2021 S C M R 998
[Supreme Court of Pakistan]
Present: Gulzar Ahmed, C.J., Ijaz ul Ahsan and Munib Akhtar, JJ
PAKISTAN TELECOMMUNICATION COMPANY LTD.---Appellant
Versus
MUHAMMAD SAMIULLAH---Respondent
Civil Appeal No. 616 of 2020, decided on 20th April, 2021.
(Against judgment dated 10.04.2019 of Peshawar High Court, D.I. Khan Bench,
passed in Writ Petition No. 1141-D of 2016 with C.Ms. Nos. 1301-D of 2018 and
454-D of 2019)
(a) Pakistan Telecommunication (Re-Organization) Act (XVII of 1996)---
----Ss. 35 & 36---Pakistan Telecommunication Corporation Act (XVIII of 1991), S.
9 [since repealed]---Constitution of Pakistan, Art. 199---Constitutional jurisdiction
of the High Court---Scope---"Master and servant" relationship---Ad hoc or
temporary employees employed by the Pakistan Telecommunication Corporation
(the Corporation) or the Pakistan Telecommunication Company Limited (the
Company)---Non-statutory terms and conditions of service---Distinction had to be
drawn between departmental employees of the Pakistan Telegraph and Telephone
Department (T&T Department)whose terms and conditions of service on their
transfer to the Pakistan Telecommunication Corporation (the Corporation) and then
to the Pakistan Telecommunication Company Limited (the Company)were
protected by law and those who were employed by the Company on contract or
work-charge basis whose terms and conditions of service were governed by the
rules of the Company that were clearly non-statutory---In the present case, the
respondent-employee fell squarely in the latter category as he was employed as a
workman on daily wages by the Corporation in 1992 whereafter his services were
regularized in 1998 and subsequently terminated---At no point in time was the
respondent working in the T&T department---Employees such as the respondent
who were employed by the Corporation or the Company on ad hoc or temporary
basis were not afforded statutory protection, and their employment was governed
by the principle of 'master and servant'---Any alleged violation of non-statutory
rules was not amenable to Constitutional jurisdiction of the High Court---Even
otherwise, an adequate and efficacious remedy of filing a grievance petition before
the Labour fora was available to the respondent, which alternate remedy he did not
avail---Appeal was allowed and impugned judgment of High Court, whereby
respondent was reinstated in service, was set aside.
Masood Ahmad Bhatti and others v. Federation of Pakistan and others 2012
SCMR 152; PTCL and others v. Masood Ahmad Bhatti and others 2016 SCMR
1362 and Pakistan Telecommunication Company Ltd. through Chairman v. Iqbal
Nasir and others PLD 2011 SC 132 ref.
(b) Pakistan Telecommunication (Re-Organization) Act (XVII of 1996)---
----S. 34---Constitution of Pakistan, Art. 199(5)---'Person' within the meaning of
Art. 199(5) of the Constitution---Pakistan Telecommunication Company Limited
(PTCL) was a person within the meaning of Art. 199(5) of Constitution.
Pakistan Telecommunication Company Ltd. through Chairman v. Iqbal Nasir and
others PLD 2011 SC 132 ref.
(c) Civil service---
----Ad hoc, temporary employee or contract employee---No vested right of
regularization---Ad hoc, temporary or contractual appointment did not create any
vested right of regularization in favour of the appointee.
Shahid Anwar Bajwa, Advocate Supreme Court for Appellant (via video link
from Lahore).
Raheel Zafar, S.M. Legal for Appellant.
Ahmed Ali, Advocate Supreme Court for Respondent.
Date of hearing: 2nd November, 2020.
JUDGMENT
IJAZ UL AHSAN, J.---Through the instant Appeal, the Appellants have
challenged the judgment of the Peshawar High Court dated 10.04.2019 (hereinafter
referred to as the "Impugned Judgment") whereby the petition of the Respondent
was accepted, and the Appellant was ordered to reinstate the respondent.
2. The necessary facts giving rise to this lis are that the respondent was
appointed as Lineman on daily wages at the appellant's branch in D.I. Khan in
1992. His services were regularized on 18.11.1998 in pursuance of an order of the
Director (PR-11) PTCL dated 17.09.1997. Subsequently, his services were
terminated, and he assailed his termination through Constitutional Petition No.19-
D/2012 before the Peshawar High Court. The petition was allowed vide judgment
dated 21.03.2012 with a direction to reinstate the respondent on his post with all
back benefits. Aggrieved, the Appellant filed C.Ps. Nos.613 and 614 of 2012 before
the apex court which were dismissed as withdrawn on 19.11.2012. Subsequently,
the respondent was reinstated in service on 10.07.2017 as a result of contempt of
Court proceedings initiated by him before the Peshawar High Court. Subsequently,
he was served with a Show Cause Notice alleging absence from duty without
approval of the competent authority and awarded major penalty of dismissal from
service on 28.11.2018. The Respondent filed a constitutional petition before the
Peshawar High Court challenging his dismissal which was allowed vide the
Impugned Judgment with a direction to reinstate the Respondent on his post. The
High Court held that the Respondent was a public servant as envisaged in section
11 of the Pakistan Telecommunications (Reorganization) Act 1996, and that the
terms and conditions of his employment were protected by sections 35(2) and 36(2)
of the Act, which are statutory in nature. Aggrieved, the appellant approached this
Court and sought leave to appeal.
3. Leave to appeal was granted by this Court vide order dated 08.07.2020 which
is reproduced below for ease of reference:
"Learned ASC for the petitioners contends that the Respondent was not an
employee of the erstwhile T&T Department rather was employed by the
petitioners in the year 1998 and the terms and conditions of his service were
not statutory, nor the petitioner is a statutory company and thus the very writ
petition filed before the High Court was not maintainable. He further
contends that the law relied upon in the impugned judgment was not
applicable to the facts and circumstances of the instant case and thus the
impugned judgment is not sustainable in law.
2. The submissions made by the learned ASC for the petitioners require
consideration. Leave to appeal is therefore granted to consider, inter alia, the
same.
4. The main argument advanced by the learned counsel for the Petitioner is that
in the Impugned Judgment the High Court has relied upon the case of Masood
Ahmed Bhatti and others v. Federation of Pakistan (2012 SCMR 152) to reinstate
the Respondent. However, the reliance is not apt because that case concerned
former civil servants of the T&T Department whereas the respondent has never
been an employee of the T&T Department. Learned ASC further contends that the
Respondent is a workman employed by the Pakistan Telecommunications
Corporation in 1992, therefore the terms and conditions of his employment are
governed by the rules of the Company which are non-statutory. Any violation of
non-statutory rules is not amenable to the jurisdiction of the High Court under
Article 199 of the Constitution of the Islamic Republic of Pakistan and the
appropriate remedy for the Respondent was before the fora constituted under the
Labour Laws, which he did not avail. The Learned counsel further contends that
Pakistan Telecommunications Company Limited is a private limited company
registered under the Companies Ordinance 1984 and is not a person within the
meaning of Article 199(5) of the Constitution of the Islamic Republic of Pakistan,
1973. Therefore, a constitutional petition against it is not maintainable.
5. The Learned counsel for the Respondent on the other hand has argued that the
absence of the Respondent from duty did not warrant major penalty of dismissal
from service as his wife was suffering from serious health issues which required
constant attention. He further contended that there is nothing on the record to show
that he was inefficient and the letter of his dismissal from service is illegal and
without lawful authority.
6. We have heard the learned counsel for the parties at length and gone through
the case record with their assistance. The following questions fall for the
determination of this Court:
i. Whether the terms and conditions of the Respondent's employment were
statutorily protected; and
ii. Whether PTCL is a person within the meaning of Article 199(5) of the
Constitution.
Before dilating upon the crux of the matter, the legal position must be laid out
clearly. In this regard, reference may be made to Section 9 of the Pakistan
Telecommunications Corporation Act 1991 (hereinafter "the 1991 Act") and
sections 35 and 36 of Pakistan Telecommunications (Reorganization) Act, 1996
(hereinafter "the 1996 Act") which read as follows: -
"9. Transfer of departmental employees to the Corporation.---(1)
Notwithstanding anything contained in any law, contract or agreement, or in
the conditions of services, all departmental employees shall, on the
establishment of the Corporation, stand transferred to, and become
employees of the Corporation, on the same terms and conditions to which
they were entitled immediately before such transfer, provided that the
Corporation shall be competent to take disciplinary action against any such
employee.
(2) The terms and conditions of service of any such person as is referred to in
subsection (1) shall not be varied by the Corporation to his disadvantages.
(3) Notwithstanding anything contained in any law for time being in force, no
person who stands transferred to the Corporation by virtue of subsection (1)
shall be entitled to any compensation because of such transfer."
"35. Vesting of the rights, property and liabilities of the Corporation.--
(2) An order issued under subsection (1) shall specify the employees of the
Corporation who shall, as from the effective date of the order, be transferred
to and become employees of the entity referred to in the order:
Provided that such order shall not vary the terms and conditions of service of
such employees to their disadvantage.
36. Terms and Conditions of service of employees.-
(1) No person transferred to the Company pursuant to sub section (2) of section
35, hereinafter referred to as "Transferred Employee", shall be entitled to
any compensation as a consequence of transfer to the Company:
Provided that the Federal Government shall guarantee the existing terms and
conditions of service and rights, including Pensionary benefits of the
Transferred Employees.
(2) Subject to subsection (3), the terms and conditions of service of any
Transferred Employee shall not be altered adversely by the Company except
in accordance with the laws of Pakistan or with the consent of the
transferred Employees and the award of appropriate compensation.
(3) At any time within one year from the effective date of order vesting property
of the Corporation in the Company, the Federal Government may, with the
prior written agreement of a Transferred Employee, require him to be
transferred to or revert him back and be employed by the Authority, National
Telecommunication Corporation, Trust or the Federal Government on the
same terms and conditions to which he was entitled immediately before such
transfer.
(4) Subject to proviso to subsection (1) of section 45 on transfer of a Transferred
Employee under subsection (3), the Federal Government shall assume
responsibility for his Pensionary benefits without recourse to the Pension
Fund referred to in that section.
(5) Under the order vesting property of the Corporation in the Company, the
Federal Government shall require the Company to assume the responsibility
of Pensionary benefits of the telecommunication employees and the
Company shall not alter such Pensionary benefits without the consent of the
individuals concerned and the award of appropriate compensation."
7. A bare perusal of the above provisions makes it abundantly clear that
departmental employees of T&T on their transfer to the Corporation became
employees of the Corporation under section 9 of the Act of 1991 and then of the
Company under section 35 of the Act of 1996. The terms and conditions of their
service remained fully protected under section 9(2) of the Act of 1991 and 35(2) of
the Act of 1996. Furthermore, none of the terms and conditions could be varied to
their detriment and under section 36 of the 1996 Act the Federal Government was
bound to guarantee the existing terms and conditions of service and rights including
pensionary benefits of the transferred employees. This matter has been elaborately
addressed by this Court in the case of Masood Ahmad Bhatti and others v.
Federation of Pakistan and others (2012 SCMR 152) and PTCL and others v.
Masood Ahmad Bhatti and others (2016 SCMR 1362). The relevant parts from the
same are reproduced below for ease of reference:
"(2016 SCMR 1362)
Since they by virtue of the aforesaid provisions became employees of the
Corporation in the first instance and then the Company, they did not remain
Civil Servants any more. But the terms and conditions of their service
provided by sections 3 to 22 of the Civil Servants Act and protected by
section 9(2) of the Act of 1991 and sections 35(2), 36(a) and (b) of the Act
of 1996 are essentially statutory. Violation of any of them would thus be
amenable to the constitutional jurisdiction of the High Court."
AND
:"(2012 SCMR 152)
15. Thus, it is evident that at the moment of transition when the appellants
ceased to remain employees of the Corporation and became employees of
PTCL, they admittedly were governed by rules and regulations which had
been protected by the PTC Act. The said rules, therefore by definition were
statutory rules as has been discussed above. PTCL, no doubt, could make
beneficial rules in relation to its employees which were in addition to the
rules of employment prevailing on 1-1-1996. However, by virtue of the
aforesaid proviso, PTCL had no power to "vary the terms and conditions of
service" of its employees who were previously employees of the
Corporation, "to their disadvantage". Even the Federal Government was
debarred by virtue of section 35 ibid, from varying such terms and condition
to the disadvantage of the appellants."
8. Now coming to the principal question in the present case, whether the terms
and conditions of the Respondent's employment enjoy statutory protection? The
answer is in the negative because neither the record nor the relevant law contains
anything to support such a conclusion. The Respondent was employed as a
workman on daily wages by Pakistan Telecommunications Corporation in 1992
whereafter his services were regularized in 1998 and subsequently terminated. At
no point in time was he working in the T&T department. In this regard, it is
essential to draw a distinction between departmental employees of the T&T
Department whose terms and conditions of service on their transfer to the
Corporation and Company were protected by law and those who were employed by
the Company on contract or work-charge basis whose terms and conditions of
service were governed by the rules of the Company that are clearly non-statutory.
The case of the Respondent falls squarely in the latter category. Therefore, any
alleged violation of non-statutory rules was not amenable to writ jurisdiction of the
High Court. In this regard reference must be made to the case of Pakistan
Telecommunication Company Ltd. through Chairman v. Iqbal Nasir and others
(PLD 2011 SC 132) wherein it was categorically held that employees of Pakistan
Telecommunication Corporation Limited were governed by principle of "Master
and servant" and in the absence of statutory rules, constitutional petitions filed by
employees were not maintainable.
9. Even otherwise, an adequate and efficacious remedy of filing a grievance
petition before the Labour Fora was available to the Respondent. There is no denial
of the fact that the said alternate remedy has not been availed by the Respondent.
Hence, we are not persuaded by the argument of the learned counsel for the
respondent that the non-maintainability of the constitutional petition before the
High Court under Article 199 of the Constitution would render the Respondent
rcmediless.
10. In the impugned judgment, the High Court has relied on the judgment of this
Court in the case of PTCL and others v. Masood Ahmad Bhatti and others ibid in
concluding that the terms and conditions of the Respondent's employment were
statutory in nature. Such conclusion is ex facie erroneous and based upon
misinterpretation of the ratio of Masood Ahmed Bhatti's judgment. It is pertinent to
note that in the aforementioned case, this Court unequivocally held that only
departmental employees who stood transferred to the Corporation and then to the
Company will be guaranteed statutory protection. Therefore, those employees, such
as the Respondent, who were employed by the Corporation or the Company on ad
hoc or temporary basis were not afforded statutory protection. Accordingly, the
employment of such persons shall be governed by the principle of master and
servant. The relevant part of the aforementioned judgment is reproduced below for
ease of reference:
"7. The argument of Mr. Khalid Anwar, learned Sr. ASC for the petitioners that
where a three-Member Bench of this Court in the case of Pakistan
Telecommunication Company Ltd. v. Iqbal Nasir and others (supra) held
that the employees of PTCL being governed by the principle of master and
servant could not invoke jurisdiction of the High Court under Article 199 of
the Constitution, another Bench with equal number of Judges could not
deviate therefrom, is based on misconception when the employees in the
aforesaid case, were not those whose terms and conditions of service on
their transfer to the Corporation and the Company were protected and
guaranteed under section 9 of the Act of 1991 and sections 35(2) and 36(1)
and (2) of the Act of 1996, but those who were employed on contract or on
work-charge basis."
11. In light of what has been discussed above, we are in no manner of doubt that
the High Court has erred in law by concluding that the terms and conditions of the
Respondent's employment enjoyed statutory protection. Accordingly, the Impugned
Judgment is not sustainable in law and is a departure from the dicta of this Court
rendered in cases of Masood Ahmad Bhatti and others v. Federation of Pakistan and
others (2012 SCMR 152), PTCL and others v. Masood Ahmad Bhatti and others
(2016 SCMR 1362) and Pakistan Telecommunication Company Ltd. through
Chairman v. Iqbal Nasir and others (PLD 2011 SC 132).
12. With regards to the argument of the learned counsel for the Petitioner that
PTCL is not under federal control and is therefore not a person within the meaning
of Article 199(5) of Constitution, the same is misconceived. This question has been
adequately put to rest by this Court in Pakistan Telecommunication Company Ltd.
through Chairman v. Iqbal Nasir and others (PLD 2011 SC 132). The relevant part
is reproduced below for ease of reference:
"22. The question whether the PTCL was a 'person' performing functions in
connection with the affairs of the Federation within the contemplation of
Article 199(5) of the Constitution was first dilated upon by this Court at
great length in Muhammad Zahid's case in which the plethora of case law
was gone into and it was held that the employees of the erstwhile T&T
Department transferred to the Corporation [PTC] under the relevant
provisions of the Act of 1991 and later/ on succeeded by the PTCL,
discharging their functions and duties in the International Gateway
Exchange as Operators were inducted permanently or regularized
subsequently under the rules necessarily related to one of the affairs of the
Federation within the purview of provisions of Article 199 of the
Constitution; hence similar duties and functions in the International
Gateway Exchange being discharged by the private respondents as
Operators could not be distinguished to say that the same did not relate to
the affairs of the Federation though conferred upon the Corporation [PTC],
and finally upon the PTCL. It was further held that the Telecommunication
undisputedly was the subject which pertained to one of the important affairs
of the Federation dischargeable now through the PTCL; hence such entity
involved in the same exercise of the sovereign powers, essentially fell
within the connotations of the word 'person' as defined in clause (5) of the
Article 199 of the Constitution; accordingly, the grievance of the private
respondents was amenable to the writ jurisdiction of the High Court."
13. Another distinction that we would like to draw through this judgment for the
purposes of clarity is between an "ad hoc" or temporary employee, a contract
employee and a permanent employee. The term temporary suggests a post which
has been temporarily created for a definite period of time or for a certain
purpose/project, and upon the completion of that project, services of the temporary
employee appointed in it are accordingly terminated. On the other hand, an ad hoc
employee is also a temporary employee who is appointed for an existing post for a
short period of time, or for a specific purpose, in lieu of the person eligible for that
post and upon the appointment of that eligible regular appointee, or with the lapse
of time, the ad hoc employee is automatically relieved. It is pertinent to note that an
ad hoc, temporary or contractual appointment does not create any vested right of
regularization in favour of the appointee. With regard to the terms of contract
workman and permanent workman, these have been adequately addressed by this
Court in Pakistan Telecommunication Company Ltd. v. Iqbal Nasir and others (PLD
2011 SC 132). The relevant part is reproduced below for ease of reference:
"26. It may be observed that as provided in clause (g) of Order I of the Schedule
to the W.P. (Standing Orders) Ordinance, 1968, a contract worker is a
workman who works on contract basis for a specific period of remuneration
to be calculated on piece rate basis, while clause (b) of Order I of the
Schedule to the W.P. (Standing Orders) Ordinance, 1968, provides that a
'permanent' workman is a workman who has been engaged on work of
permanent basis likely to last more than nine months and has satisfactorily
completed a probationary period of three months in the same or another
occupation in the industrial or commercial establishment, including breaks
due to sickness, accident, leave, lock-out, strike (not being an illegal lock-
out or strike) or involuntary closure of the establishment, and includes badli
who has been employed for a continuous period of three' months or for one
hundred and eighty-three days during any period of twelve consecutive
months."
14. In light of what has been discussed above, this appeal is allowed. The
Impugned Judgment dated 10.04.2019 passed by the Peshawar High Court is
accordingly is set aside.
MWA/P-8/SC Appeal allowed.
;
