MRS, IRSHAD QAISER, J.--- This judgment shall dispose of Writ Petitions Nos.224, 225, 226, 227, 228, 229, 230, 231, 232, 233, 234, 235,236, 237, 238, 239, 240, 241, 242, 243, 244, 245, 246, 247, 248, 249, 250, 251 of 2011 and 890, 891, 892, 893, 894, 895,896, 897, 898 of 2011 as common question of law and facts are involved and all these writ petitions have been filed to call in question the judgments and orders dated 1-11-2010 and 20-12-2010 passed by Labour Appellate Tribunal, Khyber Pakhtunkwa, Peshawar, whereby appeals of petitioners were dismissed. Through these writ petitions, petitioners have asked for the issuance of appropriate writ for certiorari declaring the impugned judgments and orders dated 1-11-2010 and 20-12-2010 of Labour Appellate Tribunal illegal, unlawful, void ab initio and that the same may be set aside.
2. Brief facts of the case are that the respondents/employees mentioned in the above noted writ petitions had filed grievance petitions under section 46 of the Industrial Relation Ordinance, 2002 against the Pakistan Telecommunication Company Limited on the ground that they (i,e, respondents) were denied the right of pensioner benefits and resultant commutation thereof under the Voluntary Separation Scheme in spite of the fact that they have rendered continuous and uninterrupted service for more than 20 yeaRs, That PTCL launched a Voluntary Separation Scheme (VSS) wherein 20 years of service was required for pensioner benefits and to that effect letters were issued to the employees for exercising option. That according to the offer of Voluntary Separation Scheme the date of appointment of respondents was considered as the data of their initial appointment. They availed the option which was accepted and some amount on account of severance pay etc was given while the payment of commutation and monthly allowance were withheld/denied, because the payment was calculated from the date of completion of their training instead of initial appointment. Through the Grievance petition filed in Labour Courts they prayed that their services for the purpose of pensioner's benefits are to be calculated from the date of their initial appointment. Respondents/ petitioners contested the petition alleging that the pension benefit are to be calculated from the date of their regularization in to service i,e, from the date of qualifying training and not from the date of their initial appointment.
2. After hearing the arguments, the learned tabour Court accepted the petitions vide judgments and orders dated 30-4-2010, 9-10-2010 and 18-12-2010. Against above orders petitioners/PTCL filed appeals before the Labour Appellate Tribunal under sections 50(3) of the Industrial Relations Ordinance, 2002 which was also dismissed vide impugned judgments and orders dated 1-11-2010 and 20-12-2010.
4. Feeling aggrieved from the orders of Labour Appellate Tribunal, petitioners filed present writ petitions on the ground that the impugned orders are without jurisdiction and improper. That tribunal failed to appreciate the fact that respondents employees have no right to invoke the jurisdiction of Labour Court. That they have received their benefits under the Voluntary Separation Scheme after final settlement of their dues and had ceased to be aggrieved persons. That as per rules of PTCL, length of service of the employees will be considered as regular employees of the department for the purpose of pension and other benefits from the date of completion of their training/course and not from the date of initial joining/start of service.
5.We have heard learned counsel for the parties and perused the entire record and the relevant laws on the subject.
6. The first objection raised by counsel of petitioners is that Labour Courts have no jurisdiction to entertain the Grievance petitions A filed by respondents. Now it is to be seen whether Labour Court has jurisdiction to grant relief to the aggrieved employees of PTCL or not? To settle this question that whether PTCL is a commercial establishment whether the present employes, respondents come in the purview of the definitions of workman or not? For proper assistance the definitions of Commercial Establishment and Workman, given in sections 2(b) and 2(1) of the Industrial and Employment (Standing Orders) Ordinance, 1968 is reproduced as under:--- "2(b) "commercial establishment" means an establishment in which the business of advertising, commission or forwarding is conducted, or Which is a commercial agency and includes a clerical department of a factory or of any industrial or commercial undertaking, the office establishment of a person who for the purpose of fulfilling a contract with the owner of any commercial establishment or industrial establishment, employs workmen, a unit of a joint stock company, an insurance company, a banking company or a bank, a broker's office or stock exchange, a club, a hotel, a restaurant or an eating house, a Cinema or theatre, and such other establishment or class thereof, as Government may, by notification in the official Gazette, declare to be a commercial establishment for the purpose of the Ordinance;"
"2(1) workman.-- means any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward" PTCL comes within the definition of Industrial as well as commercial establishment. It has hired the services of their employees to do skilled, unskilled, manual as well as clerical work. Record shows that the petitioners/PTCL authority itself assailed the order of Labour Courts before the Labour Appellate Tribunal by invoking its rights under section 50(3) of Industrial Relation Ordinance, 2002 wherein the jurisdiction of Labour Court was not challenged and when relief claimed was refused, the present writ petition was filed and challenged the orders of Labour Appellate Tribunal. Moreover the law on this issue is also laid down by august Supreme Court in case title "Muhammad Mubeen-usSalam v. Federation of Pakistan PLD 2006 SC 602, vide which the appeals filed by/on behalf of PTCL etc. Stood abated and they were directed to seek their respective remedy from competent Courts of law.
7. Since in the present case the respondents have been deprived of the emoluments and pensions etc. When the employer company/ petitioners on introduction of Voluntary Separation Scheme and the employees having opted for the same, while settling their account did not count their pre-training period of service in their total length of service, therefore, for getting relief they have rightly knocked the doors of Labour Courts being workman as defined in Industrial Relation Ordinance, 2002 (I.R.O. 2002). Subsection (3) of section 46 of Industrial Relation Ordinance, 2002 provides for adjudication and determination of the grievance of worker by Labour Court which has been replaced by Industrial Relation Act, 2008. Section 41 whereof also provide for determination and adjudication of a grievance of worker(s) by Labour Court. Moreover since the grievance petitioners involved both factual and legal controversies, therefore, the Labour Court, after conducting proper trial and giving full opportunities to both the parties to produce pro and contra evidence decided the matter on its own merits both on facts and law. Reference in this respect is made to 1999 SCMR 467.
8. As discussed hereinafter the respondents have suffered a lot both financially and physical for the acts of the others, therefore, keeping in view the above facts and circumstances of the case we have no hesitation to say that Labour Courts and Labour Appellate Tribunal having rightly exercised the authority vested in them by the aforementioned legal provisions of law.
9. Now the other main question for determination is that whether the pre-training service period of the employees of the petitioners company who had opted to severe their relations with the employer under Voluntary Separation Scheme, hereinafter called as VSS, has to be counted towards their pensioners benefits or it is to be considered from the date of qualifying training.
10. Admittedly until 1991 respondents were employees of the erstwhile Pakistan Telegraph and Telephone Department. Later on they became employees of Pakistan Telecom Corporation (i,e, PTC) and afterward PTCL. Each one of them had sufficient length of service at their credit and they have given the detail in their respective petitions.
11. It is not disputed that prior to the establishment of Pakistan Telecommunication Corporation under the PTC Act, 1991 the respondents were civil servants. At that time (prior to 1991) the respondents were governed by various rules and regulations governing the services of civil servants. The Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 provide the terms and conditions of the civil 'servants.
12. In 1991, the PTC Act was legislated by the parliament, in which by virtue of section 3 of the PTC Act the corporation was established and it also contained provisions in respect of the employee of T&T Department such as the present respondents. These employees were referred to as "Departmental Employees" as defined in section 2(e) of PTC Act. Section 9 of the PTC Act expressly stipulated that "notwithstanding anything contained in any law, contract or agreement, Of in the condition of service, all departmental employees shall, on the establishment of the corporation, stand transferred to, and become employees of the corporation on the same terms and conditions to which they are entitled immediately before such transfer" and under subsection (2) of section 9 the corporation was not to vary the terms and conditions of service of such person to their disadvantages. Thereafter the Pakistan Telecommunication Corporation (Reorganization) Act, 1996 was passed wherein certain provisions relating to "telecommunication employees" were incorporated. This term "employees" has been defined in section 2(t) of the Re-organization Act. It means such employee of the corporation who are transferred to the employment of the company under this Act other than these to whom subsection (3) of section 36 applies. The proviso of section 35(2) of Re-organization Act provides the terms and conditions of the employees. By virtue of this proviso, PTCL had no power to "vary the terms and conditions of service" of the employees who were previously employees of the corporation, to their disadvantage". Section 36(2) of the Reorganization also gives protection to the terms and conditions of service of employees such as the respondents who stand 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 law of the Pakistan or with the consent of the transferred employees the award of appropriate compensation". When this legal provision is read together with section 35, it become clear that by operation of the Re-organization Act, the terms and conditions of service of respondents as on 1-1- 1996 stood conferred on them as vested rights under the said law.
13 .In the present case the petitioners have neither denied the joining of service of the respondent of T&T department before transfer of PTCL nor the length of service was disputed but their main contention is that as per rules of PTCL department all persons will be considered as regular employees of the department for the purpose of pensioners and other benefit from the date of the completion of their training/course. No such rules and law had been produced. As against this the respondents produced and exhibited different letters including letter, dated 1-6-1995 and 29-6- 2005 clearly indicates that the intervening period between the appointment and training shall be treated as duty. '
14. Keeping in view the above legal and factual discussion we are of the opinion that the above noted alleged rules, if any, are against the terms and condition of the employees as well as against the principle laid ..Down by constitution. It appears from the record that Voluntary Separation Scheme was introduced by the petitioner/PTCL and the same was offered to the respondent. According to the offer of Voluntary Separation Scheme the date of appointment of respondents was considered as the date of their initial appointment but the payment was calculated and made from the date of completion of their training and thus they were deprived without any justification from their pension and other benefit. During trial, statements of officials of PTCL were recorded as RWs. RW2 Saddidullah, Assistant Manager, Manpower and Planning PTCL Head Quarter, Islamabad had clearly admitted it correct that in the first offer letter of Voluntary Separation Scheme the pension B of the pensioners were calculated and the date of joining service was mentioned before training.
He also admitted that when the Voluntary Separation Scheme package was offered the letter dated 1-6-1995 was in the field. He further admitted that there were more than 30000 employees and there is possibility of .,human's error. According to the contents of above letter the intervening period between the appointment and the training was treated as duty. It is also on record that the benefit of initial appointment and pre-training were extended to some of the employees. This also caused great discrimination and injustice to the aggrieved employees. It may at this juncture be mentioned that in a case titled "I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041 the Humble Supreme Court of Pakistan in the said elaborated judgment highlighted the conception of pension after Considering number of precedents, encyclopedia etc and calculated "A pension is intended to assist a retired person in providing for his daily wants so long he is alive in consideration of his past service". In this case Article 25 of Constitution was also considered the substance of which is that a pensioner may have a legitimate grievance if he is not treated alike with the other pensioners and the one who is deprived of same benefit which is being given to other it would be violation of Article 25 of Constitution. It is repeatedly held by Superior Courts, that by depriving employees of their emoluments besides other service benefits etc apparently amounts to have been grossly violated as against the guaranteed rights under Articles 2-A, 4, 25 and 27 of Constitution of Islamic Republic of Pakistan 1973:
15. It is also the consistent view of the superior Courts that for giving benefit to employees even the period of service of Daily Wages and ad hoc appointment was also counted and taken into consideration for calculation of pensioner's benefits. Provided there is no break in service.
Reference is made to 2006 PLC (C.S.) 236, 1998, PLC (C.S.) 736. It is settled law that an employ begins his service from the date of assumption of charge of the office to which he has been appointed. Training is and should be part and parcel of the service. The benefit of pre-training service be given to employees and it should be countable for calculating their monthly pension.
Reference is made to 2010 PLC (C.S.) 668, 2010 PLC (Labour) 354.
Thus it has rightly been held by both the trial and appellate Courts that respondents are entitled to the pensionary benefit from the date of their joining service and not from the date of their regularization after training which is also part and parcel of their service. We are of the considered view that the respondents were discriminated against with regard to the calculation of their length of service. Thus the writ petitions being without any substance are hereby Dismissed.