1. ' MAQBOOL BAQAR, J.--- The petitioner who was serving as a Junior Accounts Clerk in BPS-11 with respondent No,2 and had served the said Organization for 20 years along with several such employees has opted for Voluntary Separation Scheme (V.S.S.) offered by respondent No,2 in November, 2007 in terms whereof the employees were offered various payments including Severance Pay, Medical Benefits, Leave Encashment, Housing Allowance and Provident Fund. In case of the petitioner, the Estimated Settlement amount came to be Rs,1,352,829.49 and the estimated monthly pension came to be Rs,5280.00. It is an admitted position that the petitioner has served respondent No,2 for full 20 years and the above amounts were calculated on that basis. The grievance of the petitioner, is that, though the above amounts were contained in the "VSS Calculation Worksheet" provided to him by respondent No,2 however, instead of the above admitted and offered amount which, as shown in the said worksheet, were rightly calculated on the basis of prescribed criteria i.e, on the basis of the petitioners twenty (20) years of service, but the petitioner was paid only an amount of Rs,1292218 excluding the monthly pension and that such amount was calculated on the basis of 16 years service instead of his full period of service of 20 years and thus four years of his service were not taken into account on the pretext that such period was an ad hoc period.
2. ' Mr. Saulat Rizvi, the learned counsel for the petitioner submits that the deduction of the amount is not only contrary to the terms and conditions of the scheme, but is also inconsistent with the calculations contained in the relevant calculation worksheet provided to the petitioner. He further submits that, on the one hand, the ad hoc period of service of the petitioner was counted for the purpose of his promotions and on the other, the petitioner is deprived of the benefits of the scheme, as offered and the respondents have excluded the ad hoc period of the petitioners service illegally, dishonestly and in breach of the scheme offered and commitment made to the petitioner.
3. The learned counsel further submits that the act of the respondent is also discriminatory as in the cases of several of Other employees placed in the same position, not only the ad hoc period of service, but also such periods during which those employees served as temporary employees were taken into account for the purpose of calculating V.S.S benefits. He refers to the statement filed by him in pursuance of this Court order, containing names of seven formal employees of respondent No,2, whose period of ad hoc service has been taken into account for the purpose of calculating their length of service and calculation of benefits under the scheme.
4. ' On the other hand, Mr. Mehmood Hussain Siddiqui, learned counsel for respondents Nos.2 to 5 has today filed a counter-affidavit in reply to the said statement, wherein the veracity of the statement has not been challenged however, the deponent has questioned the very maintainability of the petition. Mr. Siddiqui submits that the petitioners being a workman as defined in Industrial Relations Ordinance, 2002 (IRO 2002), ought to have sought their remedy before a Labour Court. The learned counsel refers to subsection (3) of section 46 of the I.R.O. 2002, which provides for adjudication and determination of the grievance of a worker, by Labour Court. He submits that at the relevant time IRO 2002 was in force which since then has been repealed and replaced by IRA 2008, section 41 whereof also provides for determination and adjudication of a grievance of worker(s) by Labour Court. The learned counsel submits that the present petition involves factual controversies which are not amenable to the constitutional jurisdiction of this Court. He further submits that since the matter relates to the terms and conditions of service, on this ground also the petition is not maintainable. The learned counsel in support of his contention has relied upon the case of Nizamuddin and another v. Civil Aviation Authority and 2 others 1999 SCMR 467, wherein the honourable Supreme Court of Pakistan has held that "If in a particular case both the parties admit the factual aspect which give rise to the dispute, and the Court feels that the matter is of such an urgent nature that the very remedy would get frustrated, if the aggrieved party is directed to seek redress through alternative remedy available under the law, then in that case it would be proper for the Court to entertain the writ petition. It is further observed that "If in every contractual matter giving rise to enforcement of contractual obligation or a dispute which can be redressed through other remedy available under the law. Writ petitions are entertained, then this would defeat that very purpose of law and which competent Courts are established and vested with jurisdiction under the law". Mr. Siddiqui also refers to the case of Tanveer-ur-Rehman v. Pakistan International Airline Corporation 2009 PLC (C.S.) 28, wherein a D.B. Of this Court has held that "as an ideation judicial review has always been a dynamic concept; that where an employee only complains of breach of contract and cannot establish violation of law or the standards found in public or administrative law, the remedy available for the employee is an action of damages; and that the employer in addition or in alternative will also have the right to pursue the claim for damages in context of the particular case."
5. ' The learned counsel in support of his contention has also relied upon the judgment in the case of Muhammad Dawood and others v. Federation of Pakistan and others 2007 PLC (C.S.) 1046, wherein a Division Bench of this Court held that "In case where the grievance of the petitioner was not founded, upon any violation of law but merely upon violation of a condition contained in the contract of employment, the rule of Master and Servant would apply and petitions would not be entertainable."
6. ' In rebuttal Mr. Saulat Rizvi learned counsel for the petitioner submits that in the first place there is no factual controversy in this case. It is an admitted position that the petitioner was offered a lump sum amount of Rs,13,52,829.49 along with monthly pension of Rs,5280. Such amount was calculated on the basis of petitioner's 20 years of service, including the ad hoc period of his service.
7. It is also not rebutted by the respondents that in respect of certain employees placed in the same position as the petitioner was, ad hoc period of service has been taken into account for the purpose of calculating benefit under the V.S.S. Learned counsel refers to para-17 of the memo of petition, wherein the petitioner has alleged discrimination on the above basis. The learned counsel submits that in the first place the petitioner is neither a workman nor a worker, secondly, the petition is even otherwise maintainable, as he has successfully established the case of discrimination against him. Mr. Rizvi in support of his contentions regarding the maintainability of the petition has relied upon the case of Pakistan Telecommunication Company Limited v.
8. Muhammad Zahid and 29 others 2009 PLC (C.S.) 1001, wherein the Honourable Supreme Court of Pakistan, whilst observing that "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 pertains to the contention of discrimination, can hardly be dealt with under the Labour Laws" held that "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 `contract employees' having no nexus to the maintainability of the writ petition on the ground of discrimination meted out to them, dismissed the present respondents appeal." Mr. Saulat Rizvi also submitted Photostat copy of order dated 22-12-2009 passed in C.P.No,D-707 of 2009 wherein a Division Bench of this Court has disposed of the petition of certain employees of the present respondents in respect of the VSS, as follows:--- "We are of the considered view that the petitioners were discriminated and they in law were qualified to avail the benefits of VSS Policy of 2008 which allowed as employee to opt for retirement if he completes the length of 20 'years of service. The petitioners were appointed in 1980 and on the date when they opted for retirement they had the length of service of 20 years and were entitled to retirement benefits. We direct the PTCL Management to disburse the retiring benefits to the petitioners within one month and report compliance through Additional Registrar of this Court."
9. ' Mr. Rizvi further submits that Labour Court has been established/constituted under section 44 of the I.R.O. 2002, which also prescribes the functions and powers of such Court, as follows:--
(4) A Labour Court shall---
(a) adjudicate and determine an industrial dispute which has been referred to or brought before it under this Ordinance;
(b) enquire into or adjudicate any matter relating to the implementation or violation of a settlement which is referred to it by a Provincial Government;
(c) try offences under this Ordinance and such other offences under any other law as the Provincial Government may, by notification in the official Gazette, specify in this behalf; and
(d) exercise and perform such other powers and functions as are or may be conferred upon or assigned to it by or under this Ordinance or any other law.
10. ' He submits that from the foregoing it is evident that the claim or disputes of a retired workman or worker does not fall within the purview of Labour Courts. The learned counsel further submits that the Labour Courts, apart from the functions and powers as spelt out by section 44 of IRO 2002 does not have any other powers or functions, even under the West Pakistan (Standing Orders)
11. Ordinance, 1968, as the same prescribes remedy under section 25(A), or section 46 of IRO 2002 only to the dismissed, removed, retrenched or discharged workmen and do not provide any remedy to a retired employee or workman.
12. ' We have heard the learned counsel for the parties and perused the record.
13. Without going into the controversy as to whether or not the petitioner is a workman or a worker or as to whether or not the grievance of the petitioner is amenable before the Labour Court, we would hold that the petition is maintainable on the ground of discrimination alone, as admittedly the petitioner has been discriminated against with regard to the calculation of his length of service, as period of his ad hoc service has not been, taken into account for the purpose of the pensionary benefits under VSS, whereas such benefit has been extended to the other such employees. It is an admitted position that the Calculation Worksheet under the scheme, as furnished to the petitioner contained calculation of the benefit on the basis of his 20 years service whereas payment has only been made on the basis of 16 years service on the pretext that the remaining four years of his service, being rendered on ad hoc basis, cannot be availed for any 'of' the benefits to the petitioner, as noted above. In case of other such employees the above ad hoc period has been taken into account and benefit has been extended to such' employees for the period of their ad hoc service also.
14. ' Reverting back to the maintainability of the petition, we may observe that in the case of Nizamuddin and another v. Civil Aviation Authority and 2 others (supra) relied upon by the learned counsel for the respondents himself, the Honourable Supreme Court has held that If in a particular case both the parties admit the: factual aspect which give rise to the dispute and the Court feels, that the matter is of such an urgent nature that the very remedy would .Get frustrated, if the aggrieved, party is directed to seek redress through alternative remedy available under the law, then it would be proper for the Court to entertain the writ petition. In the case of Tanveer-ur- Rehman v. Pakistan International Airline Corporation (supra), which case is also relied upon by the learned counsel for the respondents, a Division Bench of this Court has held that as an ideation judicial review has always been a dynamic concept; that where an employee only complains of breach of contract and cannot establish violation of law or the standards found in public or administrative law, the remedy available for the employee is an action of damages; and that the employer in addition or in alternative will also have the right to pursue the claim for damages in context of the particular case whereas in the case of Muhammad Dawood and others v. Federation of Pakistan and others (supra) also relied upon by the counsel for the respondents, a Division Bench of this Court has held that in case where the grievance of the petitioner was not founded upon any violation of law but merely upon violation of a condition contained in the contract of employment, the rule of Master and Servant would apply and petitions would not be entertainable.
15. The legal principle enunciated through the afore-said case-law is, firstly that where the facts are not controverted and the matter is of such an urgent nature that the very remedy would get frustrated, if the aggrieved party is directed to seek redress through alternative remedy available under the law, then it would be proper for the Court to entertain the writ petition. Secondly, in case where the grievance of an employee is merely in respect of a breach of contract and no violation of law or the standards found in public or administrative law is established, the remedy available to the employees is an action of the damages and further in such case rule of Master and Servant will apply and the petition would not be entertainable. However, as discussed above, in the present case, the petitioner has well established case of discrimination against him and in case relief of his due payment is refused to him in the present proceedings, which payment is urgently required for subsistence, putting him and his family in distress as the petitioner has been deprived of such payment since the year, 2007.
16. ' Following the above principle and the law laid down by the honourable Supreme Court of Pakistan in case of Pakistan Telecommunication Company Limited v. Muhammad Zahid (supra) relied upon by the learned counsel for the petitioner, wherein the honourable Supreme Court whilst observing that the claim of the appellants that the private respondents are the employees of the Foundation which is an industrial establishment and are workmen 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 and upholding the respondents plea of discrimination. Further held with the impugned judgment before is unexceptional, irrespective of the status of the private respondents be that of a 'worker' or a 'civil servant' or the 'contract employees' having no nexus to the maintainability of the writ petition on the ground of discrimination meted out to them, dismissed the appeal. We are of the view that the petition is maintainable, as in the present case also the petitioner has been discriminated against as discussed above, and allow the petition, directing the respondents to pay to the petitioner the balance amount and monthly pension as claimed by him within one month from today, positively, with a caution that noncompliance of this order shall attract contempt of Court proceedings, against the officers responsible for such non-compliance.