' SHAHID ANWAR BAJWA, J.--- For reasons to be recorded later, this Constitutional Petition was dismissed vide short order announced in Court on 1-4-2010.
2. Facts giving rise to the petition, as pleaded in the petition, are that the petitioners were removed from employment of Pakistan International Airlines Corporation (hereinafter referred to as the Corporation), under MLO No,52 of 1981 without assigning any reason and without having any resort to any disciplinary proceedings. However, subsequently in 1989 a Review Board was constituted by the Federal Government to scrutinize cases of persons removed between 1977 and 1988 on account of political victimization. The petitioners approached the Review Board and it is stated in the petition that Review Board recommended that they be reinstated in service by giving seniority and full back-benefits. However, recommendation of the Review Board, it is alleged, were tampered with by the Corporation and consequently the petitioners were only re-employed rather than reinstated. All this occurred in 1990. It is stated in the petition that on 13-4-2009 legal notice was issued to the respondent-Corporation but to no avail. With the petition a copy of an application filed by one Muhammad Akbar Khan and others in the Supreme Court of Pakistan, in C.P.L.A. No,22 of 1995 was also filed where in para (b) it was stated that the petitioners in that petition were to be re-employed on the posts held by them at the time of termination of employment and thereafter they were to be allowed original level of seniority in the pay group on re-employment. It is further stated in the petition that in 2009 about 250 employees were taken in the employment of the respondent's Corporation by way of reinstatement and consequently it was prayed in the petition as under:---
(a) To direct the respondents to allow the benefits of reinstatement in service of the petitioners with full back financial benefits as has been done in the case of 250 dismissed employees recently reinstated.
(b) The cost of the suit.
3. Learned counsel for the petitioners submitted that the petitioners are entitled to the same relief as was given to 250 or so persons in terms of the provisions contained in the Sacked Employees (Reinstatement) Ordinance, 2009 issued by the President on February 9, 2009. He further submitted that with reinstatement of such persons a fresh cause of action has arisen. Lastly he submitted that since the matter pertains to salary and financial benefits of the employees it never became stale and can be raised at any time.
4. Mr. Shafqat Ali Shah Masoomi, learned counsel for the Corporation submitted that firstly writ petition is not maintainable for the reason that Pakistan International Airlines Corporation does not have statutory rules. In this regard he relied upon judgment of the Honourable Supreme Court announced on 12-3-2010, in the case of Pakistan International A irlines Corporation v. Tanweer-ur- Rehman, Civil Appeal No,172-K of 2009. Learned counsel further submitted that cause of action if any accrued to the petitioners in 1990 and this petition has been filed after lapse of almost 20 years. Therefore, the petition was severely hit by laches.
5. We have considered the submissions made by the learned counsel and have also gone through the record. First objection by the learned counsel for the Corporation is that the petitioners were reemployed in 1990 and now they are claiming benefits in 2009. They have slept in a deep slumber for almost 20 years and therefore, the petition is hit by laches. Response by the learned counsel for the petitioners that since the matter pertained to financial benefits of the petitioners, laches in such-like situation are not attracted. The concept of laches has an old and well established history.
In Halsbury's Laws of England Fourth Edition, Volume 16 page 829-831 the concept is explained as under:--- "(925) The defence of laches.--- A plaintiff in equity is bound to prosecute his claim without undue delay. This is in pursuance of the principle which has underlain the Statutes of Limitation, vigilantibus et non domientibus lex succurrit. A Court of equity refuses its aid to stale demands, where the plaintiff has slept upon his right and acquiesced for a great length of time. He is then said to be barred by his laches. The defence of laches is, however allowed only where there is no statutory bar. If there is a statutory bar operating either expressly or by way of analogy, the plaintiff is entitled to the full statutory period before his claim become unenforceable; and an injunction in aid of a legal right is not barred until the legal right is barred , although laches may be a bar to an interlocutory injunction.
(926) The nature of laches.--- In enacting a statute of limitation the legislature specifies fixed periods after which claims are barred; equity does not, however, fix a specific limit, but considers the circumstances of each case.
' In determining whether there has been such delay as to amount to laches, the chief points to be considered are:-
(1) Acquiescence on the plaintiff's part; and
(2) Any change of position that has occurred on the defendant's part. Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the plaintiff has become aware of it. It is unjust to give the plaintiff a remedy where, by his conduct, he has done that which might fairly be regarded as equivalent to a waiver of it; or whereby his conduct and neglect, though not waiving the remedy, he has put the other party in a position in which it would not be reasonable to place him if the remedy where afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches.
(927) Acquiescence as an element in laches.--- The chief element in laches is acquiescence, and sometimes this has been described as the sole ground for creating a bar in equity by the lapse of time. Acquiescence implies that the person acquiescing is aware of this right and is in a position to complaint of an infringement of them.
' Hence acquiescence depends on knowledge, capacity and freedom. As regards knowledge, persons cannot be said to acquiesce in the claims of orders unless they are fully cognizant of their right to dispute those claims. Where a plaintiff is kept in ignorance of his cause of action through the defendant's fraud, time begins to run only from the time when the plaintiff discovers the truth or ought reasonably to have done so. It is not necessary, however, that the plaintiff should have known the exact relief to which he was entitled; it is enough that he knew the facts constituting his title to relief. As regards capacity, laches is not imputed while the party is a minor or is mentally disordered. As regards freedom, a person does not acquiesce while he is subject to such circumstances of undue influence or other pressure as to deprive him of the ability to give a true consent, and laches is not imputed until he is released from the position in which he is placed by these circumstances. "
6. A perusal of the above indicates that foundation of principle of laches, jurisprudentially speaking, is the same as that of statutes of limitation. However, in contradistinction to limitation where statute fixes the period for pursuing the claim, equity resort to consideration of the circumstances and two circumstances are critical firstly, acquiescence on part of the complainant and secondly, any change of position that has occurred on part of the defendant. Acquiescence would be sufficient when it is found that the complainant/petitioner was not ignorant of his rights and yet he remained inactive. Even if the petitioner is ignorant of his rights if as a reasonable and prudent man, he should have discovered his right, laches necessarily follow. The second aspect is where any change has been made by the defendant/respondent in the intervening period.
7. In Abrar Ahmed Khan v. Sindh Labour Appellate Tribunal and 2 others, PLD 1997 Kar.
444. Constitutional petition was dismissed being barred by laches in a matter where the petition was filed on 24-4-1996 impugning an order passed by the Labour Appellate Tribunal on 28-9-1992 which order was challenged in earlier petition and that petition was dismissed for non-prosecution in 1994.
8. In Iqbal and others v. Government of Sindh, through Secretary Home Department, Karachi and others, PLD 2007 Kar. 335, an advertisement for recruitment was placed in newspapers on 4-5-1995 and the petitioners applied for the post of A.S.-I. They cleared physical test and were asked to appear in written test. All the petitioners claimed that they had also cleared it as well as interview and viva voce and that their names appeared in the final merit list. However, the list was kept secret and persons of choice had been appointed ignoring the merit list. Writ petition was filed in 2007. The High Court observed as under:--- "The petitioners have failed to produce any documentary evidence to show that they have continuously approaching the authorities for their appointment and at no point of time have abandoned their right. These petitions are filed after about 12 years from the date of advertisement.
We are conscious of the fact that laches alone is not sufficient to dismiss the petitions if the petitioners have otherwise a good case on merits. In absence of a bar of limitation, the period within which such remedy is to be sought is to be reasonable one and element of due diligence is to be kept in mind. The important fact is that delay should never be such as to generate a belief or situation of abandonment of the right because, then, vested rights come into operation and cannot be deviated from. Question of laches in petitions is always considered in the light of conduct of the person invoking the constitutional jurisdiction of High Court. The petitioners have to explain the reasons for not approaching the Court within reasonable time and absence of any cogent explanation, the interference can be refused on the ground of laches."
9. In Eastern Pakistan Railway Workshop Employees' League v. Chairman, East Pakistan Railway Board PLD 1968 Dacca 681, the union claimed to be a registered trade union and it was registered in 1962. It was claimed that it obtained recognition from the employer in May, 1963 and continued to represent the employees till June, 1965 when order was passed by the employer withdrawing recognition granted to the union. Writ petition was filed in 27-2-1967. In order to explain the delay in approaching the High Court, the union stated that another petition on the same line had been filed by another Union and President of that Union and this petitioner was the same and the petitioner union decided to await result of that petition. Writ petition of the other union was allowed in 1966 and thereafter matter was taken to the Supreme Court and after decision of the Supreme Court, this writ petition was filed. The High Court observed as under:--- "There is another important aspect of the case. The petitioner has challenged before us the validity of an order passed on 8-6-1965. The explanation that the petitioner has given to explain the delay in approaching this Court appears to us wholly unsatisfactory. The decision dated 18-6-1966 in Writ Petition No,317 of 1966 is applicable only to that case, and even in the case had been regarded as a test case by the petitioner as alleged by it, there was no reason why it did not approach this Court immediately the said Writ Petition had been disposed of. We may add that the explanation that the petitioner waited because it regarded Petition No,317 of 1966 as test case is itself unsatisfactory. The fact remains that the petitioner approached this Court for the first time on 27-2-1967 against the impugned order dated 8-6-1965. In the meantime as the affidavit of the respondents indicates things have changed and EPREL, now claims to be a Trade Union representing the workers of the entire East Pakistan Railways irrespective of any distinction between the workers of the open line and those of the workshops, and this appears to be supported by the constitution of EPREL, that has been produced before us on behalf of the respondents. We should not, however, be understood to mean that we have expressed any opinion one way or the other as to the validity of such claim of EPREL. We, therefore, think that the Rule should be discharged on the ground of inordinate delay as well."
10. In Allah Nawaz Shaikh v. Punjab Labour Appellate Tribunal Lahore and another 1996 PLC 297, writ petition had been dismissed by the High Court on the ground of laches because there was a lapse of 13 months and the Supreme Court concurred with the findings of the High Court. However, in this case the Supreme Court also went to merits and dismissed C.P.L.A. On merits also.
11. Muhabbat Ali v. Province of Punjab and others 1995 PLC 667, facts were that the Service Tribunal did not entertain appeal of the petitioner. Thereafter Grievance Petition was dismissed by the Labour Court vide order dated 17-2-1993. Constitution petition was filed on 8-5-1994 and it was observed that "in service matters delay of more than 6 months would normally by sufficient to disentitle relief in the constitutional jurisdiction".
12. L.D.A. Through Director-General and another v. N.I.R.C, through Chairman and 49 others 2003 PLC
320. The petition was held to be badly suffering from laches. In this case order of the NIRC was passed on 19-4-2002 and petition was filed in January, 2003.
13. Above case-law indicate the position of the law in respect of laches to be as follows:---
(1) A petitioner is bound to prosecute his claim without undue delay because equity refuses its aid to stale demands if a petitioner who has slept upon his right and has acquiesced for a great length of time.
(2) In deciding the question of laches two things weigh with the Court firstly, acquiescence of petitioner and secondly change of I position that has occurred on respondent's part.
(3) Question of laches is to be always considered in the light of ID conduct of the person invoking the constitutional jurisdiction of High Court.
(4) It is for petitioner to explain reasons for not approaching High Court within reasonable time.
(5) For acquiescence it is not necessary to prove that the petitioner had knowledge of his right. It would be sufficient to establish that the petitioner could have discovered the truth or have reasons to have done so.
(6) As far as change in defendant's position is concerned, it is only such change which has resulted in causing a delay on part of the petitioner in bringing his action.
(7) In service matters delay of more than 6 months would be normally fatal to the claim of the petitioner.
14. Regarding change in the position of the employer, the learned counsel submitted that about 250 employees had been reinstated by the Corporation in early 2009 and therefore, petitioners also deserved to be reinstated. In our view the argument is misconceived. 250 employees who were re-instated were re-instated in terms of the provisions contained in the Sacked Employees (Reinstatement) Ordinance 2009. This Ordinance contained definition of a person in the corporation service in the following words:- "(a) "person in corporation service": means a person who was appointed in a corporation, organization or autonomous or semiautonomous body, established by or under a Federal law or owned or controlled by the Federal Government, during the period from the 1st day of November, 1993 to the 30th day of November, 1996 (both days inclusive) and was dismissed, removed or terminated from service or given forced golden hand shake during the period from the 1st day of November, 1996 to the 31st day of December, 1998 (both days inclusive);"
15. A bare reading of the definition indicates that this Ordinance is applicable only to employees who fall within the very limited category i.e, recruited during November, 1993 to November, 1996 and removed during November, 1996 to December, 1998. It may be noticed that the word used between the two described periods, is 'And'. Therefore unless an employee of a corporation concurrently meets both these conditions he is not entitled to the benefit of the Ordinance. Benefits given by the Ordinance were given by a Statute. None of the petitioner falls within the scope of the definition as quoted above. They were removed in 1982 and re-employed in 1990. Moreover they were not even sacked employees in 2009 when the Ordinance was promulgated. Therefore the argument of the learned counsel is misconceived hence repelled.
16. Learned counsel for the respondent Corporation relied upon the case of Tanweer-ur-Rehman (supra). The Honourable Supreme Court in that case observed as under:--- "(19) However, this question needs no further discussion in view of the fact that we are not of the opinion that if a corporation is discharging its functions in connection with the affairs of the Federation, the aggrieved persons can approach the High Court by invoking its constitutional jurisdiction, as observed hereinabove. But as far as the cases of the employees, regarding their individual grievances, are concerned, they are to be decided on their own merits namely that if any adverse action has been taken by the employer in violation of the statutory rules, only then such action should be amenable to the writ jurisdiction. However, if such action has no backing of the statutory rules then the principle of Master and Servant would be applicable and such employees have to seek remedy permissible before the Court of competent jurisdiction.
(25) Thus, in view of discussion made hereinabove, we are persuaded to hold that although the appellant-Corporation is performing function in connection with the affairs of the Federation but since the services of the respondent-employees are governed by the contract executed between both the parties, as is evident. From the facts narrated hereinabove, and not by the statutory rules framed under section 30 of the Act, 1956 with the prior approval of the Federal Government, therefore, they will be governed by the principle of Master and Servant."
17. In R.T. Janjua v. National Shipping Corporation PLD 1974 SC 146. The logic and the rationale behind requiring existence of statutory rules for the purpose of maintaining of constitutional petition by an employee of a corporation or an organization owned and controlled by the Government was explained and R.T. Janjua's case was relied upon by the Supreme Court in Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi PLD 1984 SC 170. It was laid down by the Supreme Court in the later case as under:- "It is, therefore, evident that where the conditions of service of an employee of a statutory body are governed by statutory rules, any action prejudicial taken against him in derogation or in violation of the said rules can be set aside by a writ petition. However, where his terms and conditions are not governed by statutory rules but only by regulations, instructions or direction, which the institution or body, in which he is employed, has issued for its internal use, any violation thereof will not, normally, be enforced through a writ petition.
' In this view of the matter, the holding of a "public office" by an employee is not all that crucial because, as rightly pointed out by Qazi Muhammad Jamil, learned counsel for the respondent in Civil Appeal No,17 of 1981, this condition is relevant only in cases where in a writ in the nature of quo warranto is sought whereby a person holding a public office within the territorial jurisdiction of a High Court may be required to show the authority of law under which he claims to hold the said public office. Thus, apart from the question whether the aggrieved employee of a statutory body was a holder of a "public office", the more important question will be whether the conditions of his service were governed by any statute and/or a statutory rule, if so, whether the statute or statutory rule was disregarded while taking the action which is impugned by him."
18. This judgment of the Supreme Court has remained unshaken in spite of a lapse of a quarter century and has been reiterated by the honourable Supreme Court in Tanveer-ur-Rehman's case (supra). It is no one's case that PIA has statutory rules and it is for this reason also that this writ petition is dismissed as it is not maintainable. These are our reasons for which this Constitutional Petition was dismissed by short order dated 1-4-2010.