Irfan Saadat Khan, J.--This Constitutional Petition calls into question the refusal of Respondent No. 4, Pakistan Industrial Development Corporation ("PIDC") to accept joining report of the petitioner.
This petition has been filed with the following prayer clauses:-- "A. Declare that the Respondent No. 4 has been acting in sheer malafides and has been arbitrary and in violation of many mandatory duties enshrined in the Constitution of Pakistan as well as service rules as to the extreme case of hardship faced by the petitioner.
B. Direct the Respondent No. 4 to rehabilitate the petitioner from the day on which the petitioner extended letter of joining/repatriation to the respondent, with all prospective and retrospective monitory benefits, honor and dignity.
C. Direct the Respondent No. 4 perpetually not to disturb the petitioner as to her proprietary interests in the job except in accordance with law.
D. Up to the time this petition is disposed off, direct the Respondent No. 4 to release monthly remuneration of the petitioner w.e.f 1st of September, 2006 and if this Hon. Court is pleased to grant relief to the petitioner i.e. her constructive rehabilitation with the Respondent No. 4, to release all the past pays with all heads along with markup at the prevailing rate.
E. Any other relief/ relief deemed fit by this Hon. Court may also be granted".
2. Briefly stated, the facts of the case are that the petitioner was appointed in Grade E-1 by Indus Steel Pipes Limited, a unit of PIDC, on 12.12.1982 and was promoted to Grade E-2 on 10.7.1989 and to Grade E3 in January, 1995. On 28.1.2000 some subsidiary companies, including Petroman, were merged in PIDC and came under the control of the Chairman, PIDC. Thereafter, the Chairman, PIDC, transferred the petitioner and eight other officers, vide letter dated 31.8.2000, to Petroman.
Subsequently, Petroman, which till now was under the Ministry of Industries and Production, became part and parcel of the Ministry of Information Technology, the Respondent No. 1 herein. The Petroman, vide its letter dated 8.10.2003, terminated the services of the petitioner as well as other transferee officers against which the petitioner filed C.P. No. D-1376/2003 before this Court but during pendency of the said petition the respondents intimated the Court that the termination orders were changed and the petitioner and other transferee officers repatriated, to their parent organization and were directed to report to the Chairman, PIDC in this regard. Accordingly, the said petition was not pressed and was dismissed as withdrawn. However, when the petitioner submitted her joining report to the Respondent No. 4, it was declined and she was not allowed to join. Hence, the present petition.
3. Mr. Kazi Abdul Hameed Siddiqui, learned counsel for the petitioner, submitted that Petroman was a subsidiary of the Respondent No. 4, PIDC and the petitioner was an employee of Respondent No. 4, PIDC, and not that of Petroman. She was only transferred on deputation to work in Petroman. He submitted that the petitioner had a lien with the Respondent No. 4, PIDC, and, therefore, she was entitled to rejoin her parent organization and, therefore, the Respondent No. 4 was not justified in refusing her to join. He submitted that the act of Respondent No. 4, is in violation of the provisions of Articles 4 and 14 of the Constitution. The learned counsel also invited our attention to the case of one Waseem Akhter, who was also transferred from Respondent No. 4 to Petroman but was subsequently allowed to join the Respondent No. 4. Thus, according to the learned counsel, this is discrimination with the petitioner and violation of Article 25 of the Constitution. He submits that the petition revolves around one question only i.e. whether the petitioner had a lien with Respondent No. 4 after her transfer to Petroman, or not? In this regard he referred to the definitions of the terms "lien", "absorption", "repatriation", and "permanent transfer". He also invited our attention to Ordinance LII of 1984 and stated that the petitioner had a statutory lien with the Respondent No. 4 and, therefore, the said respondent was not justified in depriving her from her vested right. He also invited our attention to the letter dated 17 November, 2003 wherein it was stated that her employment with Petroman had been terminated . and she was repatriated back to her parent organization. He submitted that PIDC was not justified in not allowing the petitioner to join her duties when she was repatriated by Petroman to her parent organization. In support of his above contentions the learned counsel relied on the following cases:
(i) Muhammad Mubeen-us-Salam and others versus Federation of Pakistan through Secretary, Ministry of Defence (PLD 2006 SC 602),
(ii) Muhammad Mobin-ul-Islam v/s. Federal Government [1998 PLC (CS) 400],
(iii) (Province of West Pakistan v/s. Been Muhammad and others PLD 1964 SC 21),
(iv) Khan Faizullah Khan v/s. Government of Pakistan (PLD 1974 SC 291),
(v) The Lahore Central Co-Operative Bank Ltd. versus Pir Saif Ullah Shah (PLD 1959 SC 210),
(vi) Chairman East Pakistan Development Corporation v/s. Rustam Ali and others (PLD 1966 SC 848)
(vii) Abdul Rehman v/s. Federation of Pakistan [2010 PLC (CS) 692].
(viii) Executive Engineer Lahore v/s. Muzzaffar-ul-Haq (2000 SCMR 656)
(ix) Messrs Rasu Food Industries versus Messrs Pakistan Industrial Leasing Cooperation Limited (2005 SCMR 1643)
(x) Bolan Bank Limited v/s. Capricon Enterprises (1998 SCMR 1961)
(xi) Chairman SLIC v/s. Humuyun Irfan [2010 PLC (CS) 1183]
(xii) Mazhar AU v/s. Federation of Pakistan (1992 SCMR 435)
(xiii) Secretary Education v/s. Wiqar-ul-Haq (2000 SCMR 1780)
(xiv) Dr. Malik Maroof Imam v/s. Federation of Pakistan (SBLR 2008 Sindh 575)
(xv) P.LAC. v/s. Shehzad Farooq Malik (2004 SCMR 158)
(xvi) P.I.AC. v/s. Nasir Jamal Malik [2001 PLC (CS) 890]
(xvii) Mrs. M.N. Arshad v/s. Ms. Naeema Khan (PLD 1990 SC 612)
(xviii) Sher Shah Industries v/s. Government of Sindh (PLD 1982 Karachi 653)
4. Mr. Bilal Khilji, advocate appeared on behalf of the petitioner in C.P. No. D-1412/2006 and adopted the arguments of Mr. Siddiqui. In addition to the cases relied upon by Mr. Siddiqui, Mr. Khilji, also relied on the following cases:
(i) PTCL v/s Muhammad Zahid (2010 SCMR 25),
(ii) Anisa Rehman v/s P.I.A.C (1994 SCMR 2232)
5. On the other hand, Mr. Masood Ahmed Khan, advocate, appeared on behalf of Respondent No. 4 and submitted that this petition is not maintainable as the petitioners were permanently transferred to Petroman and, subsequently, they were terminated. He submitted that though Petroman stated that the petitioners were repatriated to Respondent No. 4 but, after the petitioners were permanently transferred to Petroman, they had no lien over Respondent No. 4. In support of his contentions the learned counsel relied of the following reported judgments: (a)P.I.AC v/s. Tanveer-ur-Rehman (SBLR 2010 SC 303).
(b)Pakistan Telecommunication v/s. Iqbal Nasir (PLD 2011 SC 132).
6. The learned counsel further submitted that the case of Waseem Akhtar is totally different from the case of the petitioners as he was not among the persons who were repatriated and hence there was no discrimination. He, therefore, submitted that the petition, being not maintainable, is liable to be dismissed. Standing Counsel Mr. Saadqat Khan has adopted the arguments of Mr. Masood.
7. We have heard all the learned Counsel at length and have also perused the record and decisions relied upon.
8. Before advancing any further the prime question which firstly has to be considered is that whether the issue raised in the present petitions is amenable to constitutional jurisdiction or not? It is seen from the letter dated 31.08.2000, addressed by Respondent No. 4 to Petroman, that the services of the petitioner was "permanently transferred" from PIDC to Patroman in existing pay & grade with immediate effect. The petitioner was then repatriated back to the parent organization vide letter dated 17.11.2003. However, the petitioner was not granted the permission to join Respondent No. 4. It is seen from the record that Respondent No. 4 vide letter dated 26.03.2004 examined the case of the petitioner at length and thereafter decided that the petitioner may be considered for employment on contract basis in. PIDC Against clear vacancies provided rules of PIDC so allow and subject to the fulfillment of qualification, experience etc. and requirement of the vacancies. Against the said letter the petitioner filed a Constitutional Petition Bearing No. D- 474/2004 before this Court and while deciding the said Constitutional Petition on 14/06/04 the Hon'ble Court has observed as under:-- "The petition pertains to the terms and conditions of service of the employees of PIDC, which is fully owned by the Federal Government employees whereof are admittedly civil servants within the meaning of Section 2 of the Civil Servants Act, 1973. As such this petition is hit by provisions of Article 212 of the Constitution of the Islamic Republic of Pakistan. The petitioners have the alternate remedy as provided for in the Civil Servants Act, but the same has not been availed by them for no justifiable reason.
Accordingly, this petition merits no consideration and is dismissed in limine alongwith the listed applications".
9. The petitioner then approached the Federal Service Tribunal (FST) and the Registrar of the FST abated the appeal on 30.06.2006 by observing as under: "I have been directed to inform the litigants in their respective Service Matters, that pending cases or proceedings, which are not protected or covered by the judgment of the Apex Court dated 27.06.2006 in Civil Appeals No. 792 to 816/2005, etc. shall stand abated and that they i.e. litigants have been mandated by the Apex Court to resort to the competent forums for redressal, of their grievances within 90 days and the bar of limitation provided by the respective laws, shall not operate against them till the expiry of the stipulated period. Further, it may be noticed that as held in 1999 PLC (CS) 1316.
There cannot be two opinions with regard to settled legal proposition that where abatement of appeal/proceedings results us as a consequence of operations of law, such abatement becomes operative ipso facto at once and there is not need or legal requirement for obtaining any formal order or declaration from the said forum or Court being seized of the matter and time wasted before those forums thereafter, cannot be availed of by the concerned party under the guise of "pursuing the matter before competent forum " as in fact after abatement of the proceedings such forum cannot be held to be competent or proper forum. The only corollary pursuant to such discussion is that litigation before incompetent forum does not justify condonation of delay. We are fortified to hold so by relying upon the rules enunciated in the following precedents:
(1) PLD 1983 SC 385 (2) 1975 SCMR 259 (3) 1985 SCMR 333 (4) 1985 SCMR 890 (5) 1991 SCMR 1841 And (6) 1997 SCMR 1167.
You are nevertheless being informed that your cause Appeal Nos. 281 to 285 stood abated w.e.f.
27th day of June 2006".
10.However, thereafter some representation was made before the Hon'ble Supreme Court of Pakistan in the case of some other petitioners and the Hon'ble Supreme Court was pleased to hold that passing of the order by the Registrar, FST, by abating the appeals of the appellants was not in accordance with law and thereafter remanded the case back to the FST. The FST thereafter heard the appeal of the petitioners and vide order dated 26.06.2009 again abated the appeal of the petitioner by observing as under: JUSTICE (R) ABDUL GHANI SHAIKH, CHAIRMAN.--The petitioner has submitted M.P. for passing a judicial order regarding abatement of the appeal.
2. This petition has been filed in view of the Civil Petition No. 722 of 2007 (Raja Riaz vs. Chairman Space and Upper Atmosphere Research Commission, Karachi, reported in 2008 SBLR 40) wherein the Hon'ble Supreme Court has held that Registrar of this Tribunal has no authority to declare that any appeal has abated and that the Tribunal is required to pass separate order in every case after providing an opportunity to the parties keeping in view that observations made by the Hon'ble Supreme Court in the judgment in C.P. Nos. 792 to 816 of 2005 (Mubeen-us Salam and others vs. Federation of Pakistan and others reported in PLD 2006 SC 602 as well as in view of judgment passed in M.P. No. 284 and 285 of 2008, Appeal Nos. 107 and 229(K)(CE)/2006.
3. The petitioner admits that he being an employee of PIDC, which is not a statutory body, is not a civil servant within the meaning of Section 2(1)(b) of the Civil Servants Act, 1973 and therefore the appeal is liable to be abated. Appeal therefore stands abated in view of (Mubeen-us-Salam and others vs. Federation of Pakistan and others in C.P. Nos. 792 to 816 of 2005 reported in PLD 2006 (SC)
602.
M.Ps. Nos. 203, 232 & 233 of 2009 are disposed of accordingly".
11. We were able to lay our hands on the decision reported as Pakistan Red Crescent Society and another Vs. Syed Nazir Gillani (PLD 2005 Supreme Court 806) wherein the Hon'ble Supreme Court of Pakistan observed as under: "12. It may not be out of place to mention here that this Court has consistently held that in the case of an employee of a corporation where protection cannot be sought under any statutory instrument or enactment the relationship between the employer and employee is that of a Master and Servant as enunciated in various judicial pronouncements which still hold the field are as under:--
(i) Chairman of East Pakistan Development Corporation v. Rustam Ali (PLD 1996 SC 848)
(ii) Lahore Central Cooperative Bank Limited v. Pir Saifullah Shah (PLD 1959 SC (Pak) 210); (iii)Shahid Khalil v. P.I.AC Karachi (1971 SCMR 568); (iv)A. George v. Pakistan International Airlines Corporation (PLD 1971 Lah. 748)
(v)Muhammad Umar Malik v. The Muslim Commercial, Bank Ltd. through its President, Karachi and 2 others (1995 SCMR 453); (vi)Habib Bank Limited v. Ziaul Hassan Kazmi (1998 SCMR 60); (vii; Raziuddin v. Chairman, P.I.AC. (PLD 1992 SC 531);
(viii) Nisar Ahmed v. The Director, Chiltan Ghee Mill (1987 SCMR 1836)
(ix)Sindh Road Transport Corporation v. Muhammad Ali G. Khokhar (1990 SCMR 1404)
(x)Agricultural Development Bank v. Muhammad Sharif (1988 SCMR 597)
(xi)Zeba Mumtaz v. First Women Bank Ltd (PLD 1999 SC 1106)
13.We have also examined the case-law as referred to by Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court which is not applicable being distinguishable.
14.The upshot of the above mentioned discussion is that the appeal is accepted and judgment impugned is set aside. The Constitutional jurisdiction as conferred upon the High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan could not have been invoked by the Respondent. The respondent may approach the forum concerned for redressal of his grievance, if so desired".
12. Even in a latest decision given by the Hon'ble Supreme Court of Pakistan in the case of Pakistan International Airline Corp. & others Vs. Tanweer-ur-Rehman & others (SBLR 2010 SC 303) it was observed as under: "Therefore, question for consideration would be as to whether in absence of any breach of statutory provision, the employee of appellant-corporation can maintain in action for reinstatement et. This Court when faced with the same question in the case of Principal Cadet College Kohat and another v. Muhammad Shoab Qureshi (PLD 1984 SC 170), held that "where the conditions of service of an employee of a statutory body are governed by statutory rules, any action prejudical 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 directions, 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". Likewise, in Raziuddin v. Chairman, PIAC (PLD 1992 SC 531), this Court has held that the legal position obtaining in Pakistan as to the status of employees of the Corporation seems to be that the relationship between a Corporation and its employees is that of Master and Servant and that in use of wrongful dismissal of an employee of the Corporation, the remedy, is to claim damages and not the remedy of reinstatement; however, this rule is subject to a qualification, namely, if the relationship between a Corporation and its employees is regulated by statutory provisions and if there is any breach of such provisions, an employee of such a Corporation may maintain an action for reinstatement". It was further held that "the PIAC has the Regulations which have been framed by the Board of Directors of the PIAC, pursuant to the power contained in Section 30 of the Act; however, there is nothing on record to indicate that the above regulations have been framed with the previous sanction of the Central Government or that they were gazetted and laid before the National Assembly in terms of Section 31 of the Act; in this view of the matter, the Regulations cannot be treated as statutory rules of the nature which would be bring the case of the PIAC within the above qualification as to entitle the employees of the PIAC to claim relief of reinstatement on the ground of breach of the statutory provisions." The above view has been reiterated in Habib Bank Ltd. v. Syed Zia-ul-Hassan Kazmi (1998 SCMR 60) and Pakistan Red Crescent Society v. Nazir Gillani (PLD 2005 SC 806). In the last mentioned pronouncement, it has been held that "an employee of a Corporation in the absence of violation of law or any statutory rule could not be press into service the Constitutional jurisdiction or civil jurisdiction for seeking relief of reinstatement in service; his remedy against wrongful dismissal or termination is to claim damages".
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 amendable 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.
20. It was also contended by the learned Counsel for the respondents that writ petition before the High Court is maintainable against a statutory corporation. Reference in this behalf was made to Airport Support Services v. Airport Manager (1998 SCMR 2268), Ramma Pipe and General Mills (Pvt.)
Ltd. v. Sui Northern Gas Pipe Lines (Pvt.) (2004 SCMR 1274) as well as to Aitchison College's case (supra).
It was further observed by the Hon'ble Supreme Court in the aforementioned case as under: "25. Thus in view of discussion made hereinabove, we are persuaded to hold that although the appellant-Corporation is performing functions 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 it 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.
In view of the above conclusion, Civil Appeal Nos. 172-K to 175K, 179-K to 181-K of 2009 (filed by the appellant-corporation) are allowed where-as Civil Appeal Nos. 177-K, 178-K and 1822009 (by the respondent-employees) are dismissed, leaving the parties to bear the own costs'.
13.In view of the above settled proposition of law and in view of the admitted position that there are no statutory rules of Respondent No. 4 whether the petitioners can claim any lien in respect of their services from Respondent No. 4 where their terms & conditions are not governed by statutory rules but only by regulations, instructions or directions which the institution or body, in which the petitioners were employee, has issued for its internal use in violation thereof could be enforced through a writ petition. The Hon'ble Supreme Court of Pakistan has already decided the matter by observing that remedy in this regard is only available in the extent of claim of damages and not otherwise. In view of the fact that no statutory regulations exist in this regard the present grievance of the petitioners appears to be their individual grievance which can only be decided on its merits if any adverse action is taken by the employer in violation of the statutory rules only then action amenable to writ jurisdiction arises. However, if there are no statutory rules then the principle of master and servant would be applicable and such employees have to seek remedy before the Court of competent jurisdiction.
14.It is also seen from the record that the petitioner accepted her permanent transfer and joined Petroman without any objection thereto. As a consequence thereof her Provident Services and other dues etc. were also transferred to Petroman vide letter dated 3.10.2000 which has not been denied or controverted by the learned Counsel for the petitioners. It is also seen from the record that when Petroman became a subsidiary of the Respondent No. 04 a requisition was received from them to transfer some experienced staff and thereafter services of nine employees including the petitioner with the approval of the Ministry of Industries were permanently transferred to Petroman and thereafter individual letters for transfer were issued who not only accepted their permanent transfer without any objection but also joined their duties.
15.It is also seen that the case of Waseem Akhtar falls on totally different pedestal as when the said officer was transferred he filed a departmental appeal which was allowed and his transfer was cancelled whereas admittedly in the present case there was no such departmental appeal filed by the petitioners as soon as they were transferred to Petroman.
16.We, therefore, keeping in view the above discussion and the specific directions issued by the Hon'ble Supreme Court are of the considered view that as Respondent No. 4 admittedly does not have statutory rules and rules of service being not statutory the Petitioner is not amenable to writ jurisdiction and the only course of action available with the petitioners was to seek other remedies available to them. These petitions thus being not maintainable are hereby dismissed. However, the petitioners would be at liberty to seek other remedies available to them in accordance with law.