been discriminated with a meager compensation of three months' salary . In support of his contention he has relied upon Muhammad Dawood & others V. Federation of Pakistan and others (SBLR 2007 Sindh 495), Imran Ahmed Khan V. Pakistan through Secretary , Ministry of Defence and another (2008 CLC 697), Masood Ahmed Bhati and others V. Federation of Pakistan and others (2012 SCMR 152), Muhammad Ashraf V. Director General, Multan Development Authority , Multan and another (2000 PLC (CS) 796, a judgment dated 8.10.2015 in Suit No. 822/2015, PIA Corporation V. Syed Suleman Alam Rizvi and others (2015 SCMR 1545 ), Nighat Yasmin V. Pakistan International Airlines Corporation, Karachi and another (2004 SCMR 1820 ), Arif Majeed Malik V. Board of Governors Karachi, Grammer School (2004 CLC 1029 ), Khuda Bakhsh and others V. Cholistan Development Authority and others (1998 SCMR 2231 ), and Gohar Ali V. Messrs Hoechst Pakistan Limited ( 2009 SCMR 109 ). Mr. Abdur Rahman, has submitted that the case of plaintif f in Suit No.1346/2006 is identical to other plaintif fs, and therefore in order to avoid burdening the Court any further , he would adopt the arguments of all the learned Counsel appearing for the plaintif fs. 9. On the other hand, Learned Counsel for PIA has contended that all these Suits are time barred inasmuch as after abatement of the proceedings, though they were required to seek remedy within 90 days which has been done; however, the prayer in these Suits vis--vis. the Appeals before FST are materially different and distinguishable; therefore, the limitation for cause of action if any, regarding damages accrued to them will have got be calculated from 5.11.2001 i.e. the date of their mandatory retirement; hence all the Suits are time barred; that Article 22 of the Limitation Act provides a period of one year, whereas, even otherwise, for recovery of any amount it is three years, hence the Suits are time barred; that the judgment in the Mubin-us Salam case does not support the question of limitation, whereas, in terms of Order 2 Rule 2 CPC the claim of damages is barred as no such damages were claimed before the Tribunal; that Section 14 of the Limitation Act is not attracted; that the Hon'ble Supreme Court in Mubin-us Salam case has not given any clear and specific protection vis--vis. Limitation, therefore, all these Suits are time barred; that Admin Order No. 41/2001 is supported by the decision of the Board of Directors taken in the 258t meeting held on 22.10.2001 and such decision was taken with lawful authority by the Managing Director on the basis of such meeting, whereby, such powers were delegated and accorded; that as per Annual Report 2001 there were accumulative losses; hence compulsory retirement was inevitable; that no show cause notice was required, whereas, the provisions of RSO are not applicable in this case; that the case of Anisa Rehman is distinguishable inasmuch as the same was rendered in Constitutional Jurisdiction which has a rather wider scope than the powers of a Civil Court; that since no punitive action was taken i.e. any penalty etc. therefore, no show cause notice was required in terms of the Admin Order in dispute; that there is no stigma and no punishment was awarded; that neither it is a case of any malafides nor discrimination; that as much as 91 persons were retired, therefore, discrimination cannot be pleaded; that theh
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principle of last in first out is not applicable as it applies only on workers class covered under Standing Order 1968. In support of his contention he has relied upon Syed Rashid Hussain Shah V. Azad Government of the State of Jammu and Kashmir and 6 others (2011 PLC (CS) 344), Abdul Hafeez Abbasi and others V. Managing Director, Pakistan International Airlines Corporation, Karachi and others (2002 SCMR 1034) and United Bank Limited V. Shahmin Ahmed Khan and 41 others (1999 PLC (CS) 1032). 10. I have heard all the learned Counsel and perused the record. Though separate issues have been settled in Suit No. 1244/2006 and other Suits however , the controversy in all these Suits are identical in nature therefore, the issues framed and settled in Suit No. 1244/2006 are being taken up and decided and the findings arrived at will also be applicable in Suits No. 1346,1349 & 1351/2006 as mutatis mutandis. ISSUE Nos. 1 & 2. 11. These issues have been settled on the basis of objection so raised on behalf of PIA. The first objection is in respect of maintainability of the Suits as according to PIA no Suit is maintainable even if the relationship between the Plaintiff and Defendant is governed by the rule of master and servant, whereas, the second objection is in respect of limitation vis--vis. claiming of damages as according to PIA all these Suits are time barred as limitation started running from the date of their mandatory retirement from service and not from the date of the judgment passed by the Hon'ble Supreme Court in Mubin-us Salam case supra. To clearly understand the controversy it would be appropriate and expedient to refer to the operative part of the judgment in Mubin-us Salam supra which at Para 109 reads as under:- "109 Now the question is as to what would be the effect of this judgment on the case pending before the Court and Federal Service Tribunal. In this behalf it may be noted that following the rule of past and closed transactions, laid down in the case of Mehram Ali V. Federation of Pakistan (OLD 1998 SC 1445), it is directed as follows:- (a) The cases which have been decided finally by this Court in exercise of jurisdiction under Article 212(3) of the Constitution shall not be opened and if any Review Petition, Misc. Application or Contempt Application, filed against the judgment is pending, it shall be heard independent and shall not be affected by the ratio of this judgment. (b) The proceedings instituted either by an employee or by the an employer , pending before this Court, against the judgment of the Service Tribunal, not covered by category (a) before this Court or the Service Tribunal shall stand abated, leaving the parties to avail remedy prevailing prior to promulgation of section 2-A of the ST A, 1973 . (c) The cases or proceedings which are not protected or covered by this judgment shall be deemed to have abated and the aggrieved person may approach the competent forums for redressal of their grievances within a period of 90 days and the bar of limitation provided by the respective laws, shall not operate against them till the expiry of stipulated period. (d) The case in which the order of Service Tribunal has been implemented shall remain intact for a period of 90 days or till the filing of appropriate proceedings, whichever is earlier . (e) The Service Tribunal shall decide pending cases under section 2-A of the STA, 1973 in view of the above observations. However, if any of the cases is covered by clause "c" (ibid), a period of 90 days shall be allowed to aggrieved party to approach the competent forum for the redressal of its grievance." (Emphasis supplied) 12. The judgment in Mubin-us Salam case has held that Section 2A of the STA 1973 is partially ultra-vires, whereas, the cases of employees falling under Section 2A of STA 1973 who do not fall within the definition of Civil Savants as defined in Section 2(1)(b) of the Civil Servants Act, 1973, shall have no remedy before the Service Tribunal functioning under Article 212 of the Constitution and they would be free to avail appropriate remedy. After having arrived at such conclusion, the Hon'ble Supreme Court has recorded the observations in Para 109 of the judgment as above regarding pending cases. It is an admitted position that when the plaintiffs were mandatorily retired from service they had preferred Appeals before the Tribunal and such Appeals were entertained and allowed in their favour by reinstating them in service with all back benefits, though not implemented by PIA. It was never under dispute till passing of the judgment in the Mubin-us Salam case that Plaintiffs were being treated as Civil Servants at least to the extent of availing the remedy as provided before the Service Tribunal. Even PIA did not raise any objection to that effect; nor had the Tribunal given any such findings. Subsequently, PIA preferred
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Leave to Appeal before the Hon'ble Supreme Court by impugning judgment of the Service Tribunal. In such circumstances, when judgment in the case of Mubin-us Salam was passed, the Appeals filed by PIA were pending before the Hon'ble Supreme Court and therefore, instant cases would be covered under Sub-Para (b) of Para 109 of the said judgment. The appeal of PIA (Employer) was pending before the Hon'ble Supreme Court against the judgment of FST, whereas, PIA's case was not covered by Sub-Para (a) of the said judgment; consequently it stood abated, leaving the parties (Plaintiff) to avail legal remedy prevailing prior to promulgation of Section 2A in the STA, 1973, i.e. a Civil Suit under Section 9 CPC, as a Constitutional Petition was otherwise barred as there are no statutory rules of employment in PIA. Therefore, for all practical and legal purposes the Appeal pending before the Hon'ble Supreme Court stood abated and so also the proceedings before the Tribunal, whereby, the order passed in favour of the Plaintiffs also stood abated in view of the dicta subsequently laid down in the case of Muhammad Idrees supra. Accordingly, the Plaintiffs were left with only one remedy which was provided under Para 109 (c) of Mubin-us Salam case and admittedly they have availed such remedy by filing instant Suits under Section 9 CPC within the period of 90 days from the date of judgment in the Mubin-us Salam case. In the circumstances, I do not see any justification to uphold the feeble objections so raised on behalf of the PIA regarding limitation in this matter. Even otherwise, it appears to be an admitted position that the Plaintiffs all along were diligent in availing the appropriate remedy as was available to them at the time of passing of the impugned order of mandatory retirement. They had availed the remedy before FST and an order was passed in their favour, and the said order was challenged in Appeal by PIA which was pending before the Hon'ble Supreme Court when judgment in Mubin-us Salam case was announced. Therefore, per settled law, it may be observed that none shall be non-suited due to an act of the Court. The Hon'ble Supreme Court was mindful of this fact and situation, and therefore, provided appropriate remedy to the person(s) who may have been affected or prejudiced with the implementation of judgment in Mubin-us Salam case and accordingly provided a reasonable time of 90 days for such affected person(s). The Plaintif fs accordingly availed the same and therefore, I am of the view that all these Suits are within the limitation period and are not barred by any law qua the claim of damages as contended on behalf of PIA. There is another interesting aspect of the matter and reference in this regard may be made to the case of Abdul Rafeez Abbasi & others v Managing Director Pakistan International Airlines Corporation & Others (2002 SCMR 1034 ). In that case (relevant for this issue only as there were numerous…
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