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Petitioner: PAKISTAN TELECOMMUNICATION COMPANY LIMITED through General Manager VS Respondent: MUHAMMAD ZAHIDHonorable Justice Raja Fayyaz AhmadS. Naeem Bokhari,Muhammad Akram Sheikh
2009 P L C (C
2009 P L C (C.S.) 1001
[Supreme Court Pakistan]
Present: Iftikhar Muhammad Chaudhry, C.J., Raja Fayyaz Ahmed and Ch. Ijaz Ahmed, JJ
PAKISTAN TELECOMMUNICATION COMPANY LIMITED through General Manager and another
Versus
MUHAMMAD ZAHID and 29 others
Civil Appeal No.351 of 2005, decided on 22nd June, 2009.
(On appeal from the judgment, dated 28-4-2004 of the Lahore High Court, Rawalpindi Bench, Rawalpindi, passed in I.C.A. No.164 of 2002).
(a) Pakistan Telecommunication (Re-organization) Act (XVII of 1996)---
----S. 34---Constitution of Pakistan (1973), Art.185(3)---Leave to appeal was granted by Supreme Court inter alia to examine as to whether respondents were employees of the Pakistan Telecommunication Company Limited or Telecom Foundation; if so to what effect.
(b) Pakistan Telecommunication Corporation Act (XVIII of 1991)---
----Preamble---Pakistan Telecommunication (Reorganization) Act (XVII of 1996), Preamble---Scope application and analysis of certain provisions of both the statutes stated.
(c) Constitution of Pakistan (1973)---
----Art. 199(5)---Jurisdiction of High Court---Scope---"person" as used in Art.199(5) of the Constitution with reference to the scope of extraordinary jurisdiction of High Court stated.
Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Takht Bhai and 10 others PLD 1975 SC 244 ref.
(d) Pakistan Telecommunication Corporation Act (XVIII of 1991)---
----Preamble---Pakistan Telecommunication (Reorganization) Act (XVII of 1996), Preamble---Constitution of Pakistan (1973), Arts.199, 2-A, 4 & 25---Constitutional jurisdiction of High Court---Scope---"Person" as mentioned in Art.199(5) of the Constitution---Connotation---Employees of erstwhile Telegraph and Telephone Department transferred to the Corporation under the relevant provisions of the Pakistan Telecommunication Corporation Act, 1991 and later on succeeded by the PTCL, discharging their functions and duties in the International Gateway Exchange as operators had been inducted permanently or regularized subsequently under the rules necessarily relate to one of the "affairs of the Federation" within the purview of provisions of Art.199 of the Constitution---Similar duties and functions in the International Gateway Exchange being discharged by the employees as operators could not be distinguished and said that the same did not relate to the "affairs of the Federation" though conferred upon the Corporation and finally upon the PTCL---Subject which pertained to one of the important "affairs of the Federation" discharged now through PTCL essentially fell within the context of "person" as defined in Art.199(5) of the Constitution, therefore, employees were amenable to the constitutional jurisdiction of the High Court---Case of the employees/respondents was that they were employed on daily wages and not regularized despite having rendered service for period of more than 2 years as contract employees renewed from time to time; that they were being discriminated as against the other operators performing service permanently with the PTCL or having been regularized in due course as operators in the International Gateway Exchange performing similar functions in Exchange amounted to having been grossly violated as against the guaranteed rights under Arts.2-A, 4 & 25 of the Constitution by depriving them of their emoluments besides all other service benefits being paid to other operators performing service in the said Exchange and similarly placed---High Court judgment that such-like employees were for all purposes regular employees and to be dealt with as such was unexceptionable irrespective of the status of the employees which might be that of a "worker" or a "civil servant" or the "contract employees" having no nexus to the maintainability of the constitutional petition on the ground of discrimination meted out to them---Principles.
Muhammad Manwar Mumtaz v. Pak Arab Refinery Limited, (PARCO) through Managing Director Corporate Headquarters Korangi, Karachi and 6 others 2009 PLC 13; Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence, Government of Pakistan and others PLD 2006 SC 602; Messrs Soofi Textile and Printing Mills Ltd., Karachi v. Abdul Aziz 1975 PLC 260; Taj Din and 44 others v. Punjab Labour Court No.3 Lyallpur and another PLD 1976 Lah. 1169; Masood Ahmed and 24 others v. Pakistan International Airlines Corporation and 2 others 2001 PLC (C.S.) 41; Raza Muhammad alias Rajib Ali and another v. The State 2001 YLR 1743; Nagina Bakery v. Sui Southern Gas Limited and 3 others PLC 2001 SC 760; Sindh Employees Social Security Institution v. Consolidated Sugar Mills Limited 1989 SCMR 888; Atchison College Lahore through Principal v. Muhammad Zubair and another PLD 2002 SC 326; Mst. Tahira Almas and another v. Islamic Republic of Pakistan through Secretary, Ministry of Interior, Islamabad and another PLD 2002 SC 830; Ikram Bari and 524 others v. National Bank of Pakistan through President and another 2005 SCMR 100; Muhammad Boota and 2 others v. National Construction Company and 2 others 1984 CLC 256 and Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Takht Bhai and 10 others PLD 1975 SC 244 ref.
S. Naeem Bokhari, Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Appellants.
Muhammad Akram Sheikh, Senior Advocate Supreme Court for Respondents Nos. l to 14.
Syed Iftikhar Hussain Gillani, Senior Advocate Supreme Court for Respondents Nos. 15 to 28.
Nemo for Respondent No.29.
Date of hearing: 27th April, 2009.
JUDGMENT
RAJA FAYYAZ AHMAD, J.---This Civil Appeal has been directed against the judgment dated 28-4-2004 passed by the Lahore High Court, Rawalpindi Bench, Rawalpindi whereby, I.C.A. No.164 of 2002 preferred by the appellants namely Pakistan Telecommunication Company Limited, General Manager, Overseas Telecommunication Regions, Pakistan Telecommunication Company Limited and Federation of Pakistan through Secretary Ministry of Science and Technology, Islamabad (now pro forma respondent) against the judgment dated 11-11-2002 passed by the learned Single Judge in Chambers of the Lahore High Court whereby Writ Petition No.1444 of 2001 was allowed in favour of respondents Nos.1 to 28 (contesting respondents) has been dismissed by the learned Division Bench.
2. The relevant facts of the case in brief are that respondents Nos.1 to 28 instituted Writ Petition.No.1444 of 2001 in the Lahore High Court, contending that the said respondents have been working as Telephone Operators in the International Gateway Exchange for a minimum period of more than 2 years with a maximum period of more than 8 years with the Pakistan Telecommunication Company Limited (hereinafter referred as `PTCL') established under section 34 of the Pakistan Telecommunication (Re-Organization) Act, 1996 and the International Gateway Exchange has been functioning under its control, thus all those employees working in the Exchange are not the employees of "Telecom Foundation" (respondent No.29) a Charitable Institution established under section 5 of the Charitable Endowments Act, 1890 vide Notification dated 27-11-1991 which has nothing to do with the International Gateway Exchange but the contesting respondents are being wrongly treated as employees of the above-said `Foundation' in order to deprive them of their legal rights. It was further the case of the said respondents that Telecommunication Corporation (predecessor of PTCL) had invited applications for appointment as Telephone Operators etc., through advertisement published in Daily Jang dated 8-12-1992 and eventually call letters were issued by the predecessor Corporation. As per their case setup in the writ petition was that the contesting respondents are working on daily wages since the date of their appointments. in the International Gateway Exchange, Islamabad they operated automatic and semi-automatic system of communication which connects the subscribers within the country and throughout the whole world but they are being only paid Rs.140. per day without any other benefits whatsoever despite of the fact that the similarly placed employees of the PTCL who were less qualified than the contesting respondents are being paid approximately Rs.10,867 and more per month in addition to all other service benefits, such as; medical facilities, leave, gratuity, pension and bonus etc., under the Labour Laws as interpreted, by this Court and the other superior Courts of the country. The said respondents, therefore, contended' to have become permanent/regular employees of the PTCL, after the completion of probationary period of 90 days "from the date of their appointments, thus, are entitled to the same emoluments and benefits as are being paid to the other -similarly placed employees of the PTCL, but they are not being treated as regular employees of the PTCL and are not being paid such emoluments etc., without any lawful Authority arbitrarily by the appellants inter alia on the grounds mentioned in the writ petition.
3. The appellants and respondent No.29 (Telecom Foundation) filed their respective written statements to the writ petition before the learned High Court. In the written statement filed by the appellants, it was contended that the above-said respondents are the employees of the respondent No.29 as there existed no privity of the contract with the appellants for being the contract employees of the `Telecom Foundation', therefore, the writ petition warranted dismissal. While responding to the case on merits, it was admitted that respondents are working as Telephone Operators in the Organization of the appellants as contract employees whose services have been provided by respondent No.29. So, it was contended that the said respondents are employees of the `Foundation' therefore, they cannot claim any service benefits from the appellants nor they-can be treated as employees of the appellants because their services were acquired under the contract, moreover; the grounds, as contained in the writ petition were also contested being distinguishable in view of the case-law referred to in the writ petition on which the same were based.
4. Respondent No.29 (Telecom Foundation), hereinafter referred to as `Foundation' took preliminary objections in the written statement to the writ petition reproduced hereinbelow:---
"(a) The writ petition is not maintainable under Article 212(2) of the Constitution of Islamic Republic of Pakistan.
(b) That the petitioner earlier filed Writ Petition No.983 of 2000 which was dismissed as withdrawn on 3-5-2001. The order of the Court is reproduced as follows:---
"3-5-2001. Mr. M. Ghani, Advocate with the petitioner. Learned counsel submits that the petitioner wants to withdraw this petition. The petitioner present in Court is identified by the learned counsel. This C.M. is allowed and main petition is dismissed as withdrawn.
It is respectfully submitted that no permission was sought and thus there is no order granting permission for filing the same in Court. Copy of the order is annexed as Annexure "A".
(c) That the relief claimed in both petitions namely Writ Petitions Nos.983 of 2000 and 1444 of 2001 is materially and substantially the same.
(d) That a number of temporary vacancies occur in the department, which are filled accordingly. The Telephone Department has started automation of all their systems as such fresh/new manual labour/workers are not needed. The department has offered these posts to the petitioners till the pendency of the work. The work when completed the temporary workers are laid off, as such the petitioners have no lien on the temporary posts, which these are not likely to continue.
(e) That the petitioner Muhammad Zahid is absent without permission as or intimation as such is not on contract with Telecom Foundation (M&T) from September, 2001, and cannot claim any relief as prayed.
(f) That the petitioners are estopped from their word and conduct as on the one hand they accept temporary employment on contract and on the other hand ask for regularization which was never assured.
(g) That the petitioners were engaged by respondent No.4 and they opted to serve as temporary employees with another organization i.e. PTCL, no assurance tan be offered by respondent No.4 for another organization."
On merits the case of the `Foundation' was that the services of the contesting respondents are regulated by the contract of which they have backed out. It was explained that the services in the Organization comprised of two categories i.e. the one of which permanent induction is made and such posts carry a number of facilities, whereas; the other category relates to the `contract employees'. It has further been explained in the written statement that the process of automation has drastically reduced the requirements of the permanent posts which have accordingly been retrieved and thus, the appellants are forced to employ individuals on temporary basis while 100% automation is likely to take place in near future which may result in laying off the employees even inducted permanently, therefore, the employees working on temporary basis cannot claim to be inducted as permanent employees whereas; the PTCL has already declared this cadre as redundant. The grounds taken in the writ petition were stated to be distinguishable and denied accordingly.
5. Leave to appeal was granted by this Court on 29-4-2005 inter alia to examine as to whether the respondents are employees of the Pakistan Telecommunication company Limited or Telecom Foundation? If so to what effect?
6. The learned Single Judge in Chambers of the Lahore High Court allowed the writ petition in the following terms vide judgment, dated 11-11-2002 as contained in paragraph No.6 of the judgment which reads as under:---
"(6) For all that has been discussed above, the writ petition is allowed and petitioners are declared to be employees of respondent No.2 in terms prayed for respondent No.2 shall however, work out the salary and allowances payable to the petitioners in accordance with law preferably within 6 weeks of this order."
7. For convenience, operating part of the abovesaid judgment is reproduced hereinbelow:---
"(4) I have gone through the file of the writ petition. There is no denial that the petitioners are doing work of permanent nature for the last several years and certainly exceeding 9 months. It is true that respondent No.4 claims to be supplier/contractor who had supplied the petitioners for work of respondent No.2 but I do agree with the learned counsel for the petitioners that the workmen may be employed directly or through a contractor and notwithstanding the intervention of supplier (in the present case in the form of respondent No.4). The workmen remains employees of establishment. Apart from the said case of PIA being relied upon by the learned counsel for the petitioners, this Court has in several cases of PTCL held that such like employees are for all purposes regular employees and to be dealt with as such.
(5) So far as the said objection to the jurisdiction of the Court is concerned, in the first instance the question involved in this case is not at all covered by section 4 of the Service Tribunals Act or for that matter by section 6 thereof. In the second instance all the petitioners were employed of the incorporation of respondent No.2 and as held in the case of G.M. Optical Fibre System Telecom Co. Ltd. v. Abdul Rashid Khan, Member NIRC 2000 PLC (C.S.) 180'are not civil servants."
8. The appellants and pro forma respondent No.30, Federation of Pakistan through Secretary Ministry of Science and Technology, Islamabad feeling aggrieved of the above-said judgment of the learned Single Judge of the High Court filed I.C.A. No.164 of 2002, which was dismissed vide judgment dated 28-4-2004 impugned herein by maintaining the judgment of the learned Single Judge. The relevant part of the judgment passed in I.C.A. reads as under:---
"(6) According to the record and the submission of the parties a contract was entered into between the Telecommunication and PTCL on 29-11-1992. It was in pursuance of this agreement that Telecommunication Foundation entered into contracts with the employees on 16-3-1995. Respondents Nos.1 to 28 were placed at the disposal of PTCL where, they worked upon the International Gateway Exchange which is primarily the functions of the PTCL. We are of the firm view that respondents Nos.1 to 28 were employees of PTCL; they were employed to perform the functions of PTCL on the International Gateway Exchange. It is trite law that whether employees are engaged directly or through a Contractor, they would be deemed the employees of the Establishment for whose benefit they perform functions. Obviously, the Telecom Foundation has no concern with the functioning of the International Gateway Exchange which is primarily function of PTCL. There is no force in the submission of the learned counsel for the appellant that as the matter relates to the terms and conditions of service. This Court had no jurisdiction to entertain or accept the writ petition. The subject matter before the learned Judge in Chamber as is before this Court in appeal is whether or not the petitioners are employees of PTCL. The bar contained in Article 212 of Constitution of Islamic Republic of Pakistan, 1973 is not applicable. There is no force in this appeal which is hereby dismissed."
9. The learned Advocate Supreme Court for the appellants and Messrs Syed Iftikhar Hussain Gillani, Sr. Advocate Supreme Court for respondents Nos.15 to 25 and Muhammad Akram Sheikh, Sr. Advocate Supreme Court for the other private respondents have been heard at length.
The learned counsel for the appellants argued that PTCL was incorporated in the year, 1995 under the Companies Ordinance, 1984 and its Board of Directors have been elected by its shareholders and later on in pursuance of a settlement, the Federal Government had approved the scheme for the administration of an amount of Rs.5,00,000 to be supplied to the Trust for charitable purposes namely; for the welfare of serving and retired employees of Pakistan Telecommunication Company Limited, Pakistan Telecommunication Corporation, Pakistan Telecommunication Authority and National Telecommunication Corporation, Frequency Allocation Board (FAB) and other subsidiaries known as Telecom Foundation and thereafter, PTCL entered into agreement with them Telecom Foundation/respondent No.29 in relation to its requirements of manpower and thus the Foundation itself employed persons including the private respondents and were deputed to the PTCL in the discharge of its contractual obligations with whom the PTCL has no privity of contract. According to the learned counsel, admittedly, the contesting respondents-were employed by respondent No.29 who is their `employer' within the meaning of section 2(x)(f) of the Industrial Relations Ordinance, 2002 and similarly they fall within the definition of `workman' as defined in section 2(i) of the said Ordinance, whereas; respondent No.29 is an Industrial Establishment as well as; under the repealed law i.e. Industrial Relations Ordinance, 1969. According to the learned counsel, the contesting respondents fall within the definition of `workman'. Hence; the agitated grievance and relief claimed in the writ petition, was not amenable to the writ jurisdiction of the High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. He also strenuously argued that wages were being paid to the contesting respondents since their induction for discharging the duties with the Pakistan Telecommunication Company by the Telecom Foundation/respondent No.29. Further, the learned counsel in view of the pleadings of the parties contended that the question involved in the case relates to factual controversy between the parties, requiring recording of evidence hence; in view of disputed questions of facts without prejudice to his contentions, the same could not have been adjudicated upon or set at rest by the learned High Court in exercise of the writ jurisdiction. In support of this argument, reliance has been placed on the .judgment in the case of Muhammad Manwar Mumtaz v. Pak Arab Refinery Limited, (PARCO) through its Managing Director Corporate Headquarters Korangi, Karachi and 6 others 2009 PLC 13. According to the learned' counsel, the given definitions of the word `employer' includes `establishment of a contractor' and the contesting respondents fall within the definition of `workman' and `worker' as defined in section 2(x)(f) of Industrial Relations Ordinance, 2002 engaged for particular work being contractual in nature or through a `contractor', during the course of submissions he also made reference to Pakistan Telecommunication Company Regulations, 1996 relating to the terms and conditions of the service of the employees of the Pakistan Telecommunication Company and Notification dated 27-11-1991 regarding the establishment of "Telecom Foundation" issued in exercise of the powers conferred by subsection (1) of section 5 of the Charitable Endowments Act, 1890 (Act VI of 1890) by virtue of which according to the learned counsel, the Board ,constituted thereunder can enter into contracts, etc. under the sub-clause (ii) of clause (5) of the scheme and sub-clause (d) of clause (A) of paragraph 4 of the agreement for hiring of manpower for operation of International automatic and semi-automatic system service by the International Gateway Exchange, Islamabad dated 29-11-1992 executed between Pakistan Telecommunication Company and Telecom Foundation/respondent No.29 through its General Manager. He further pointed out that the impugned judgment was passed prior to the case of Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence, Government of Pakistan and others PLD 2006 SC 602 decided by this Court. He further stated that no relief against the Federation of Pakistan was claimed in writ petition but was pleaded as one of the respondents in the proceedings, as well as; reference was also made to para.No.4 of the judgment passed in writ petition by the learned Single Judge in Chambers relating to the tenure of the contesting respondents for which they had been discharging the duties with PTCL being not correct and vague. Hence; the relief claimed could not have been granted, besides the learned counsel submitted that the impugned judgment having been based on wrong assumption of certain facts treating the contesting respondents, as the employees of the PTCL by observing that they shall be deemed to be the employees of the establishment for whose benefit they have been performing the functions. It was vehemently contended that sweeping unsustainable conclusions were drawn in the impugned judgment and the one passed in writ petition by the learned Single Judge of the High Court. Reliance has been placed in support of the contentions on the reported judgments i.e. (1) Messrs Soofi Textile and Printing Mills Ltd., Karachi v. Abdul Aziz 1975 PLC 260, .(2) Taj Din and 44 others v. Punjab Labour Court No.3 Lyallpur and another PLD 1976 Lah. 1169. (3) Masood Ahmed and 24 others v. Pakistan International Airlines Corporation and 2 others 2001 PLC (C.S.) 41, (4) Raza Muhammad alias Rajib Ali and another v. The State 2001 YLR 1743, and (5) Nagina Bakery v. Sui Southern Gas Limited and 3 others PLC 2001 SC 760.
10. Mr. Muhammad Akram Sheikh, learned counsel for the private, respondents Nos. 1 to 14 by controverting the contentions put forth on behalf of the appellants contended that the concise statement of the appellants does not refer to the agreement authorizing, persons to be hired by the contractor to serve in PTCL and that it was not within the mandate of the Foundation even to go beyond its conferred scope of powers and extent, to execute an agreement with the PTCL to provide manpower fox the purpose nor on any stretch, the private respondents, who have been discharging their functions and duties in the International Gateway Exchange for the last 17 years, could be treated differently to the employees similarly placed in the said International Gateway Exchange who undertake and discharge similar functions, which fact according to the learned counsel remained undisputed. Hence; in view of the given undisputed facts, exercise of jurisdiction by the learned High Court was unexceptionable for being amenable to its writ jurisdiction under Article 199 of the Constitution. The learned, counsel also during submissions referred to certain parts of the pleadings of the parties and it was strenuously contended that writ petition did not relate to the enforcement of the terms and conditions of service by the private respondents. As regards, the composition of the Board of…
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