Rooh-ul-Amin Khan, J.--Brief but relevant facts of the case are that Petitioner No, 1 Usman Ghani was appointed as wireman in the erstwhile Pakistan Telecommunication Corporation of Pakistan against the post of work charge for the period from 16.5.1993 to 30.6.1993 vide order dated 16.5.1993 issued by the Divisional Engineer W.H.F. Peshawar on temporary basis. His contract period was extended from time to time and in the same way he continued his service from 1.65.1993 to 30.5.1997 as wireman in Sub-Division Bannu. On completion of the contract period on 30.5.1997 his services were not extended for further period; without any order of termination, he was relieved from his duties. Since then he submitted various application for reinstatement in service, but of no avail.
2. That similarly Petitioner No, 2 Abdul Jalil was also appointed in the Pakistan Telecommunication Corporation and was posted as Mali in Lakki Marwat vide order dated 20.2.1994. His service contract was not extended for further period after 30.7.1996. He was also not issued any termination order.
He also approached the respondents thereby filing an application/appeal dated 9.4.2009 for his reinstatement, in service, but the same could not bore any fruit. Hence this petition.
3. Initially the comments from Respondents No, 2 to 4 were called for, which were submitted on 13.6.2011 through Ihsanul Haq Malik, Advocate. The above said Advocate was served, who flatly refused to accept the notice as is apparent from the report dated 20.11.2012 of Muhammad Hanif Process Server, therefore, the respondents were placed ex parte.
4. Record reveals. that the Petitioner No, 1 was appointed against the post of wireman vide order dated 20.6.1993 and had served the Department for considerable long period i,e, upto 30.5.19 97.
The Respondent No, 2 has also served the Department from 20.2.1994 to 30.7.1996 as Mali.
5. In the year 2009 the President of Pakistan promulgated an Ordinance known as Sacked Employees (Re-instatement) Ordinance, 2009 which got the assent of Majlis-e-Shoora (Parliament) on 8.12.2010 and become an Act, called as the Sacked Employees (Re-instatement)
Act, 2010, (hereinafter referred to as the Act, 2010), whereby relief was provided to persons appointed in service of Corporation or autonomous bodies and semi autonomous bodies or in Government service during the period from the 1st day of November 1993 to the 30th day of November 1996 (both days inclusive) and were dismissed, removed or terminated from service during the period from the 1st day of November, 1996 to 12th day of October, 1999 (both days inclusive). The word sacked employees has been defined in the following words:-- "(i) a person who was appointed as a regular or ad hoc employee or on contract basis or otherwise in service of employer, 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 whose contract period was expired or who was given forced golden hand shake during the period from the 1st day of November, 1996 to the 12th day of October, 1999 (both days inclusive); (ii)
(iii)
(iv)
(v)a person who was appointed or reinstated in service of employer during the period from the Ist day of November, 1993 to the 30th day of November, 1996 (both days inclusive) and dismissed or removed or terminated or dissociated or was discontinued from service on account of closure of his or her employer office or organization, irrespective of the fact that whether a letter or notification or anything in writing for sacked employee's dismissal or removal or termination or dissociation or discontinuation of service was issued or not or the status of sacked employee's service was turned inactive or otherwise; and (vi)
6. The perusal of the record divulges that the petitioners do fall in the category of sacked employees as defined in the Act, 2010, and has also been removed from service during the period as enumerated in the preamble of the Act. Section 4 of the Act ibid provides the method of reinstatement and regularization of the service of the sacked employees, according to which the sacked employees shall be entitled for reinstatement and regularization in regular service of the employer of one scale higher to his substantive scale, grade, cadre, group, post or designation, which he was holding at the time of his dismissal, removal or termination from service.
7. The Respondents No, 2 to 4 have raised a preliminary objection in their comments that the relation between the petitioners and respondents is of master and servant, therefore, in the light of the decision of the Honourable Supreme Court of Pakistan reported in PLD 2011 S.C. 132 this Court is not vested with jurisdiction to entertain the instant writ petition. They have also raised an objection that since, the PTCL after its privatization has no concern with the policies of the Government, therefore, they are not performing any function in connection with the affairs of the Federation or Provinces, thus not amenable to the writ jurisdiction of this Court.
8. The controversy about the status of employees of PTCL and the question whether the PTCL is a "person" performing functions in connection with the affairs of Federation within the commandment of Article 199 (5) of the Islamic Republic of Pakistan aroused before the Honourable Supreme Court of Pakistan in case titled Pakistan Telecommunication Company limited Vs. Muhammad Zahid and 29 others (2010 SCM R 253). The august Supreme Court of Pakistan in the supra case while elucidating the controversy described the entire history and 'past event of PTCL and it was held that the employees of erstwhile Telephone and Telegraph Department transferred to the Corporation (PTC), under relevant provisions of the Act of 1991 and later on succeeded by the PTCL in the year 1996, discharging their function and duties in the International Gateway exchange as operators have been inducted permanently or regularized subsequently under the rules necessarily relates to one of the affairs of Federation within the provisions of Article 199 of the Constitution, hence similar duties and functions in the International Gateway exchange being discharged by the private respondents as operators cannot be distinguished and to say that the same does not relate to the affairs of the Federation, though conferred upon the Corporation and finally upon the PTCL. It was further held in the following words:-- "The Pakistan Telecommunication Authority invested with an effective rule over the functions of PTCL and exercisable by such Authority as envisaged by Sections 4 & 5 of the Pakistan Telecommunication (Reorganization) Act, 1996 headed by its Chairman with its constituting directors and all to be appointed by the Federal Government under Section 3 of the Act relating to the Telecommunication undisputedly is the subject which pertain to one of the important affairs of the Federation dischargeable now through the PTCL hence, such entity involved in the same exercise of the sovereign powers, essentially falls within the context of person' as defined in clause
(5) of the Article 199 of the Constitution, therefore, for the above reasons the grievance of the private respondents was amenable to the writ jurisdiction of the High Court."
9. The question of jurisdiction of High Court under Article 199 was dilated upon at great length and plethora of law was gone through in case of Masood Ahmad Bhatti and others Vs. Federation of Pakistan through Secretary, M/O. Information Technology and Telecommunication and others (2012 SCM R 152) and it was observed that: "Thus it is evident that at the moment of transition when the appellants ceased to remain employees of the Corporation and became 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."
10. It would not be out of context to refer here that the Federal Government still owned 62% shares in PTCL and it could not be held that the PTCL is not performing functions in connection with the affairs of Federation. In this respect reliance may be placed on the judgment of Honourable Supreme Court of Pakistan in case tilted Pakistan Telecommunication Co. Ltd. through Chairman Vs. Iqbal Nasir and others (PLD 2011 S.C. 132), wherein it was held that:-- "It may also be added here that as rightly held by a learned Division Bench of the High Court of Sindh in the judgment impugned in C.A. No, 883 of 2010 that the Federal Government had first sold 12% shares through public subscription and then it sold 26% shares of PTCL (all of B class shares) to the EIP and the remaining 62% shares of PTCL were still owned by the Federal Government and as long as the Government owned majority shares in said entity either in its own name, or whether wholly or partially in the name of any other organization or entity controlled by the Government, PTCL was and should continue to be amenable to the jurisdiction of the High Court under Article 199 of the Constitution. In this view of the matter, the argument that the PTCL was not a person within the meaning of Article 199 (5) of the Constitution is not tenable".
11. From the above quoted judgments of the Honourable Supreme Court of Pakistan it is clear than crystal that the petitioners were the employees of statutory body and at the time of their termination they were governed under the statutory rules.
In the wake of the above discussion this petition is allowed and the respondents are directed to re- instate the petitioners in service strictly in accordance with Section 4 of the Sacked Employees Act, 2010.