' 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 here in below:--- "(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:- "3-5-201:11. 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.
(t) 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 can 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 above said judgment is reproduced herein below:--- "(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.
(s) 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 dal& (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 for 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 Governors of the Foundation is concerned, it was argued that the same clearly emanates by virtue of its nature of composition without prejudice to his case, enjoyed the status of a 'person' within the contemplation of Article 199(5) of the Constitution, hence; the grievance on this score as Well, was amenable to the writ jurisdiction. It was explained that appointment of the private respondents were made on their applications and their periodical contracts have been continuously renewed after the expiry of the initial and previous terms thus, they by operation of law have become permanent and regular employees of the PTCL and are entitled to the same emoluments etc., is being paid to the other similar placed employees of the PTCL. Reliance has been placed on the reported judgments i.e, (1) Masood Ahmed and 24 others v.
Pakistan International Airlines Corporation and 2 others 2001 PLC (C.S.) 41, (2) Sindh Employees Social Security Institution v. Consolidated Sugar Mills Limited 1989 SCMR 888 (3) Atchison College Lahore through Principal v. Muhammad Zubair and another PLD 2002 SC 326, (4) Mst. Tahira Almas and another v. Islamic Republic of Pakistan through Secretary, Ministry of Interior, Islamabad and another PLD 2002 SC 830, and (5) Ikram Bari and 524 others v. National Bank of Pakistan through President and another 2005 SCMR 100.
11. Syed Iftilchar Hussain Gillani, the learned Sr. Advocate Supreme Court for the private respondents Nos.15 to 28 in addition to the above-noted contentions of Mr. Muhammad Akram Sheikh, submitted that no action was taken by the PTCL against the private respondents and they are the permanent employees under the contracts to whom Standing Orders Ordinance applies, whereas; the PTCL is a Public Limited Company and no instrumentality of the State is involved contra to the interests of the said employees.
12. The contentions put forth on behalf of the parties by their learned counsel have been considered in the light of the documents available on the paper book. The impugned judgments have also been carefully perused in the light of the relevant provisions of the law, the Constitution and the judgments cited by the parties' learned counsel.
The Pakistan Telecommunication Corporation was established by Pakistan Telecommunication Corporation Act of 1991 (XVIII of 1991) which extends to the whole of Pakistan and came into force at once. The departmental employees has been defined in section 2(e) of the said Act hereinafter referred to as the 'Act' which reads as under:--- "'Departmental employees' means employees belonging to the Pakistan Telegraph and Telephone Department and includes employees of the said Department who may, for the time being, be serving in other organizations, but does not include members of the accounts group or secretariat group or other employees of external organizations who may be serving in the said Department."
' The Board constituted under section 4 of the Act was invested to exercise all powers which may be exercised or done by the Corporation and the general direction and administration of the affairs of the Corporation by*virtue of subsection (i) of section 4 of the Act shall vest in the Board, whereas; the Board shall consist of the directors specified in subsection (ii) of section 4 of the Act to be appointed by the Federal Government including its Chairman. The purposes and the functions of the corporation has been given in section 6(i) of the Act including to establish, maintain, and operate telecommunications as provided in subsection (i) of section 6 of the Act besides the other in numerated purposes and functions of Corporation envisaged by section 6. It has been provided in subsection (4) of section 6 that in performing its functions, the Corporation shall be guided on question of policy by the instructions of the Federal Government in the letter and spirit of the Act and any other Act passed by the Parliament. Schemes envisaged by section 7 of the Act to be approved from time to time by the Corporation are required to be submitted for approval of the Federal Government including five years plan.
' On coming into force of this Act, all the departmental employees i.e, of the Telegraph and Telephone Department of the Government of Pakistan by virtue of subsection (i) of section 9 of the Act on the establishment of the Corporation shall stand transferred to and become employees of the Corporation on the terms and conditions to which they were entitled immediately before such transfer notwithstanding anything contained in any law, contract, agreement or in the condition of service whereas; the Chairman, directors and servants of the Corporation when acting or purporting to act in pursuance of any of the provisions of the Act have been treated to be public servants within the meaning of section 21 of the P.P.C., by section 10 of the Act. The returns are also required to be submitted to the Federal Government as soon as possible after the end of every financial year and a report on the conduct of the affairs of the Corporation for that year before the last date of December next falling by virtue of section 11 where under also the Federal Government is competent to require the Corporation to furnish it with:--- "(i) any return, statement, estimate, statistics or other information regarding any matter under the control of Corporation; or
(ii) a report on any such matter; or
(iii) a copy of any document in the charge of the Corporation."
' The assets and liabilities of the Telegraph and Telephone Department which, vested in the said Department shall stand vested in the Corporation on commencement of the Act under section 12.
The authorized share capital of the Corporation at the first instance be to the tune of Rs,30 billion increasable by the Federal Government under section 13 of the said Act while by virtue of subsection (4) of section 13 the Federal Government is competent to authorize the Corporation at any time to increase the subscribed and paid up capital allotted to the Federal Government or general public, while the liability of the Federal Government to the creditors of the Corporation shall be limited to the extent of the grant made by the Federal Government and the loans raised by the Corporation with the sanction of the Federal Government as provided by section 15 of the Act. The tariff at which the Corporation may provide telecommunication services to users etc. In Pakistan have been given in section 16 of the Act provided that the revisions of rates as given in IInd proviso to subsection (1) of section 16 of the Act, which results in an increase in collection charges from users in Pakistan, approval of the Federal Government has been made essential. The 'Board constituted under the Act has been authorized to frame such regulations as it may be consider necessary or expedient to carry into effect the provisions of the Act with the approval of the Federal Government. The provisions of Companies Ordinance, 1984 so far it relates to the winding up of the Companies have been made inapplicable to the Corporation which shall not be wound up except by order of the Federal Government and in such manner as the Federal Government may direct.
13. The Pakistan Telecommunication Corporation Act, 1991 (XVIII of 1991) and the Pakistan Telecommunication (Re-organization), Ordinance, 1996 (XXX of 1996) were repealed by section 59 of the Pakistan Telecommunication (Re-Organization) Act, 1996 (Act XVII of 1996) published in the official Gazette of Pakistan Extraordinary Part I, 17th October, 1996:which extends to the whole of Pakistan and came into force at once. Company, Corporation, National Telecommunication Corporation, National Telecommunication Corporation and Telecommunications employees, means as described in section 2 (d)(e), (1) and (t) are reproduced respectively herein below:--- "(d) "Company" means the Pakistan Telecommunication Company Limited established and incorporated in accordance with section 34.
"(e) "Corporation" means the Pakistan Telecommunication Corporation established under the Pakistan Telecommunication Corporation Act, 1991 (XVIII of 1991).
(i) "National Telecommunication Corporation" means the corporation to be established under section 41;
(t) "telecommunication employees" means the employees of the Corporation who are transferred to the employment of the Company under this Act, other than those to whom subsection (3) of section 36 applies, and all persons who on the effective date for the company were employees of the Corporation the former Telegraph and Telephone Department of the Federal Government and are receiving or are entitled to receive pensionary benefits from the Corporation."
' The Authority under this Act has to discharge fictions and exercise powers as described in sections 4 and 5 of the Pakistan Telecommunication (Re-Organization) Act, 1996. Moreover, the Authority has also to perform such other functions as the Federal Government may from time to time assign to it by virtue of clause (h) of section 4 of the Act. The Federal Government is also competent to issue policy directives to the Authority if it considers necessary not inconsistent with the provisions the Act and the Authority shall be under legal duty to comply such directive under section 8 of the Act on the matters relating to Telecommunication policy referred to in subsection (2). The Federal Government is competent to call for reports from time to time on the activities of the Authority and Board, constituted under the Act for the purpose of performing its functions and the Authority has to comply with such directives. The budget statement as well is required to specifically state the estimated receipts and expenditures and the sums which are likely to be required by the Authority from the Federal Government for the relevant financial year, whereas; any surplus of receipts over the actual expenditure in the year is required to be remitted to the Federal Consolidated Fund and any deficit from actual expenditure shall be made up by the Federal Government within the meaning of section 12(2) and (3) of the Act. The bank accounts of Pakistan Telecommunication Authority Fund as provided by subsection (2) of section 13 to be maintained with the National Bank of Pakistan which to be maintained in such form and in such manner as the Federal Government may determine in consultation with the Auditor-General of Pakistan and shall be audited at the close on each financial year by the Auditor-General of Pakistan under sections 14 and 15 of the Act.
' Section 35(2) of the Act, 1996 for sake of convenience is reproduced here in under : "(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 terms and conditions of service of such employees to their disadvantage."
' The transferred employees to any of the entities specified in subsection (1) of section 35 of the Act, 1996 shall not be entitled to any compensation as a consequence of his transfer to the Company provided that the order of the Federal Government under the above subsection shall not vary the terms and conditions of service of such employees to their disadvantage including pensionary benefits of the transferred employees and; within the meaning of section 36 of the Act, 1996 such terms and conditions of service shall not be altered adversely by the company except in accordance with law or with the consent of the transferred employees. By virtue of section 58 of the Act, 1996 overriding effect has been given to provisions of the Act, 1991 notwithstanding anything contained in the Telegraph Act, 1885, the Wireless Telegraph Act, 1933 or any other law containing any provision inconsistent to this Act. It would not be out of place to mention that on repeal of the enactment (Act XVIII of 1991), Pakistan Telecommunication (Re-Organization) Ordinance, 1996 was promulgated by the President i.e, Pakistan Telecommunications Ordinance, (XXX of 1996).
14. Now in the light of the above depicted legal spectrum, adverting to the relevant facts of the case, it is worthwhile to mention that on the application of the Board of Directors of PTC established under the Pakistan Telecommunication Corporation Ordinance, 1990 the Federal Government approved the scheme for administration of the amount of Rs,500,000 to be applied in trust for charitable purpose to be known as "Telecom Foundation" through Notification dated 27-11-1991 published in the Extraordinary Gazette of Pakistan besides settling the scheme set out in the schedule. Aims and objects for administration of the "Telecom Foundation" have been given in clause (2) of the said Notification whereas; the composition of the administration of the Foundation has been given in clause (3) which provides that Secretary Communication shall be Chairman, of the Board of Governors of the said Foundation and the Chairman, Pakistan Telecommunication Corporation shall be its Vice-Chairman. The composition of the Board of Governors as given in the Notification is reproduced hereunder:--- "1.Secretary, Communication Chairman 2.Chairman Pakistan Telecommunication CorporationVice- Chairman 3.Chief Executive/Managing Director of the Telecom Foundation Member 4.Member Finance, PTC Board Member 5.Managing Director, ITP Member 6.Member Technical, PTC Board Member 7.Chief Engineer (Development)- Member 8.Chief Engineer (M&O), PTC Member 9.One representative of Special Education and Welfare Division (not below the rank of Joint Secretary)Member 10.Two retired Chief Engineers of PTC to be nominated by the Board Member 11.Secretary of the Foundation Member"
15. The Pakistan Telecommunication Corporation had framed regulations relating to its employees, called Pakistan Telecommunication Corporation Service Regulations, 1996 with the approval of the Federal Government under section 20 of the Pakistan Telecommunication Corporation Act, 1991 (Act XVIII of 1991) which regulate the matters pertaining to the service of the employees of PTC appointed on regular basis including officers, servants, experts or consultants under the Act or under the regulations and departmental employees within the meaning of section 8 of the Act.
16. Scrutiny of the documents available on the paper book and the additional paper books filed on behalf of the parties shows that private respondents were appointed from time to time ranging between from the year, 1992 to 2002 on contract basis as a result of interviews/ negotiations for a period of 80 to 89 days on daily remuneration for operation of any of the Operators Positions of Booking, Enquiry or Traffic Assistance, etc. With the International Gateway Exchange, Islamabad on the terms and conditions specified therein by the Telecom Foundation/respondent No,29 to supply manpower to the appellant No,1/Pakistan Telecommunication Corporation. These contracts of the private respondents were renewed from time to time on the expiry of the initial terms and the previous terms of appointments which fact has not been disputed during the course of arguments and in the pleadings of the contesting parties, it has also been admitted that the private respondents are discharging their duties and functions as Operators in the International Gateway Exchange, Islamabad being discharged by the other regular Operators of the Pakistan Telecommunication Corporation succeeded by the PTCL.
17. In order to appreciate the contentions advanced on the strength of the case-law referred to during the course of arguments, it would be appropriate to give a brief relevant survey of the dictums as contained in the cited judgments.
' In the case of Muhammad Boota and 2 others v. National Construction Company and 2 others 1984 CLC 256. The learned Single Bench of the Lahore High Court, Lahore dealing with question of issuance of writ against a Private Limited Company has held as under:- "Art.9-Companies Act (VII of 1913)-Writ jurisdiction-Private limited Company standing registered under Companies Act, 1913 working on commercial considerations without any financial assistance from Federal or Provincial Government, held cannot be regarded as a person amendable to writ jurisdiction of High Court under Art. 199, even if such a company has been declared an official development agency for purpose of development of a Housing Scheme in its capacity as contractors."
' The learned Single Judge of the Lahore High Court 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 on having considered the facts relating to the claim of the appellants to be the employees of PARCO controverted by the respondents in appeal observed; depicted in the head note in the following terms:--- "S. 43---Labour appeal---Factual controversy---Dispute amongst the parties i.e, between the appellants and respondents, appellants claim to be employees of PARCO (respondents), PARCO disputes the same, respondents claims to be employer of the appellants and such like controversy cannot be resolved until and unless the evidence of both -the parties is recorded by Labour Court- jurisdiction of the Labour Court is concerned, the matter in dispute could be agitated before the Labour Court---case remanded."
' As regards the owner's liability to make contribution to the Social Security Institution in respect of the employees engaged by the contractor for the purpose of executing such owners work was considered on the premises under the West Pakistan Employees Social Security Ordinance X of 1965 this Court has dilated upon the terms `employee' and 'employer' in the case of Sindh Employees Social Security Institution v. Consolidated Sugar Mills Limited 1989 SCMR 888 and held as under:--- "The definition of 'employer' has to extremely relevant features for understanding its meaning and scope. Firstly, in the case of works and undertaking on behalf of the State, the contractor or the licensee carrying on the work has been made the employer.
' Secondly, "in every other case" that is in which State's interest is not in that manner directly involved "the owner of industry, business, undertaking or establishment in which an employee works" has been made the employer. On these two features, without for the present examining the concept of employee, the respondent being the owner would be the employer.
' Coming to the definition of employee, the requirements are that (i) he must normally be working for at least twenty four hours per week; (ii) he must be working for wages; (iii) he must be working in connection with the work of the industry, business, undertaking or establishment; (iv) he must be working under a control of service or apprenticeship. All the terms of the contract have not to be established once the contractual relationship is established. There appears to be a mistaken impression that the contract of employment has to be between the owner and employee. The definition of employer and employee do not contain or exhibit any such constraint or limitation.
' In this context of these definitions the charging provision (section 20) leaves no manner of doubt or ambiguity. Employer has been defiant to mean the owner and the owner has been charged under section 20 for contribution. Even where the owner does not fall strictly within the definition of an employer as in the case of State undertaking or an owner of a plot over which he wants to get a building constructed through the Contractor, the liability under the Ordinance has been cast on the State under subsection (9) and on the owner of the building under subsection (8) of section 20.
Such extensions cannot be interpreted as to imply the exclusion of the other owners defined as employers but as including them within the charging provisions. Reading these provisions together the conclusion is increasable that the owner of the industry is liable for employees engaged for his industry even through the contractor. The contention that the Contractor should be taken to be employer and not the owner, as expressed in the agreements with the contractors and made liable for the contribution, cuts across the scheme of the statute. Where it was intended by law to make the Contractor the employer, the statute made provision for it directly (State undertaking-Section 2(9) or indirectly (section 20(8) and section 20(9). By construction or interpretation if the 'Courts were to introduce such contractors also as employers on the basis of contracts or otherwise, then the Court would be rewriting the law itself. Such an interpretation being in derogation of the express provision that "in every other case" it is the owner who is to be the employer. Owner respondent held was obliged to contribute to the Social Security Fund for employees engage through the contractor in the circumstances."
' The learned Single Bench of the Lahore High Court, Lahore before which the order passed by the appellate Court under the I.R.O., 1969 was assailed in writ petition dealing with the defined terms i.e, `employer', 'contract of employment', 'contractor' and distinguished it, as emerge from the defined words namely; 'workman' under I.R.O. In the case of Taj Din and 44 others v. Punjab Labour Court No,3 Lyallpur PLD 1976 Lah. 1169, reflected as under the head note:--- "---S. 2(xxviii)--- Employer--- Employee--- Contract of employment, Ingredients of.
' A concept of employment involves three ingredients, (i) employer; (ii) employee and (iii) the contract of employment. The employer is one who employs i.e,, one who engages the services of other persons. The employee is one who works for another for hire. The employment is the contract of service between the employer and the employee where under the employee agrees to serve the employer subject to his control and supervision. Employment brings in the contract of service between the employer and the employee. The control of the Management, which is a necessary element of the relationship of master and servant, is not directed towards providing or dictating the nature of the article to be produced or the work to be done, but refers to the other incidents having a bearing on the process of work the person carries out in the execution of the work. The manner of work is to be distinguished from the type of work to be performed.
(c) Industrial Relations Ordinance (XXIII of 1969) ---S. 2(xxviii) "Contractor"---Meaning. [Words and phrases]. A contractor is a person who in the pursuit of an independent business undertakes to do specific jobs of work for other persons without submitting himself to their control in respect to the details of the work.
(d) Industrial Relations Ordinance (XXIII of 1969) ---S. 2(xxviii)---Contractor workman Distinction between.---[Words and phrases].
' There is a clear cut distinction between a contractor and a workman. The identifying mark of the latter is that he should be under the control and supervision of the employer in respect of the details of the work.
(e) Industrial Relations Ordinance (XXIII of 1969) ---S. 2(xxviii)---Employer and employee---Prima facie test for determination of relationship between.
' The prima facie test for the determination of the relationship between, the employer and the employee is the existence of the right in the employer to supervise and control the work done by the employee not only in the matter of directing what work the employee is to do but also the manner in which he shall do his work.
(f) Industrial Relations Ordinance (XXIII of 1969) ---S. 2(xxviii)---Words and phrases---Words "either directly or through a contractor" in S.2(xxviii)-- -Indicate employment being by Management directly or through some kind of employment "Tency---Contract of employment there is between Management and person employed in either case privity of contract necessary between Management and employee to constitute relationship of employer and employee-Worker within meanings of Act-Person entering into contract of service under Management, excluding independent contractor or his coolies or servants not under control and supervision of employer. [Words and phrases].
' The words 'either directly or through a contractor" in section 2(xxviii) of the Act; indicate that the employment is by the Management directly or through some kind of employment agency and in either case there is a contract of employment between the Management and the persons employed. There should be a privity of contract between them and the Management. Where for example coolies are not employed by the management directly nor they are employed by the Management through the agency of an independent contractor it follows that coolies employed by the said contractor are not workers within the meaning of the definition in the Act. The various provisions contained in different sections of the Act give a clear indication that a worker under the definition of the Act is a person who enters into a contract of service under the Management and does not include an independent contractor or his coolies or servants who are not under the; control and supervision of the employer."
18. On an identical question relating to the interpretation of the ir, expression 'person' as in clause
(5) of Article 199 of the Constitution of Islamic Republic of Pakistan with reference to the extraordinary powers of the High Court under Article 201 of the interim Constitution in issuing writ, it was ruled that the High Court can exercise powers only in respect of the 'person' performing, within territorial jurisdiction of the Court functions in connection with the affairs of the Federation, Province or Local Authority and if the 'person' as defined in clause (5) of the Article whose acts, actions of proceedings before the High Court does not fall within the specified categories then it would clearly be not amenable to the extraordinary jurisdiction of the High Court as held by this Court in the case of Salahuddin and 2 others v. Frontier Sugar Mills and Distillery Ltd., Takht Bhai and 10 others PLD 1975 SC 244.
' This Court while interpreting the expression 'person' performing within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, Province or a Local Authority as given in sub-clauses (a), (b) of clause 5 of Article 199 of the Constitution in relation to issuance of writ against a public limited company ruled, as depicted in the head note which reads as under:--- "Constitution of Pakistan (1973)--- ---Art. 201(2)---Constitution of Pakistan, 1973, Art.199(2)--- Expressions "person performing....Affairs of the Federation, a Province or a Local Authority" in clause (a) and "a person" in clause (b) of Articles public limited Companies and holders of offices therein like those of Directors, Chief Executives etc. Whether and when amenable to writ jurisdiction of High Court---Private organizations or persons as distinguished from Government or Semi Government agencies and functionaries cannot be regarded as persons performing function in connection with affairs of Federation or Province simply because their activities happen to be regulated by laws made by State---Person including body corporate can be regarded as person performing functions in connection with affairs of Federation etc. If functions entrusted to them are indeed functions of State or if control of organization vests substantially in hands of Government Public limited company not created by any statute and governmental control limited only by certain regulations Such company not a person performing functions in connection with affairs of Federation etc.--- Such company not amenable to issuance of writ under clause (2)(a)(i) of Art.201 of Constitution of Pakistan, 1973 or of Art.199 of Constitution of Pakistan, 1973---Nevertheless offices held by Director and Chief Executive etc. Of such public limited company must be regarded as public offices which are of greatest interest to the public and as such its Director etc. Are within purview of clause (2)(b)
(ii) of Art. 201 of Constitution of Pakistan, 1973 and of Art.199 of Constitution of Pakistan, 1973 High Court competent to issue writ in nature of quo warranto--- High Court, however, can grant only declaration as to authority of person to hold office in question but it could not grant of mandamus to restore or reinstate applicant to office.
' The power conferred on the High Court under sub-clauses (a)(i) and (a)(ii) of clause (2) of Article 201 of the Interim Constitution can' be exercised only in respect of a person performing, within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, a province or a local authority. If the person whose acts, actions or proceeding are challenged before the High Court, does not fall within any of the specified categories, then he would clearly not be amenable to this extraordinary jurisdiction. The term `person' having been defined in clause (5) of the Article itself, and also in the General Clauses Act, does not present much difficulty; nor does the term 'local authority'.
' Now, what is meant by the phrase "performing functions in connection with the affair of the Federation or a Province". It is clear that the reference is to governmental or State functions, involving, in one form or another, an element of exercise of public power. The functions may be the traditional police functions of the State, involving the maintenance of law and order and other regulatory activities; or they may comprise functions pertaining to economic development, social welfare, education, public utility services and other State enterprises of an industrial or commercial nature. Ordinarily, these functions would be performed by persons or agencies directly appointed, controlled and financed by the State, i.e, by the Federal Government or a Provincial Government.
However, in recent years, there has been manifest a growing tendency on the part of governments to create statutory corporations for undertaking many such functions, particularly in the industrial and commercial spheres, the belief that, free from the inhibiting effect of red-tapism, these semi- autonomous bodies may prove more effective, flexible and also profitable. Inevitably, government retains effective control over their functioning by appointing the heads and other senior officers of these corporations, by regulating their composition and procedures by appropriate statutes, and by finding funds for financing their activities. Examples of such statutory corporations are the National Bank of Pakistan, the West Pakistan Water and Power Development Authority, the National Shipping Corporation, the Agricultural Development Bank of. Pakistan, and the large number of Universities functioning under their respective statutes. On account of their common attributes, as mentioned in the preceding paragraph, they have all been regarded as persons performing functions in connection with the affair' of the Federation or a Province.
' Deputy Managing Director, National Bank of Pakistan v. Ata-ulHaq PLD 1965 SC 201; Wali Muhammad v. General Manager, WAPDA, Lahore PLD. 1964 Pesh.167; Chairman, East Pakistan Industrial Development Corporation v. Rustam Ali PLD 1966 SC 848; Muhammad Ashraf Pervaiz v.
Agricultural Development Bank of Pakistan PLD 1973 Lah. 425; Abdur Razzaq v. WAPDA PLD 1973 Lah.
188 and R.T.H. Janjua v. National Shipping Corporation PLD 1974 SC 146 ref.
' However private organizations or persons, as distinguished from Government or Semi- Government agencies and functionaries cannot be regarded as persons performing functions in connection with the affairs of the Federation or a Province simply for the reason that their activities happen to be regulated by laws made by the State. Accordingly, a joint-stock company, , incorporated under the Companies. Act, for the purpose of carrying on commercial or industrial activity for the benefit of its shareholders, cannot be regarded as a person performing State functions just for the reason that its functioning is regulated by law or that the distribution of its manufactured products is subject to governmental control in the -public interest. The primary test must always be whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power; whether the control of the organization vests in a substantial manner in the hands of Government: and whether the bulk of the funds is provided by the State. If these conditions are fulfilled, then the person, including a body politic or batty corporate, may indeed be regarded as a person performing functions in connection with the affairs of the Federation or a Province., otherwise not.
' Now, the Frontier Sugar Mills and Distillery Ltd. Is a public limited company, incorporated under the Companies Act, 1913, like a large number of other such Companies in Pakistan. Although the Provincial Government, holds preferential shares in the company to the extent of rupees two lacs, yet the bulk of its paid up capital of rupees ten lacs has come from private shareholders. At one time, the Chief Minister of the Province or the Chief Secretary may have been the ex officio Chairman of the Board, but at the time of filing the writ petition the management was clearly vested in the elected Board of Directors, functioning through a private person appointed as the Managing Director by the Board of Directors. In fact, under -Article 139, as added in 1950, respondent T. Appears to have been appointed to this position for an indefinite period. In these circumstances, the Company obviously remains under its own management, irrespective of the Government's right to nominate one of the Directors. The Company is not an organization or corporation created by a special, statute, nor is it substantially financed and controlled by the Government. The Government control is limited to those regulations which apply to all similar concerns engaged in the sugar industry. Such governmental control of commercial or industrial activities cannot be regarded as' investing joint stock companies with the character of a person performing functions in connection with the affairs of a Province or a Federation. The High Court was, therefore, clearly right in holding that the Company was not amenable to the issuance of a writ under clauses (2)(a)(i) of Article 201 of the Interim Constitution.
' As regards the power conferred by clauses (2)(b)(ii) of Art. 201 of the Interim Constitution it is in the nature of the well known prerogative writ of quo warranto. There are significant differences as compared to clauses (2)(a)(i) and (2)(a)(ii), namely: (a) Whereas under clauses (2)(a)(i) and (2)
(a)(ii) the application must be by an aggrieved party, under clauses (2)(b) the application can be by 'any person' and (b) Whereas under the former the person whose act or action is called in question must be a person performing, functions in connection with the affair of the Federation, a Province or a local authority, under clauses (2)(b)(ii) the respondent must be a person holding or purporting to hold a public office. There is no specific mention of the nature of his functions. The reason for enabling 'any person', as distinguished from an 'aggrieved party', to apply fog a writ of quo warranto is that the inquiry relates to a matter in which the public are interested, namely, legality and sanctity of a public office, and not the enforcement of individual rights or redress of individual grievances."
19. This Court in the case of Ikram Bari and 524 others v. National Bank of Pakistan through President and another 2005 SCMR 100 while dilating upon the status of the Go down Staff/daily wages employees whose services were terminated although appointed by the bank, their salaries were being paid by the borrowers/loanees had ruled in the terms with reference to the facts of the said case duly reflected in the head notes which read as under:--- "(a) Service Tribunals Act (LXX of 1973)--- ---Ss. 2-A & 4---Termination from service---Go down staff / daily wages employees---Status--- Employees had been working with bank for the past many years on daily wages in various categories---Bank had terminated their services on the ground that although the employees were appointed by the bank yet their salaries were being paid by the borrowers/loanees--- Validity--- As the employees were not selected or recommended by the borrowers/loanees, therefore, on no principle of law and equity, they could be treated to be the employees of the borrowers/loanees--- If the salaries of temporary employees / go down staff or the daily wages employees were debited to the borrowers account that would make no difference since for all practical purposes and legal consequences the employees were placed under the administrative control 'of the bank.
(b) Islamic jurisprudence--- ----Islamic State---Obligations---Islamic Welfare State is under obligation to establish a society, which is free from exploitation wherein social and economic justice is guaranteed to its citizens.
(c) Industrial dispute--- ----Employer and employees---Bargaining strength---Termination from service-I-Godown staff / daily wages employees---Employees had been working with bank for the past many years on daily wages in various categories---Bank had terminated their services on the ground that although the employees were appointed by the bank yet their salaries were being paid by the borrowers/loanees---Validity---No equilibrium of bargaining strength between employer and employees existed---Manner in which the employees had been dealt with by the bank was a fraud on the statute.
(d) Constitution of Pakistan (1973)--- ----Arts. 2-A, 3 & 38---Public administration---Doctrine of good governance---Applicability--- Objectives Resolution, by virtue of Art.2-A of the Constitution, has been made substantive part of the Constitution which unequivocally enjoined that in State of Pakistan the principles of equality, social and economic justice as enunciated by Islam would be fully observed which would be guaranteed as fundamental rights---Principles of policy contained in Art.38 of the Constitution also provide that the State should secure the well-being of the people by raising their standards of living and by ensuring equitable adjustment of rights between employer and employees and provide for all citizens, within the available resources of the Country, facilities for work and adequate livelihood and reduce disparity in income and earnings of individuals---State is obliged under Art.3 of the Constitution, to ensure the elimination of all forms of exploitation and gradual fulfillment of the fundamental principle, from each according to his ability, to each according to his work.
(e) Service Tribunals Act (LXX of 1973)--- ----Ss. 2-A & 4---General Clauses Act (X of 1897), S.24-A--Constitution of Pakistan (1973), Art.212(3)---Termination from service---Go down staff/daily wages employees--- Reinstatement- --Back-benefits, grant of---Employees had been working with bank for the past many years on daily wages in various categories---Bank had terminated their services on the ground that although the .Employees were appointed by the bank yet their salaries were being paid by the borrowers / loanees--- Validity---Supreme Court found it difficult to countenance the approach of the bank that the temporary go down staff and the daily wages employees should be continued to be governed on disgraceful terms and conditions of service for indefinite period---Bank was required under the provisions of S.24-A of General Clauses Act, 1897, to act reasonably, fairly and justly---Any employee being jobless and in fear of being shown the door, had no option but to accept and continue with the appointment on whatever conditions it was offered by the bank--- Service Tribunal had rightly imposed a condition of three years length of service with not more than fifteen days break between the consecutive appointments and termination of service for regularization of service of employees--Such conditions were reasonable and were also in line with the policy decisions taken by the bank itself from time to time---Employees had woken up from deep slumber of more than a decade to seek redress of their grievances, therefore, it would be unfair and inequitable to grant them monitory back-benefits of service from the dates of their initial appointments---Supreme Court directed the bank to issue appointment letters to the employees and previous service rendered by them with the bank would be counted towards retirement/pensionary benefits---Appeal was allowed. Managing Director, Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas and others PLD 2003 SC 724 = 2003 PLC (C.S.) 796; Engineer Naraindas and another v. Federation of Pakistan and others 2002 SCMR 82; The Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh and others PLD 2001 SC 176; Managing Director, Sui Southern Gas Company Ltd. Karachi v. Ghulam Abbas and others 2003 PLC (C.S.) 796; Federation of Pakistan v. Raees Khan. 1993 SCMR 609; Abdul Majeed Sheikh v. Mushafee Ahmed PLD 1965 SC 208; Hameed Akhter Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185; Sh. Muhammad Aslam v. Majeed Nizami, Editor-in-Chief "The Nation" and "Nawa-i-Waqt" and others PLD 2002 SC 514; Syed Imran Raza Zaidi v. Superintending Engineer, Public Health Engineering Circle, Gujranwala-I, v. Government of the Punjab through Secretary, General Administration and Information Department, Punjab Secretariat, Lahore and 2 others 1996 SCMR 645; Muhammad Shafi v. Mushtaq Ahmed 1996 SCMR 856; Ali Muhammad v. Hussain Bakhsh PLD 1976 SC 37; Syed Ali Abbas and others v. Bishan Singh and others PLD 1967 SC 294; Ch. Altaf Hussain v. Chief Settlement CommiQqinner PLD 1965 SC 68; Khawaja Muhammad and 24 others v.
Marduman Babar Kahol and 29 others 1987 SCMR 1543; Mst. Rehmat Bibi and others v. Punnu Khan and others 1986 SCMR 962; Allandino v. Fakir Muhammad and another PLD 1969 SC 582; Federal Bank for Cooperatives v. Ehsan Muhammad 2004 PLC (C,S.) 25 (SC); Federation of Pakistan and another v. Hashim Shah Qureshi 1987 SCMR 156; Muhammad Naseem Ahmad and 18 others v. Miss Azra Feroz Bakht and 58 others PLD 1968 SC 37; Government of Pakistan through Establishment Division, Islamabad and 7 others v. Hameed Akhtar Niazi PLD 2003 SC 110 = 2003 PLC _(C,S.) 212; Muhammad Sohail and 2 others v. Government of N.-W.F.P. And others 1996 SCMR 218; M.A. Rashid Rana v. Secretary Home, Government of Punjab and 18 others 1996 SCMR 1145; Pir Bakhsh v. The Chairman, Allotment Committee and others PLD 1987 SC 145; Dr. Anwar Ali Sahto and others v.
Federation of Pakistan and others PLD 2002 SC 101; WAPDA and others v Khanimullah and others 2000 SCMR 879; Black's Law Dictionary Revised 4th Edn. (1968) p.1518; State Bank of India v. Shri N.
Sundara Money AIR 1976 SC 1111; Marubeni Power Development Project, Karachi v. Gulzar Hussain Shah 1998 PLC 249; General Tyre and Rubber Company of Pakistan Limited, Karachi v. Sindh Labour Appellate Tribunal, Karachi and another 1992 PLC (Labour) 1028 (D.B.) Karachi; Nasir. Jamal and 23 others v. Pak Suzuki Motor Company Limited and 3 others 2000 PLC (Labour) 52 (Karachi); Muhammad Yagoob v. The Punjab Labour Court No,1 and 5 others 1990 SCMR 1539; Sui Northern Gas Pipelines Ltd. v. Abdul Sattar and 2 others 1996 PLC 162 (Lah.); Syed Aftab Ahmed and others K.E.S.C. And others 1999 SCMR 197; Abdul Sattar and another v. Sui Northern Gas Pipelines Limited and others 2001 SCMR 1935; Muhammad Riaz Khan v. Government of N.-W.F.P. And another PLD 1997 SC 397; S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another 1978 SCMR 367, Zafar Iqbal Khan v. Pakistan Agricultural Research Council, Islamabad and others 2003 SCMR 1471, Muhammad Mumtaz and others v. Muhammad Sher 1988 SCMR 1389, Sheikh Muhammad Saleem v. Faiz Ahmad PLD 2003 SC 628, Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153; Mir Muhammad Khan v. Secretary to the Government and others 1997 SCMR 1477; Pakistan v. Public at Large PLD 1987 SC 304 and Habibullah v. Government of the Punjab and 5 others PLD 1980 Lah. 337 ref.
With regard to issuance of the writ by the High Court under Article 199 of the Constitution, in the case of Atchison College Lahore through Principal (supra), the phrase 'person' used in clause (5) of the Article 199 of the Constitution including the status of the Board of Governors of the said College and control of Board of Governors over the college and nature of its composition was intensively dilated upon in view of the relevant provisions of Article 199 of the Constitution and on examination of the undisputed facts of the case; this Court held that appellants college falls within meaning of connotation of the word `person' and the college exercised sovereign and public powers, as well as; being one of the statutory functions of State involved in providing education taking over its management, on amending of the Provincial Rules of Business and the Board of Governors in the circumstances would be regarded as 'person' performing functions in connection with the affairs of the Province notwithstanding the fact that the Atchison College was not receiving any financial assistance from the Provincial Government.
20. As hereinabove noted the Federal Government on the request of Board of Directors of the Pakistan Telecommunication Corporation (PTC) established under the Pakistan Telecommunication Corporation Ordinance, 1990 (XVI of 1990) applied for settlement of a scheme for administration of amount of Rs,500,000 in trust for charitable purposes known as "Telecom Foundation' pursuant to which the Government of Pakistan issued the requisite Notification on 2741-1991 established the trust with the amount to be vested in the treasurer of the Charitable Endowments Act. It provides that the income thereon shall be applied in accordance with the terms of the scheme to be settled under section 5 of the said Act. The aims and objects of the trust created for charitable purposes known as "Telecom Foundation" vide above mentioned Notification have been given in clause 2 of the schedule to the Notification whereas; functions of the Board of Governors of Telecom Foundation/respondent No,29 has been described in clause 5.
In view of clause 5(1)(ii) of the Notification it was argued by the appellant's learned counsel that "Telecom Foundation' was competent to enter into agreement, engagements, arrangements and execute necessary documents, pursuant to which agreement dated 29 November, 1992 was executed between Management of the Overseas Telecommunication Region, Islamabad and the Management of Telecom Foundation hereinafter referred to as `Foundation' undertook to provide manpower for the operation of International Gateway Exchange, for the night shifts for a period of 89 days, as well as; for other services for operation of the said Exchange. Accordingly, as per case of the appellants in accordance with the terms and conditions of this agreement, manpower was supplied by the Foundation to the PTC/PTCL of the Operators/private respondents for purpose of rendering service in the International Gateway Exchange for the specified periods under the contracts executed with each of the appointees. It is pertinent to note that vide Notification dated 27-11-1991 by means of which the 'Foundation' for charitable purpose was established is clearly reflected from the aims and objects of the trust having substantial nexus to the purposes of the trust reproduced hereinabove as contained in clause 2 of the schedule to the Notification and the competence of the Foundation to enter into contracts, engagements etc., to execute necessary documents; obviously could not be beyond the specified aims and objects of the trust detailed in the body of the Notification which by no means and stretch could embrace execution of an agreement/contract to supply manpower of Operators to run the international Gateway Exchange rather; in defiance to the aims and objects of the trust, the agreement in question for supplying manpower was execute& between the Foundation and the management of the Overseas Telecommunication Region, Islamabad/appellant No,2 apparently has been a device to deprive the private respondents from their lawful guaranteed and secured rights under the law for the time being in force who had been employed on daily wages for specified periods mentioned hereinabove rendered them from time to time to serve as Operators in the International Gateway Exchange as compared to the other Operators similarly placed, regularized in due course of working on permanent basis against such posts. Moreover, the execution of the agreement between the Foundation and the management of the appellant No,2 not only amounted to frustrate the aims and objects of the trust created for the charitable purposes has been an act on the part of the above-said parties of committing fraud on the statute aimed at to deprive the respondents discharging their duties and serving as Operators in the International Gateway Exchange appointed from the years, 1992 to 2002 on contract basis for the specified periods subject to their reappointment/renewal of contracts referred in para. No,16 supra.
' On coming into force of the Pakistan Telecommunication Corporation Act, 1991 all assets and liabilities of the Telegraph and Telephone Department including the services relating to the Telecommunication, its maintenance, all contracts made and all liabilities incurred by the Telegraph and Telephone Department on the commencement of the Act stood transferred to the Corporation established under section 3 by virtue of provisions of sections 6 and 12 of the Act whereas; section 9 of the said Act provides that notwithstanding anything contained in any law, contract, or agreement, or in the conditions of service all departmental employees on the establishment of the Corporation shall stand transferred to the Corporation on the same terms and conditions to which they were entitled immediately before such transfer subject to disciplinary action against any such employee by the Corporation whose terms and conditions shall not be varied by the Corporation to his disadvantage. Thus, evidently the rights of the service of the employees of the defunct Telegraph and Telephone Department were secured by the provisions of section 9 of the Act though they have been transferred to the Corporation notwithstanding anything contained in any contract or agreement and any law. Similarly on promulgation of the Pakistan Telecommunications (Re-Organization) Ordinance, 1996, the terms and conditions of service of employees of the Corporation transferred to PTCL pursuant to subsection.(2) of section 35 and their service rights have been guaranteed by the Federal Government including pensionary benefits of the Transferred Employees under section 36 of the Ordinance on repeal of the Pakistan Telecommunication Corporation Act, 1991. On the coming into force of the Pakistan Telecommunication (Re-Organization) Act, 1996 the terms and conditions of the service of the employees transferred to the PTCL have been fully secured by the provisions of section 36 of the Act guaranteed by the Federal Government including the pensionary benefits of the transferred Employees whereas; notwithstanding anything contained in the Act all orders made actions taken etc., have been duly saved by subsection (2) of section (59) of the Act.
The brief survey of various provisions of the Pakistan Telecommunication Corporation Act, 1991 and the Pakistan Telecommunication (Re-Organization) Act, 1996 besides the other provisions as contained in these Acts clearly spell out that the Federal Government has retained and been vested with substantial and effective control over the activities of the Corporation during its existence and succeeded by the PTCL on coming into force of the Pakistan Telecommunication (Re-Organization) Ordinance, 1996 and finally coming into force of the (Act of XVII of 1996) except the functions and activities of the PTCL falling within its exclusive domain as envisaged by various provisions of the Act. Therefore, from the various provisions of the above-said two Acts out of which reference has been made to some Of the relevant provisions of both the Acts unequivocally and without any exception speak about the facts that by dint of the nature and sensitivity of the subject, Telecommunications always remained one of the prime State subject regulated previously by the Telegraph Act, 1885 (XIII of 1885) and the Wireless Telegraphy Act, 1933 (XVII of 1933).
Subsequently after a long span the functions, etc., relating to Telecommunication vesting in the Federal Government subject to specific limitations as provided by various provisions of the Pakistan Telecommunication Corporation Act, 1991 were transferred and conferred upon the PTC and finally to PTCL as licensees mentioned above, therefore, without even referring to the case in hand it can safely be said and concluded that the employees of the erstwhile Telegraph and Telephone Department transferred to the Corporation as above-said under the relevant provisions of the Pakistan Telecommunication Corporation Act, 1991 and later on succeeded by the PTCL discharging F their functions and duties in the International Gateway Exchange as Operators have 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 Article, 199 of the Constitution hence; similar duties and functions in the International Gateway Exchange being discharged by the private respondents as Operators cannot be distinguished and to say that the same does not relate to the affairs of the Federation though conferred upon the Corporation and finally upon the PTCL. Thus, having examined the proposition involved in the case in the light of the dictums and the ratio of the above quoted reported judgments of this Court, as well as; the composition of the Board of Directors of then Corporation under the repealed Act and the constituted authority of the PTCL referred to above; the Board of directors under the Act had an effective rule in the functions of the then Corporation and the Authority of PTCL relate to the functions being previously performed and discharged by the Telegraph and Telephone Department under the repealed Acts. The Chairman of the Board was to discharge to one of the responsibilities of the State on the subject including the directors, besides all to be appointed by the Federal Government not more than 11, of whom not less than two shall be professional Telephone Engineers constituted under section 4 of Act (XVIII of 1991) and by virtue of provisions of subsection (1) of section 4, the general direction and administration of the affairs of the Corporation vested in the Board which may exercise all powers and do all acts which may be exercised or done by the Corporation. Similarly, the Pakistan Telecommunication Authority invested with an effective rule over the functions of the PTCL and exercisable by such Authority as envisaged by sections 4 and 5 of the Pakistan Telecommunication (Re-Organization) Act, 1996 headed by its Chairman with its constituting directors and all to be appointed by the Federal Government under section 3 of the Act relating to the Telecommunication undisputedly is the subject which pertain 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 falls within the context of 'person' as defined in clause (5) of the Article 199 of the Constitution, therefore, for the above reasons the grievance of the private respondents was amenable to the writ jurisdiction of the High Court. The claim of the appellants that the private respondents are the employees of the Foundation which is an 'industrial establishment' and are 'workman' as defined in the relevant provisions of the I.R.O., 2002 and as given in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 in view of the, above discussion, relating to the issuance of the writ by the High Court, seems to us not relevant to be dilated upon nor for the redressal of their grievance made in the writ petition which substantially pertain to the contention of discrimination, can hardly be dealt with under the Labour Laws. Undisputedly, the crux of the case of the private respondents has been that they are 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 the Exchange apparently amounts to have been grossly violated as against the guaranteed rights under Articles 2-A, 4, and 25 of the Constitution by depriving them of their emoluments besides all other service benefits etc., described in paragraph No,2 of the writ petition being paid to other Operators performing service in the said Exchange and similarly placed and, therefore, discriminatory treatment has been meted out to the writ petitioners employed on daily wages and not regularized despite having rendered service for a period of more than 2 years as contract employees renewed from time to time mentioned in para. No,16 (supra), therefore, the impugned judgment is unexceptionable irrespective of the status of the private respondents be that of a 'worker' or a 'civil servant' or the `contact employees' having no nexus to the maintainability of the writ petition on the ground of discrimination meted out to them.
' Thus, for the above reasons this appeal having no substance is dismissed, leaving the parties to bear their own costs.