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Petitioner: Muhammad Khalil VS Respondent: Pakistan Telecommunication Limited & another
Court Name: Sindh High Court Judge(s): Zulfiqar Ahmad Khan Title: Muhammad Khalil vs Pakistan Telecommunication Limited & another Case No.: Suit No.1066 of 2010 Date of Judgment:2022-07-20 Reported As: 2022 SHC 328 Result: N/A
JUDGMENT
JUDGMENT Zulfiqar Ahmad Khan, J. Plaintif f seeks declaration, permanent injunction and damages through this suit. 2. Brief facts of the case as derived from the plaint are that the plaintif f was initially appointed as peon (BS-1) in the defunct Telephone & Telegraph Department, thereafter , he was promoted as LDC and with the passage of time and upon having completed prescribed training, he was appointed/promoted as Teleph one Technician. It is pointed out in the body of the plaint that upon the promulgation of Pakistan Telecommunication Corporation Act, 1991 ("Act of 1991") the defunct Telephone & Telegraph Department gotten converted into a "Corporation" and under Section 9 of the said Act, employees were transferred into the said Corporation. It is further stated in the plaint that upon promulgation of Pakistan Telecommunication (Reorganization) Act, 1996 ("Act of 1996") , the employees merged into the defendant entity where the plaintif f was promoted as Engineer Supervisor Phones vide order dated 28.12.2002. It is stated by the plaintif f that he was issued a charge sheet dated 02.06.2009 in violation of Act of 1996 which was answered by him, thereafter , a questionnaire was also provided to him and reply of the plaintif f was also obtained on the said questionnaire. The Inquiry Committee submitted its report alleging that the charges leveled against the plaintif f were partially proved while charge Nos. 3 & 4 were not proved against the plaintif f, whereafter another show cause notice dated 31.12.2009 was issued to the plaintif f which was also replied by him and having been provided with an abrupt long-distanced right of personal hearing, the plaintif f was removed from the service on 19.05.2010. Plaintif f further alleged in the plaint that since he was unlawfully removed, therefore, he was entitled to be reinstated in service with back benefits as well as claimed damages while making the following prayers:- "1). That this Hon'ble Court would be pleased to declare that impugned order of removal from service dated 19.05.2010 is void ab initio and quash the same and reinstate the plaintif f in service with full back benefits.
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2). That in alternate this Hon'ble Court would be pleased to grant decree of damages in favour of plaintif f to the tune of Rs.15,339,787/- (Rupees One Crore Fifty-three Lac Thirty-nine Thousan d Seven Hundred and Eighty- seven only) and Defendants be directed to pay the same on the usual bank rate interest from the date of filing of the suit till the actual amount is paid to the plaintif f . 3). That this Hon'ble Court would be pleased to grant permanent injunction against the Defendants restraining them to implement the impugned order from removal from serviced dated 19.05.2 010 through themselves, their subordinates, their attorneys, their assignees or any other person claiming throug h them and suspend the same and pas the decree to that ef fect. 4). Cost of suit be borne by the Defendants. 3. Contrariwise, the Defendants contested the matter and filed their written statement. Defendants in operating part of the written statement raised objections that the suit was not maintainable on the ground that the relief sought pertained to terms and conditions of service being barred by Section 21 of Specific Relief Act, 1877. It is stated that the Defendant company exists under the Companies Ordinance, 1984 and there are no statutory rules governing the employment in respect of its employees and in the absence of any such statutory rules/regulations, the common law of master and servant under the law of contract is applicable, therefore, no declaratory relief is permitted. The defendants further claimed that plaintif f was guilty of misconduct and corruption, thereafter , was fired from the service following the principle of natural justice, having undertaken proper departmental inquiry . It was prayed that suit be dismissed with costs. 4. The record shows that on 02.12.2015, issues were framed and with mutual consent of the parties, Mr. Kabeeruddin, Advocate was appointed as Commissioner for the recording of evidence. The issues settled by this court are:- "1. Whether the plaintif f was to be govern ed by the Civil Servants (Efficiency and Discipline Rules), 1973 applicable to the civil servants of the Federation of Pakistan Telecommunication Corporation Services Regulations, 1996? 2. Whether the service of the plaintif f was governed by statutory rules or non statutory rues? 3. Whether terms and conditions of service of the plaintif f can be changed to his disadvantage by the defendant No.1 under the law as plaintif f was originally the employee of Telephone and Telegraph Department? 4. Whether the procedure provided under Pakistan Telecommunication Corporation Service Regulations, 1996 was followed by the Defendants? 5. Whether the plaintif f was given fair opportunity to defend the charges during enquiry proceedings and whether the principles of natural justice were followed by the Defendants 6. Whether the plaintif f was malafidely and unlawfully removed from service, if yes, whether the plaintif f is entitled to the remedy of reinstatement with full benefits or to the remedy of damages, if any 7. What should the decree be?" 5. Mr. M.M. Aqil Awan, learned Senior Counsel for the plaintif f traced the legislative history in terms of which PTCL came into being as an incorporated entity and how the plaintif f ended up becoming an employee thereof. He submitted that originally plaintif f was an employee of the erstwhile T&T (Telephon e and Telegraph) Department of the Government of Pakistan. Thus, he had been civil servant since inception and he was governed by the terms and conditions of service which were very statutory in nature. With the creation of the Pakistan Telecommunication Corporation ("PTC"), a statutory body created by the Pakistan Telecommunication Corporation Act, 1991 ("1991 Act"), the plaintif f stood transposted to PTC but on the same terms and conditions as before. Most relevantly for present purposes, according to learned counsel, this meant that the plaintif f's terms and conditions of service continued to be governed by the statutory rules, i.e., those having originally regulated his affairs when he was an employee of the T&T Department. Per learned counsel, the 1991 Act was repealed by the Pakistan Telecommunication (Re-organization) Act, 1996 ("the 1996 Act"). Per learned counsel the said statute was in fact preceded by two successive Ordinances, one promulgated in 1995 and the other in 1996, which were substantially the same in all material respects. Section 34 of the 1996 Act made provision for the incorporation of PTCL as a company registered under the Companies Ordinance, 1984. Upon its incorporatio n, employees of PTC including the plaintif f stood transferred to PTCL. However , the plaintif f being a T&T employee continued to be governed by
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the same terms and conditions as before. Thus, notwithstanding the plaintif f's journey from a government department to a company incorporated under the Companies Ordinance by way of a statutory corporation, his terms and conditions of service continued to be statutory in nature. In support of the foregoing submissions, learned counsel relied on Abdul Rahim v. Pakistan Broadcasting Corporation (1992 SCMR 1213 ), Pakistan Telecommunication Corporation v. Riaz Ahmed (PLD 1996 SC 222) and Divisional Engineer Phones v. Muhammad Shahid (1999 SCMR 1526 ). However , the greatest reliance by far was placed on the case of Masood Ahmed Bhatti and others v . Federation of Pakistan and others ( 2012 SCMR 152 ). 6. Learned counsel for the plaintif f formulated his submissions under two broad headings. Firstly , he contended that the applicable rules and regulations, being statutory in nature, had not been applied to the plaintif f, since he had been proceeded against under the 1996 Regulations, which were admittedly framed by PTCL itself for its own internal purposes and other set of employees (which did not come from T&T) were inapplicable to the plaintif f. Since the plaintif f was governed by statutory rules, his case stood on a materially different pedestal as compared to those employees who were governed by non-statutory terms of service. Secondly , he submitted (without prejudice to the first submission) that even the 1996 Regulations had not been properly applied, and the procedure laid therein had not been followed. There were material defects in the proceedings and as a result the entire exercise stood vitiated, he emphasized. 7. As regards his main case, that the rules applicable to the plaintif f were statutory in nature, learned counsel, principally relied on the case of Masood Bhatti case supra and submitted that the employees of PTCL could be divided into three categories. The first comprised of those employees whose careers had originated in the T&T Department and who were posted to PTCL in the aforementioned manner . The second category comprised of those employees who had been recruited or employed by PTC and had then been transferred to PTCL. Learned counsel pressed that in Masood Bhatti case reliance was placed by PTCL on the case of Ejaz Ali Bughti v. PTCL (2011 SCMR 333) to assist this Court that the relevant and applicable rules were non-statutory , but it was expounded by the Hon'ble Supreme Court that this finding was only based on a concession, which could not be regarded as determinative of the issue. Learned counsel for the plaintif f submitted that it was clear from the principles enunciated in the Masood Bhatti (supra) case that the employees who came in either of the first two categories, were governed by the statutory rules and regulations, and therefore their service matters could not be regulated by the non-statutory 1996 Regulations . In this context, learned counsel pointed out that the 1996 Act pursuant to which PTCL came into being did not confer any rule making powers to the latter and at the same time did not rescinded earlier rights, thus, his primary objection was that wrong provisions had been applied to the plaintif f and hence the entire exercise against him was a nullity in the eye of law. Furthermore, (and his second limb of the arguments) he stated that even if the proceedings against the plaintif f could be regarded as valid (e.g. for academic purposes), any violation of the applicable rules or regulations could be set aside by the Court and a declaration can also be made for his reinstatement as in the case of statutor y rules of service, it was well established principle that a violation of same could be remedied by way of such relief. Learned counsel referred to a few cases in support of his submissions too. 8. Without prejudice to his foregoing primary submission with regard to the 1996 Regulations, learned counsel submitted that even if the 1996 Regulations were to apply , there had been material breaches thereof. He submitted that the principles of natural justice had been grossly violated in the exercises unde rtaken by the defendants. In this context, he submitted that the inquiry committee, whose report formed basis for the impugned action, was not constituted as per law nor was it stood as an independent body as its members were individuals who were employed on contract basis and thus, for obvious reasons, beholden to PTCL. No compelling evidence was produced against the plaintif f nor has he was given an opportunity to rebut or confront the same. Although Karachi was the place of occurrence of the alleged culpable acts or conduct, the enquiry itself was held in Islamabad and that also, over the course of only a single day only. A perusal of the report(s) produced by the committee showed that the burden of proving innocence had been placed on the plaintif f rather than, as the law required, on PTCL to establish plaintif f's guilt. Thus, the procee dings even under the 1996 Regulations were even grossly mistaken and
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liable to be set aside. Learned counsel submitted that the entire exercise was mala fide in nature, and the equities lay clearly in favour of the plaintif f. 9. Conversely , Mr. Faisal Mahmood Ghani, learned counsel for the defendants contended that the requirements of law and the 1996 Regulations had been strictly adhered to. Proper show cause notice was issued, the particulars of the culpable acts/misconduct were conveyed in full and an opportunity of hearing was granted. The inquiry committee comprised of at least one person who was senior in the rank to the plaintif f concerned and other members were either senior or equal in rank. It was denied that any members of the committee were junior to the plaintif f. Since the entire case against the plaintif f was documentary in nature, no witness was required and hence none was produced. The plaintif f however , was confronted with the documents that formed the basis of the impugned action. Plaintif f was fully aware of the nature of the case against him, to which he had made detailed replies. Learned counsel pointed out that the plaintif f had not produced any witness for himself. Referring to the record, learned counsel contended that the principles of natural justice had been fully adhered to, resultantly the case against plaintif f stood established and therefore the appropriate action (i.e., termination from service) was justifiably , warranted and fully in accordance with law. Learned counsel further contended that the Court could not substitute its own judgment for that of the appropriate tribunal or authority insofar as the merits of the case were concerned, all that it could examine was the procedural aspect, in order to satisfy itself that the requirements of law in this regard had been complied with. Since that, according to learned counsel, was the situation in the cases at hand, no interference was warranted with the decision or impugned action itself. 10. According to learned counsel, the 1996 Regulations were fully applicable on their own terms and contended that those have been properly adhered to. In this context, learned counsel submitted that in any case all that was required was a substantial compliance of the procedural requirements, which had been faithfully applied. It was also submitted that even if the plaintif f was regulated by any statutory rules or regulations those were in all material respects the same as the 1996 Regulations provided and hence the plaintif f had not been prejudiced in any manner . Learned counsel further contended that the plaintif f had in fact availed many benefits under the 1996 Regulations, such as salaries, postings, etc. and hence the plaintif f could not be allowed to approbate and reprobate. 11. Heard the arguments and considered the evidence. In my considerate view, Issues 1 to 6 are inextricably linked and largely questions of law based upon little evidence of the plaintif f and defendants, therefore, it would be advantageous to discuss those simultaneously , in one go. Issue No.1 germane to applicability of rules for initiation of proceedings against the plaintif f who happens to be employee of defendant company under Civil Servants (Efficiency and Discipline Rules), 1973 or Telecommunication Corporation Service Regulations, 1996. A learned Division Bench of this Court in the case of Shakeel Ahmed v. PTCL reported as 2017 PLC (C.S) Note. 76 has already dealt with this issue and in the deliberation of the said case, the dictum laid down in the case of Masood Ahmed Bhatti (2012 SCMR 152) was also taken into consideration. It would be thus advantageous to reproduce the relevant excerpt to reach to a right conclusion of the issue under discussion which is delineated hereunder:- "....8. But there is dispute in this Petition, as to the issue that whether the disciplinary proceedings against the Petitioner were to be held under PTCL Service Regulations, 1996 or under Government Servant (E&D) Rules, 1973. This question has been dealt with and resolved by the Apex Court in the case of Masood Ahmed Bhatti (supra), against which Civil Review Petitions Nos. 247-249/201 1, have also been dismissed by the Apex Court vide unreported Judgment dated 19.02.2016, and as such it is settled issue that the Petitioner being employee of PTCL, is to be dealt under Government Servant (E&D) Rules, 1973, and the case of Masood Ahmed Bhatti (supra) has been referred to by the Apex Court in their un-reported Judgment dated 23.8.2013, in Civil Petitions Nos.717 and 718 of 2013 (The President, PTCL v. Faiz-ur-Rehman), in which the Civil Review Petitions Nos.253-254/2013, have also been dismissed by the Apex Court vide unreported Order dated 06.12.2013. As such in view of the said announcements of the Apex Court the disciplinary proceedings against the petitioner was to be initiated and proceeded under Government Servant (EELD) Rules, 1973, and not under PTCL Service Regulations, 1996. Per learned Counsel for Respondent the provisions of said two Rules are one and the same, so no prejudice has been cause d, this contention of learned Counsel has no legal force as in view of
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the said pronouncements of the Apex Court in the cases of PTCL employees and reliance of learned Counsel for Respondent in support of his contentio n on the case of Iqbal Nasir (supra), decided on 23.12.2010, is not applicable to the case of Respondent, as when the Impugned Letter dated 22.5.2012, was passed, the case of Masood Ahmed Bhatti (supra), decided on 07.10.201 1, was in field. 9. Since the Government of Pakistan has still got the Shares of the PTCL/Respondent No.1, and terms and conditions of the transfer employees including Petitioner , having been protected statutorily , as stated above, for which the Government Servants (Efficiency and Disciplinary) Rules, 1973, having been made applicable by the Apex Court and not the PTCL Service Rules, 1996, so the contention regarding the provisions of said two Rules being pari materia the same, would have no legal effects particularly in view of the settle principle of Administration of Justice that thing as required to be done can be done in that very manner , otherwise the same would have no legal effect and for which reliance is placed on the case of Muhammad Anwar v. Ilyas Begum (PLD 2013 SC 255) wherein the Apex Court has held that: "....It is a well-known principle of law that where the law requires an act to be done in a particular manner it has to be done in that manner alone and such dictate of law cannot be termed as a technicality ." In the case of Muhammad Mustafa v . Azfar Ali, PLD 2014 Sindh 224 (D.B), it has been observed: "that where things have not been done in the manner , as required by the law and procedure, the same cannot be given legal sanctity particularly when the same are resulting in penal consequences or causing rights of an individual,..." 10. Moreover , Abdul Hakeem Ghunio, one of the delinquent official, who was removed from service after inquiry under PTCL Service Regulations, 1996, had filed Writ Petition No.3946/2012, in the Islamabad High Court, which was allowed vide Judgment dated 13.01.2015, whereby the removal from service was set aside, on the basis that PTCL was required to adhere to the protected terms and conditions of service and the Disciplinary Proceedings under PTCL Service Regulations 1996, was without proper authority , which clearly violate the legislative intent and that the Official was re-instated. 11. As such in view of above, we are of the firm view that terms and conditions of service of the Petitioner have been statutorily protected, coupled with the pronouncements in the cases of Masood Ahmed Bhatti and Faiz-ur-Rehman (supra), the Respondent/PTCL was to adhere to the same, so the disciplinary proceedings were to be initiated under Government Servants (E&D) Rules, 1973, whereas the Respondent/PTCL, carried disciplinary proceedings against Petitioner under PTCL Service Regulations, 1996, which is of no legal effect and violates the legislative intent and in such situation Petition in High Court is entertainable and relief can be granted. 12. In view of the above, the impugned compulsory retirement of the Petitioner by the PTCL/ Respondent through impugned Letter dated 22.5.2012, is set aside and the Petitioner is reinstated in the service. However , the Respondents Nos.1 to 4, may conduct inquiry afresh in accordance with Government Servants (E&D) Rules, 1973, within three months. The payment of back benefits shall be subject to the final outcome of inquiry proceedings and report. This petition along with listed Application is disposed of f accordingly......." [Emphasis added] 12. What I perceived from the dictum laid down in the Masood Bhatti case as well as verdict of the learned Division Bench of this Court mentioned in the preceding paragraphs is that the disciplinary proceedings against the plaintif f were to be initiated and proceeded under Government Servant (E&D) Rules, 1973, and not under the PTCL Service Regulations, 1996. Furthermore, it is a well settled principle of law that where the law required an act to be done in a particular manner , it had to be done in that manner alone and such dictate of law cannot be termed as a technicality or mere formality , and where things have not been done in the manner , as required by the law and procedure, the same cannot be given legal sanctity particularly when the same are resulting in penal consequences or causing irreparable injury to an individual. Therefore, the issue relating to the applicability of E&D Rules for initiation of disciplinary proceedings is answered accordingly . So far as the remaining issues are concerned, since the learned counsel for the plaintif f sought to eschew the grounds / prayer of reinstatement in
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service with back benefits alone and sought the Court's deliberation exclusively upon the question of damages, therefore, the issues under discussion are answered as redundant except the issue of payment of damages. 13. After having come to the conclusion that the Plaintif f's termination was illegal and unlawful, the plaintif f definitely is needed to be compensated and he is unquestionably entitled for the award of damages. Damages are always divided into two categories. First being Special damages, which are to be specifically pleaded and proved, which are what the plaintif f has claimed regarding loss of earning and out of pocket expenses and such damages are generally capable of exact calculation. Second kind of damages are general damages which in law are implied upon happening of certain event and so also in case of a favorable decision for a party . These may not be specifically pleaded and may or may not be capable of exact proof strictly . It may be observed that insofar as claim and award of general damages is concerned, though it may not have been specifically pleaded and proved, but any shortcoming or deficiency in the plaint or in the evidence will not come in the way of the Court to grant any such damages once the plaintif f is entitled for such a relief. It cannot be said that plaintif f must not have sustained injury and suffered any economic loss on account of his wrongful dismissal from the service. In the given facts, I am of the view that though the plaintif f has not been able to prove his claim of special damages specifically , but is found to be entitled to claim damages on account of agony , physical stress, loss of reputation as well as social persecution which cannot be corrected through monetary compensation but at least he is entitled for such compensation, and it cannot be said that since this is not going to restore his position as it should have been, if he had not been dismissed, he is not entitled at all for any compensation in the form of damages. The Hon'ble Supreme Court in the case of Abdul Majeed Khan v. Tawseen Abdul Haleem and others [2012 PLC (C.S.) 574], after a detailed examination of various local and international case law, in the additional note of the then Chief Justice (Iftikhar Muhammad Chaudhry . J.), has been pleased to observe as follows:- "....3. At this stage, it is to be noted that there are two types of damages namely; 'special damages' and 'general damages'. The term 'general damages' refers to the special character , condition or circumstances which accrue from the immediate, direct and approximate result of the wrong complained of. Similarly , the term `special damages' is defined as the actual but not necessarily the result of injury complained of. It follows as a natural and approximate consequence in a particular case, by reason of special circumstances or…
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