' MUHAMMAD KHALID MEHMOOD, KHAN, J.--- Through this single order, I propose to decide following writ petitions involving same question of law and facts:-- W.P.No,60 of 2012, W.P.No,61 of 2012, W.P.No,62 of 2012, W.P.No,90 of 2012, W.P.No,91 of 2012, W.P.No,141 of 2012, W.P.No,142 of 2012, W.P.No,396 of 2012, W.P.No,397/2012, W.P.No,585 of 2012, W.P.No,1011 of 2012, W.P.No,24423 of 2011, W.P.No,29303 of 2011, W.P.No,29304 of 2011 and W.P.No,29305 of 2011.
2. The petitioners are the employees of Pakistan Telecommunication Corporation Limited (PTCL), the respondent No,1; the Federal Government announced 50% increase in basic salary of the employees vide Notification dated 5-7-2010 and 18-8-2010, the petitioners approached their employer/respondent No,1 for allowing the increase announced by Federal Government, on the refusal of respondent No,1 there was unrest amongst employees of respondent No,1 and demonstration erupted for forcing the respondent No,1 to allow benefit of Federal Government's announced increase of 50% basic salary, and ultimately show-cause-notices were issued to petitioners and the petitioners were suspended; the petitioners replied the show-cause notices, personal hearing was provided. Before passing the final order, the respondents filed W.P.No,17832 of 2010 which was disposed of in the following terms:--- "(4) In view of the above, the learned counsel for the petitioner, under instructions, submits that petitioner No,1 shall hold further negotiations with respondents Nos.4 to 6 and any other elected representative of the employees of petitioner No,1 for redressal of their grievance(s).
' The parties undertake to abide by their respective statements."
3. The petitioners asserts that in spite of holding negotiations as per order of this Court dated 18-8- 2010, the petitioners services were dispensed with and they were terminated on 20-8-2010, 20-10- 2010, 13-11-2010, 23-8-2010, 1-9-2010. The petitioners filed departmental appeal but that was not decided. The petitioners then filed writ petitions before this Court but were withdrawn as the question of statutory rules was raised by respondents. The petitioners also approached the Labour Court-I, Lahore and National Industrial Relations Commission, Lahore (NIRC) for redressal of their grievances. The petitioners have thus assailed their termination on the ground that they are the permanent employees of respondents and under the rules and regulations the respondents are bound to hold inquiry and to allow petitioners to defend themselves in an inquiry. It was asserted that no inquiry was conducted and as such termination orders are bad in law and finally it was asserted as under:--- "(i) the impugned order dated 20-8-2010 is based on mala fide, violative to the rules hence not sustainable and liable to be set aside. The respondents may kindly be directed to reinstate the petitioner in its respective cadre with all back benefits.
(ii) It is further prayed that respondents may kindly be restrained from evicting from accommodation occupied by the petitioner and the electric meter illegally removed by the respondents be restored till the finalization of case.
(iii) Any other relief which this Hon' ble Court deems fit and proper may kindly be awarded."
4. The respondents filed replies and raised legal objection about the maintainability of writ petition claiming that respondents have no statutory, rules, it was contended that petitioners have availed the remedy under section 33 of the Punjab Industrial Relations Act, 2010 and as such the writ petitions are not maintainable. It is further asserted that earlier writ petition was withdrawn unconditionally and as such second petition is hit by doctrine of res judicata, the petition is hit by principle of laches as dismissal order has been challenged after the lapse of 16-months. Further contended that relationship of master and servant exists between the parties. The relationship of employer and employee ceased to exist on termination of petitioners services. On merits, it was alleged that in July, 2010 unrest, anarchy and hooliganism was unleashed by the petitioner and others PTCL employees, they cut fiber cables, they refused to attend the complaints of customers, they started illegal strikes, they forcibly closed the PTCL offices, installations and establishments in spite of injunctive order passed by NIRC, Lahore High Court Rawalpindi Bench. However, the disposal of W.P.No,17832 of 2010 was not disputed.
5. Learned counsel for petitioners submits that the Hon'ble Supreme Court of Pakistan in a judgment Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary, Messrs Information Technology and Telecommunication and others (2012 SCM R 152) specifically held that respondents have statutory rules, as the petitioners fall under the definition of transferred employees in terms of section 35(2), section 36(2) and section 2(t) of Pakistan Telecommunication (Re-organization) Act, 1996. Further submits that it is an admitted fact that no inquiry was held and the petitioners services terminated without providing opportunity of hearing. Further submits that allegation of registration of F.I.R. Is wrong, and the petitioners have been acquitted in fake F.I.R. Got registered by the respondents. He further submits that petitioners have withdrawn their cases from Labour Court and NIRC as the judgment of Hon'ble Supreme Court of Pakistan referred to above declared that respondent No,1 has statutory rules. Learned counsel for petitioner further submits that respondents demanded affidavits from the petitioners which they provided confirming that they will not participate in any labour activity which act also is against their fundamental right but the petitioners to save their livelihood submitted affidavits but in vain. This very act is sufficient to prove that act of respondent for dismissal of petitioner from services was preplanned and mala fide.
6. Learned counsel for respondents submits that. The respondent No,1 is a public limited company having no statutory rules and as such writ petition is not maintainable. He has relied on Pakistan Telecommunication Co. Ltd. Through Chairman v. Lqbal Nasir and others (PLD 2011 SC 132), Ejaz All Bughti v. P.T.C.L. And others (2011 SCM R 333) and Civil Petitions Nos.28 to 34 of 2011 titled Pakistan Telecommunication Limited and others v. Muhammad Zahid and others. Learned counsel further submits that as per settlement between the parties in W.P.No,17832 of 2010, the petitioners issued invitations for negotiations but the violence, agitations and anarchy continued. The negotiations were thus deferred and subsequently invited the employees for negotiations and a set of office bearers (excluding the petitioner) called of illegal strike, negotiations were held with them and settlement arrived at between the parties excluding the petitioners. On merits, the learned counsel supports the. Termination order and submits that relationship of master and servant exist between the parties, they may approach appropriate forum for receiving damages if so advised.
7. Heard, record perused.
8. The Hon'ble Supreme Court of Pakistan in Pakistan Telecommunication Co. Ltd. Through Chairman v. Iqbal Nasir and others (PLD 2011 SC 132), Ejaz Ali Bughti v. P. T.C.L. And others (2011 SCM R 333) and Civil Petitions Nos.28 to 34 of 2011 titled Pakistan Telecommunication Limited and others v.
Muhammad Zahid and others held that in the absence of statutory rules, principle of master and servant is applicable between the employees of PTCL and as such constitution petition is not maintainable. However, in Masood Ahmed Bhatti's case (supra) the Hon'ble Supreme Court of Pakistan came to conclusion that the employees who joined PTCL before 1-1-1996 are governed by the statutory rules of PTCL and employees who joined services after 1-1-1996 are governed by doctrine of master and servant.
9. Admittedly the issue dilated upon by the Hop'ble Supreme Court of Pakistan in Masood Ahmed Bhatti's case (Supra) was not opined in the earlier two judgments. The Hon'ble Supreme Court of Pakistan in Masood Ahmed Bhatti's case (Supra) has opined as under: - "14. We may now consider the effect of this transfer of the appellants to PTCL along with the assets and liabilities of the Corporation and the implications of such transfer on the nature of the rules of employment applicable to the appellants from the date (i,e, 1-1-1996) they became employees of PTCL. The proviso to section 35(2) of the Re-organization Act provides a clear answer to this controversy. It specifies that even after the transfer of the appellants to PTCL their terms and conditions of service which existed on 1-1-1996, would be the base and bare minimum in matters of their employment with PTCL. These terms and conditions were imposed on PTCL by the Re- organization Act, as a legal obligation and the Vesting Order was issued by the Federal Government "in exercise of powers conferred by section 35" of the Re-organization Act. The Federal Government, it will be noted, had been granted limited powers only; the constraint on it was that the terms and conditions of service of employees of the Corporation could not be varied to their disadvantage. PTCL, as the recipient of the properties and rights of the Corporation, also assumed the liabilities of the Corporation. Such liabilities necessarily include the liabilities owed to the employees, arising from the terms and conditions of their service as these could not be varied to their disadvantage.
15. Thus it is evident that at the moment of transition when the appellants ceased to remain the employees of the Corporation and become the employees of PTCL, they admittedly were governed by rules and regulations which had been protected by the PTC Act. The said rules, therefore, by definition were statutory rules as has been discussed above. PTCL, no doubt, could make beneficial rules in relation to its employees which were in addition to the rules' of employment prevailing on 1-1-1996. However, by virtue of the aforesaid proviso, PTCL had no power to "vary the terms and conditions of service" of its employees who were previously employees of the Corporation, "to their disadvantage". Even the Federal Government was debarred by virtue of section 35 ibid, from varying such terms and conditions of service to the disadvantage of the appellants.
16. An easy and uncomplicated test becomes available to us to help determine, the status of the employment rules governing the appellants. If the current employer of the appellants viz. PTCL is constrained by legislation such as section 35(2) of the Reorganization Act, and as a consequence, cannot vary the existing rules to the disadvantage of the appellants, because of such legislation, it must follow that such law has the effect of saving the rules which existed When the appellants became employees of PTCL. Such existing rules, having been protected by section 35(2), therefore, can only be categorized as statutory rules.
17. Section 36 of the Re-organization Act also has relevance in determining the controversy which arises in these appeals. Subsection (2) of section '36 gives protection to the terms and conditions of service of employees such as the appellants who stood transferred from the Corporation to PTCL on 1-1-1996. Their terms and conditions of service cannot be altered adversely by PTCL "except in accordance with the laws of Pakistan or with the consent of the transferred employees and the award of appropriate compensation". When this legal provision is read together with section 35, it becomes abundantly clear that by operation of the Re-organization Act, the terms and conditions of service of the appellants as on 1-1-1996 stood conferred on them as vested right's under the said law." ' and finally concluded that the employees who were initially joined Pakistan Telecommunication Corporation under the Pakistan Telecommunication Corporation Act 1991 fall within the definition of transferred employees and as such they are governed by statutory rules of Pakistan Telecommunication Corporation Act, 1991.
10. After the judgment in Masood Ahmed Bhatti's case it is an established fact that the petitioners who joined PTCL before 1991 are governed by the statutory rules and as such the writ petition is maintainable.
11. The argument of learned counsel for respondents is that petitioners have availed their remedy before this Court through a constitutional petition but the same was withdrawn unconditionally as well as they have availed the remedy before the Labour Court and NIRC and as such the present petition is hit by doctrine of res judicata.
12. It is proven fact on record that petitioners withdrew earlier writ petition as the Hon'ble Supreme Court of Pakistan held that the respondent company has not having statutory rules and as such the petition was not maintainable. Further the jurisdiction of Labour Court remain in disputed after the 18th amendment in the Constitution of the Islamic Republic of Pakistan, 1973 and the IRO, 2011 was also remain disputed unless the IRO, 2012 was passed by the Parliament. In these circumstances, the case of petitioners is not hit by doctrine of res judicata and the petitioners have rightly invoked the jurisdiction of this Court'under the authoritative judgment of the Hon'ble Supreme Court of Pakistan in case of Masood Ahmed Bhatti supra.
13. As far as, the argument of learned counsel for respondents that the petitioners have concealed the facts that they earlier approached, NIRC and. Labour Court is also not borne out from the record, as petitioners have specifically mentioned in their writ petitions that they approached the Labour Court as well as NIRC. The petitioners have filed C.M. No,220 of 2012 which show that petitioners have withdrawn their petition from Labour Court. Further if the petition before the Labour Court is not maintainable, then it will make no difference whether the said petition is pending or not. Only question which requires to be resolved through the present petition is whether writ petition is maintainable on the touch stone of statutory rules which has finally been resolved by the Hon'ble Supreme Court in Masood Ahmed Bhatti's case (supra) . The respondent has not denied the date of appointment of petitioners which are admittedly before 1-1-1996. It is also admitted fact that no charge sheet was issued nor any inquiry was conducted. It is not understandable when respondents themselves have admitted that they negotiated the settlement with a set of office- bearers (excluding the petitioner) and after successful negotiations, a settlement was executed how the petitioner could be blamed when they submitted affidavits that they will not participate in labour activities, why the benefit of settlement was not given to petitioners. The alleged settlement is available on record as Annex.R/7/5 to Annex.R/7/7. The perusal of said settlement shows that it is not settlement but is an Inter-Office Memo which the respondents themselves issued without finalizing any negotiations even with the CBA or the labour officials of the certified union, further this alleged agreement is not signed by any party. The concluding para of alleged settlement agreement is read as under:- {{ URDU TEXT }}
14. The perusal of said alleged settlement agreement shows that it is nowhere established that negotiations were held even with CBA for the resolution of dispute between the parties. The letter Annex.R/7/1 to Annex.R/7/4 show that respondent No,1 is addressing the petitioners as (claiming to be a General Secretary) meaning thereby the respondents never tried seriously to negotiate amicable settlement with the petitioners, they tried to foist their own terms on the employees in spite of the fact that they have given undertaking before this Court in W.P.No,17832 of 2010, when this Court passed order after hearing the parties as under:--- "Respondents Nos.5 and 6 state that they are protesting against the high-handedness of petitioner No,) and the non-acceptance of their demands, inter alia, pertaining to enhancement of the employees of petitioner No,1 's basic pay by 50% in line with the enhancement of Pay of Government servants/employees. They further state that they have not resorted to any illegal means-nor have they stopped any personnel, including executives, of petitioner No,1 from performing their duties. They submit that they do not intend to disrupt the Communication network of the country especially in view of the unprecedented flooding in the country. They further contend that the management of petitioner No,1 has refused to hold further negotiations with them, however, if petitioner No,1 were to be directed to further negotiate with them, they in turn would be willing to do the same. The proposed negotiations to encompass all grievances of the employees of petitioner No,1 including, but not limited to, stoppage of pay/bonus and suspension of workers.
2. Respondents Nos.5 and 6 undertake to strictly abide by the law whilst protesting for their demands. They also undertake not to forcibly stop working of any telephone exchange, nor to damage any company/government property nor to harass/cause harm to the personnel (male or female) of petitioner No,1, including executive, nor to forcibly stop them from performing their duties.
3. The learned A.A.-G., under instructions, submit that the local police has provided security, aid and help to petitioner No,1 and have done the needful from the point of view of maintaining the law and order situation in an around petitioner 'No,1 's exchanges. It is further submitted that if petitioner No,1 has some grievance, it should apply to the concerned police officials who shall act in the matter strictly in accordance with law.
"4. In view of the above, the learned Counsel for the petitioner, under ,instructions, submits that petitioner No,1 shall hold further negotiations with respondents Nos.4 to 6 and any other elected representative of the employees of petitioner No,1 for redressal of their grievance(s).
5. The parties undertake to abide by their respective statements.
6. Under the circumstances no further proceedings are called for in this petition. It is accordingly disposed of
15. The record submitted by respondents rather relied by respondents shows that the respondents were pre-decided to terminate the services of employees who were not surrendering before them at their terms. The demand of affidavits that employees will not take part in the A union activities was against law; to form a union and become its member is fundamental right of employee/labourer and refusal to employee or to sabotage his right to become member of labour union is an offence.
16. The petitioners who have more than 20-years' service of the institution were thrown out like a waste paper by violating their fundamental right of hearing and fair trial under Article 10-A of the Constitution. Admittedly the petitioners were not heard, no charge sheet was issued and their services were terminated without any lawful authority. In view of above, the act of respondent to terminate petitioner's services is declared without lawful authority and of no legal effect and consequently the petitioners will deem to be in service. However, if the respondents have any grievance against the petitioners, they may initiate proceedings against them in accordance with law.
17. All the writ petitions are allowed in the above terms.