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Petitioner: Muhammad Arshad Malik VS Respondent: Pakistan International Airline Corporation JUDGMENT
Court Name: Sindh High Court Judge(s): Arshad Hussain Khan Title:Muhammad Arshad Malik vs Pakistan International Airline Corporation
JUDGMENT
Reported As: PLD 2021 Sindh 347 Result: N/A Judgment JUDGMENT ARSHAD HUSSAIN KHAN, J.---This suit was filed on 08.07.2008 against the Defendants for Declaration, Mandatory and Permanent Injunction with the following prayers:-- i) Declare that the letter dated 25.04.2008 is illegal, arbitrary , in derogation of and against the settled policies of the Pakistan International Airline Corporation through Chapter XII Rule (sic) 12.01.2004, its affiliated offices and the settled norms of natural justice. ii) Declare that the Plaintif f having served as a Pilot with the Defendant Corporation for a continuous period of fifteen (15) years and seven (07) months without any interruptions and/or grievances of whatsoever nature, due to efflux of time as much as operation of law is entitled to benefits which are permissible and paid to regular employees upon retirement. iii) Grant a Mandatory Injunction directing the Pakistan International Airline Corporation to treat the Plaintif f as a regular employee from the date of his first flight i.e. 15.03.1992 and to award all pensionary and retirement benefits to the Plaintif f, including but not limited to all financial emoluments guaranteed to a regular employee. iv) Grant a Permanent Injunction restrainin g the Defendants and/or any other person(s) acting under it, through it or in its behalf from affecting retirement on the Plaintif f without awarding him all pensionary and retirement benefits and privileges, including but not limited to all financial emoluments guaranteed to a regular employee. v) Any other , better , equitable and further relief that this Honourable Court may deem fit, proper and just given the circumstances of the case. vi) Cost of the suit may kindly be awarded. 2. Briefly stated the facts of the presen t case are that the plaintif f was inducte d in the services of Defendant Corporation on 09.12.1992 after having applied through a publication and comple ted his first flight on 15.03.1993
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and has since then been aptly serving Defendant Corporation to the utmost satisfaction of the management and without any intervals, breaks and or interruptions. It is further stated that under the policies and norms of procedure of Defendant Corporation, any person inducted through a contract is liable to be regularized in the services after completion of either three (03) and /or five (05) years of service, a procedure which is followed and applied without fail by various autonomous, semi-autonomous and government bodies. It is further stated that such practice has always been prevailed within the Corpora tion as is made apparent by the regularization of First Officers Obaid Jatoi and Shuja Ahmed bearing Nos. P-5492 8 and P-55596 respectively in the year 1996 and as such the above mentioned officers were also inducted through contracts. It is stated that the Plaintif f has also been serving uninterruptedly on the basis of a contract executed between the Plaintif f and Defendant Corporation against a permanent and vacant post existing within the ranks of Defendant Corporatio n, which was to be confirmed according to them. It is also stated that due to the proficiency , skills and competen ce of the Plaintif f, the Defendant Corporation has been extending the Plain tiff's services without any hindrances and/or conditions for the last fifteen (15) years and seven (7) months of its own accord and in this regard the last such extension was granted on 18.09.2006, vide a letter bearing Referen ce No.HRM/F0/ P-52376/06. Further the Defendant Corporation has all times promised the Plaintif f for regular ization against the office under which the Plaintif f has been serving Defendant Corporation but due to mala fide reasons, the Plaintif f has been denied the regularization of a legitimate expectation in continuance of a promise / assertions made by Defendant Corporation. It is further stated that Defendant Corporation seeking to retire the Plaintif f from its services on 10.07.2008, whereas it is a settled practice that no Corporation exercises the requisite discretion to retire an employee inducted on contract but can terminate the said contract on its expiry and/or for reasons of misconduct etc. It is also stated that the mala fides of Defendant Corporation are highlighted by the fact that in spite of being duly recommended by the concerned and competent authority on various occasions and while being constantly guaranteed regularization, Defendant Corporation has failed to perfo rm the needful and has kept the Plaintif f under false pretenses. It is stated that after having received a favourable and justified recommendation for regulariza tion from the concerned offices within Defendant Corporation, a legitimate expectation and right had accrued in favour of the Plaintif f and Defendant Corporation is at no point equipped with the discretion to overrule and/or discard a right that has substantively accrued to an employee against an extended period of service in Defendant Corporation and especially when such right is also supported by the rules and policies of Defendant Corporation itself. It is stated that the actions of Defendant Corporation are not only against the fundamental rights guaranteed to the Plaintif f but the same are also infringement on his substantive, promised vested rights; the malicious actions of Defendant Corporation are also in derogation of an illegal deviation, of the decision arrived at during the 265th and 274th meetings of the Board of Directors held on 16.09.2002 and 17.10.2003 respectively . It is further stated that the Defendant Corporation continued its absorption and regularization of all such Pilots and First Officers that had satisfactorily served it for a period of either three or five years and continued to deny the Plaintif f regularization in order to cause him devastation, damage and wrongful loss. It is further stated that the Plaintif f wrote a letter to Defendant Corporation to which a reply dated 25.04.2008 was received from the office of Defendant No.2, which is self-explanatory and a reflection of Defendant Corporation's ill intent and mala fides that have till date denied the Plaintif f's a legitimate expectation, vested right and promised privileges. That the Plaintif f has been striving for regularization since the year 1999 upon having completed five years of satisfactory service and having received recommendations and after being promised the same but has been discriminated by the Defendant Corporation and has seen innumerable candidates, both in the same cadre and junior to him acquiring regularized services. It is stated that the Plaintif f is due to retire on 10:07.2008 and seeks regularization in order to get benefit from the retirement and pensionary benefits including all financial emoluments and all other miscellaneous privileges promised to regular employees reaching the age of superannuation. It is further stated that the Plaintif f does not seek promotion and/or extension in services but is seeking to realize a substantive right and implementation of the policies and norms of procedure put forth by Defendant Corporation itself. 3. Upon notices of the present suit, the Defendants have filed their joint written statement in the matter denying the allegations sought dismissal of the suit. They have stated that as a matter of fact the Plaintif f was selected for
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appointment for DH-6 in Flight Operation Department of PIAC initially on three years contract w.e.f. 7.12.1992. The Plaintif f had duly signed the said agreement. The said contract of service was extendable depending upon operational requirement of DH-6 Aircraft and was not liable for absorption on permanent basis in PIAC. The said Aircraft DH-6 has never been part of career plan of the pilots in PIAC. Based upon requirement of PIAC, the contract of service of Plaintif f was extended from time to time until 31.12.2004. The Plaintif f was known that his contractual position could not be regulariz ed as notified to him at the time of execu tion of initial contract of service. It is further stated that Mr. Obaid Jatoi ex P-52378 and Shuja Ahmed ex P-54335 were appointed as First Officer and Captain DH-6 respectively on contract basis. Their contracts were expired on 6.12.1995 and 02.06.1996 respectively . They were re-employed against an external advertisement as Cadet Pilots with new P-Numbers i.e. 52928 and 55596 respectively , hence the adverse contents and allegations are denied. It is also stated that the service contract of the Plaintif f as Captain DH-6 was finally expired on 31.12.2004. Meanwhile, he was re- designated as cadet pilot on 5.09.2004, which was for all purposes deemed afresh appointment and he was not entitled to any benefit or advantage of his past contractual service as notified to him, vide letter dated 14.09.2004. It is stated that the employment contract of the Plaintif f as First Officer F-27 Aircraft was extended from time to time up till 10.07.2008. As per contract, of employment the Plaintif f's privilege leave [PL] could be accumulated subject to refusal in writing by the competent authority as such the Plaintif f was informed for accumulation of his privilege leave. It is further stated that allowing PL and permitting the Plaintif f to perform work during his accumulated leave period at his own request amounts to accepting the Plaintif f as a regularized employee by the Defendant Corporation as alleged is denied. It is further stated that the PIAC Service Rules and Regulations 1985, which are not statutory rules / regulations, were framed by the Board of Directors of PIAC. It has been further stated that the Plaintif f's case did not fall merit consideration for his permanent absorption into the service of the Defendant Corporation. Furthermore, no right of the Plaintif f is supported by the Rules and Policies of the Defendant Corporation as alleged and no right of the Plaintif f has been over ruled or discarded by the Defendant Corporation as alleged. It is also stated that the contract period of the Plaintif f with Defendant Corporation has already been expired on 10.07.2008, which was the date of his superannuation as well and as such he has been relieved from duty / service of PIAC with effect from 10.07.2008. It is further stated that vide letter dated 18.09.2006, the Plaintif f was informed by Defendant Corporation that his service contract period has been extended w.e.f. 5.09.2006 to 10.07.2008 i.e. the date of his superannuation on the same terms and conditions except a new clause contained in the said letter and the Plaintif f was also informed in the month of July, 2007, that his service contract will be expiring on 10.07.2008 as such he will stand released from service w.e.f. 10.07.2008. He was advised to avail 178 days privilege leave balance to his credit. The Plaintif f, however , has given the undertaking in writing that he voluntarily surrendered his accumulated privilege leave and he intended to continue flying duties during his LPR and he undertook that he will not claim any compensation for surrendered period of accumulated leave later on. It is further stated that the Defendant Corporation in its letter dated 16.01.2008, informed the Plaintif f that his request for performing work during LPR period without claim of encashment of accumulated leave has been accepted and he was allowed to perform duties during LPR w.e.f. 17.01.2008, and it has again been clarified / notified that he shall stand retired from service on 10.07.2008. It is further stated that after completing successful training and necessary technical formalities, the Plaintif f was re-designated as Flight Officer on ATR Aircraft, he had willingly opted this process as required by Defendant Corporation. It is stated that it is the right of PIAC Board of Directors to take decision in/the interest of Defendant Corporation. Moreover , the, position in question as pleaded by the Plaintif f had never been permanent and DH-6 Aircraft had already been disposed of and no pilot is deputed thereon. It is further stated that the Plaintif f had served on the contractual service willingly and eagerly otherwise he had always the option to leave / terminate the service agreement any time on the agreed terms and conditions. The request of the Plaintif f was duly considered, the confirmation of the Plaintif f, therefore, did not deem fit. No element of discrimination on the part of Defendant Corporation is there in the matter of the Plaintif f. The Plaintif f was allowed all the benefits for which he was entitled. It is denied that the Plaintif f is entitled to the benefits, which are, permissible and are paid to the regular employees
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upon their retirement and he is not entitle d to be treated as regular employee as alleged. Hence, the Plaintif f is not entitled for any relief(s) claimed as the suit has been filed with mala fide intention and ulterior motives just to extort the money from the. Defendant Corporation. It is also stated that no cause of action has been accrued to the Plaintif f for filing the above suit, which is not only time barred but the same is infructuous, therefore, the suit of the Plaintif f as framed is not maintainable in law and the same is liable to be dismissed. 4. On 05.03.2014 out of the pleadings of the parties, following issues have been settled by the Court:- 1. Whether the suit of the Plaintif f is maintainable? 2. Whether subsequent to a recommendation by the competent authority , can an employee serving the Defendant No.1 Corporation be denied the vested right(s) and legitimate expectation(s) against such recommendation? If so, what is the ef fect? 3. Whether the reasons stated in the impugned letter dated 25.04.2008 are in consonance with the policies, rules, regulations and decisions of the Board of Directors of Defendant No.1 Corporation? If not, what is the ef fect? 4. Whether Plaintiff being contract employee can claim right of regular employees? 5. Whether the contract employee can be treated regular employee only on the basis of length of service? 6. Whether Plaintif f is entitled for relief claimed? 7. What should the decree be? Then on the same day, i.e. 05.03.2014, by consent, commissioner was appointed for recording evidence in the matter , who after completing the commission submitted his report dated 17.02.2017 which is available on the record and thereafter the matter came up for final arguments, vide order dated 09.05.2017. 5. From the perusal of the commissioner's report, it appears that the Plaintif f in support of his stance examined himself as PW -1 and produced the following documents:- S.NOS. DESCRIPTIONS EXHIBITS 1 Affidavit in evidence 5/1 2 Notice under Order XII, Rule VIII, C.P .C. dated 15.10.2014 along with Courier Receipt and confirmation receiving5/2, 5/2/1/,5/2/2 2(sic) Copy of Identity Card issued by PIAC 5/3 3 Extension of Contract dated 18.09.2006 [OS & R] 5/4 4 Acceptance of Request during LPR by PIAC 5/5 5 Copy of Minute-2 dated 17.09.1997 5/6 Under objection 6 Copy of Minute-1 dated 9.9.1997 5/7 Under objection 7 Copy of Minute-1, for contract renewal dated 15.12.2000 5/8 Under objection 8 Certified copy of W rit Petition No.31 18/2001 5/9 9 Certified copy of order dated 17.1.2003 in W rit Petition 3118/20015/10 10 Photocopy of comments filed by PIAC in W rit Petition 3118/2001Article 5/1 11 Photocopy of conversion of contractual employment into regular dated 29.5.20085/11 12 Photocopy of correction in record regarding failure during training dated 25.4.2008.Article 5/2 Thereafter the Plaintif f was cross-examined by the counsel for the Defendant. 6. On the other hand, on behalf of the Defendant, one Tahir Mehmood, Sr. HR Officer, PIA, was examined as DW-1 on 11.2.2017 before the learned commissioner , who had produced the following documents:-- S.NOS. DESCRIPTIONS EXHIBITS 1 Affidavit in evidence 6/1 2 Photocopy of agreement dated 7.12.1992 6/2
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3 Copy of Renewal of Contract dated 2.1.2004 [OS & R] 6/3 4 Office copy of re-designation as Cadet Pilot dated 14.9.2004 [OS & R]6/4 5 Copy of Agreement dated 21.2.2005 [OS & R] 6/5 6 Copy of Extension of contract dated 18.9.2006 [OS & R]6/6 7 Copy of Expiry of contract [OS & R] 6/7 8 Letter dt 14.1.2008 [OS & R] [OS& R] 6/8 9 Copy of Undertaking dated 9.1.2008 [OS & R] 6/9 10 Copy of expiry of contract dated 9.1.2008 [OS & R] 6/10 11 Copy of request for performing work during LPR dated 16.1.2008 [OS & R]6/11 12 Copy of Resolution passed by PIA Board Article 6/2 Under objection 13 Original letter of authority dated 17.3.2016 6/12 The abovenamed witness of the Defendants was also cross-examined by the Plaintif f's counsel. 7. During the course of arguments, learned counsel for the Plaintif f while reiterating the contents of the Plaint has argued that the Plaintif f admittedly was inducted in PIAC's services as a contract employee after having applied through a publication and continued to serve PIAC for more than 15 years aptly to the utmost satisfaction of the Management and without any intervals and breaks. Learned counsel submits that under the policies and norms of procedures prevalent at PIAC, any person inducted through a contract is liable to be regularized in its services after completion of a specified period of service, a procedure which is followed and applied without fail by various autonomous, semi-autonomous and government bodies and such practice has always been prevailed within the PIAC. Learned counsel urged that the tenure of the Plaintif f with PIAC was on the basis of a contract executed against permanent and vacant posts existing within the Department and, therefo re, his appointment was to be confirmed accordingly . He has argued that due to a proficient display of skills and competence, PIAC continued to extend services of the Plaintif f without any hindrances and / or conditions for over fifteen years of its own accord and such extensions is the proof of the Plaintif f's professional skill. However , due to mala fide reason the Plaintif f has been denied regularization of a legitimate expectation in continuance of a promise made by the PIAC. Learned counsel urged that the PIAC has actually by its conduct treated and accepted the Plaintif f to be a regular employee within its cadre by various actions, including [but not limited to] assigning him leave prior to retirement and then subsequently seeking to retire him from services on 10.07.2008. Learned counsel further argued that issuance of leave prior to retirement, Plaintif f's subseq uent retirement from the services of PIAC and its written consent for the Plaintif f to continue in service / flying during the period of his leave prior to retirement, vide letter dated 16.01.2008 are confirmation and the accession of the fact that PIAC had accepted the Plaintif f as a regular employee. Learned counsel has argued that despite being duly recommended by the concerned and competent authority on various occasions, and while being constantly guaranteed regularization, PIAC has failed to give effect to the recommendation. The Plaintif f, after having received a favourable and justified recommendation for regularization from the concerned offices within the PIAC, a legitimate expectation and right had been accrued to the Plaintif f. Learned counsel further argued that the actions of the PIAC are malicious and in derogation of law against the rights of the Plaintif f. Besides it is also in deviation of the decision arrived at during 265th and 274 meetings of the Board of Directors held on 16.09.2002 and 17.10.2003, respectively . Finally , learned counsel has urged that the Plaintif f through instant suit seeking benefits concerning retirement and the consequent pensionary grants, including all financial emoluments and all other miscellaneous privilege promised to regular employees reaching the age of superannuation as well as seeking implementation of a substantive right and policies put forth by PIAC itself, as the policies and norms of procedure that cannot be deviated from so as to inadvertently deny a right to an
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employee under any given circumstances; thus the present suit may be decreed as prayed for. In support of his stance, learned counsel has relied upon the following case law:- Nabeela Ashfaq v . Federation of Pakistan through Secretary Defence and 3 others [2020 PLC (C.S.) 24 ] 8. On the other hand, learned counsel for the Defendant while reiterating the contents of the written statement and the affidavit in evidence of Tahir Mehmood, Sr. HR Officer of PIAC, filed on behal f of the Defendants, has argued that the Plaintif f was selected for appointment for DH-6 [Twin Otter Aircraft] in Flight Operation Department of PIAC initially on three years contract w.e.f. 7.12.1992, and in this regard, he signed the contract Agreement. It is also argued that the said contract was extendable depending upon operational requirement of DH-6 Aircraft and was not liable for absorption on permanent basis in Defendant PIAC and the said Aircraft DH-6 has never been part of career plan of the pilots in PIAC. He has submitted that upon requirement of Defendant PIAC, the contract of service of Plaintif f was extended from time to time until 31.12.2004, and it was known to the Plaintif f that his contractual position could not be regulariz ed as notified to him at the time of execu tion of initial contract of service. Learned counsel has submitted that the service contract of the Plaintif f as Captain DH-6 was finally expired on 31.12.2004 and meanwhile he was re-designated as cadet pilot on 05.09.2004, which was for all purposes deemed afresh appointment and he was not entitled to any benefit or advantage of his past contractual service as notified to him vide letter dated 14.09.2004. It has been submitted that the employment contract of the Plaintif f as First Officer F-27 Aircraft was extended from time to time till 10.07.2008. Learned counsel further argued that as per contract of employment the Plaintif f's privilege leave [PL] could be accumulated subject to refusal in writing by the competent authority as such the Plaintif f was informed for accumulation of his privilege leave. Later on, the Plaintif f himself requested to allow him to perform work during his accumulated leave period, which was allowed by the Management of Defendant to perform work uptil 10.07.2008 i.e. the date of expiry of contract of the Plaintif f's employment and also the date of his superannuation. It has been further argued that the PIAC Service Rules and Regulations 1985 are not statutory rules and regulations which were framed by the Board of Directors of PIAC. Thus, the Plaintif f's case does not fall merit consideration for his permanent absorption into the service of the Defendant. Learned counse l urged that neither any right of the Plaintif f is supported by the Rules and Policies nor the same have been discarded by the Defendant, therefore, the suit of the Plaintif f as framed and filed is not maintainable in law. Learned counsel has submitted that the contract period of the Plaintif f has already been expired on 10.07.2008 and as such he had been relieved from service of PIAC with effect from 10.07.2008. It has been further submitted that after completing successful training and necessary technical formalities, the Plaintif f was re-desigrated as Flight Officer on ATR Aircraft and he had willingly opted this process as required by the Defendant Corporation. Further argued that it is the right of the PIAC Board of Directors to take decisions in the interest of Defendant Corporation. Furthermore, the position on which the plaintif f was inducted had never been permanent as DH-6 Aircraft was never the part of career plan of the pilots in PIAC and subsequently the said air craft had been disposed of and no pilot is deputed thereon. Learned counsel further argued that the Plaintif f has totally failed to produce any evidence in support of his allegations; hence he is not entitled to any of the relief claimed and has failed to shake the evide nce of the Defendants' witness who has fully supported and corroborated the contents of their written statement by a well documentary evidence as such the suit is liable to be dismissed. In support of his stance, learned counsel has relied upon the following case law:- i) Shahbaz Khan v . Additional District Judge, Ferozwala and others [2017 SCMR 2005 ], ii) Saima Fareed and 4 others v. Divisional Director Schools Elementary/Secondary [Female Muzaf farabad] and 24 others [ 2018 PLC (C.S.) 338 ], iii) A. George v . Pakistan International Airlines Corporation [PLD 1971 Lahore 748 ], iv) Mst. Rani v . Pakistan International Airline Corporation and another [2017 PLC…
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