MIRZA VIQAS RAUF, J. This single judgment will decide the instant petition as well as the following petitions involving same question of law and fact:-
1. W.P.No. 27099 of 2011.
2. W.P.NO. 10605 of 2012.
3. W.P.No. 10674 of 2012.
4. W.P.No. 4981 of 2011.
5. W.P.No. 15431 of 2012.
6. W.P.No. 16362 of 2012
2. The petitioner namely Ch. Basharat Ali in W.P. No. 19546 of 2012 was appointed as driver in erstwhile Telephone and Telegraph Department, Government of Pakistan on 02.09.1979. The Government of Pakistan granted adhoc allowance to the extent of 50% pay to the government organizations/Corporations employees in the budget promulgated in June, 2010. The grievance of the petitioner is that when he asked the respondents to pay the said allowance in terms of the decision of the Government, he was confronted with show cause notice which was issued on 25.08.2010 followed by another show cause notice dated 05.10.2010. In pursuance of the show cause notice, the petitioner was dismissed from service vide order dated 13.11.2010, against which, he filed a departmental appeal but the same remained unattended. The petitioner then filed grievance notice, however, no decision was taken by the respondents which constrained the petitioner to file the grievance petition before the Punjab Labour Court, however, with the pronouncement of the judgment by the Hon'ble Supreme Court of Pakistan in the case of Masood Ahmad Bhatti vs. Federation of Pakistan through Secretary, M/O. Information Technology and Telecommunication and others (2012 SCM R 152), the said petition was withdrawn and the instant petition was filed challenging the vires of the order dated 13.11.2010.
The petitioner namely Muhammad Azhar in W.P. No. 27099 of 2011 was appointed as Customer Support on 08.01.1990 in the Telegraph and Telephone Department and was terminated from service on 23.08.2010.
The petitioner namely Muhammad Irshad in W.P. No. 10605 of 2012 was appointed as Naib Qasid on 05.10.1989 in the Telegraph and Telephone Department and was dismissed from service on 13.11.2010.
The petitioner namely Kh. Khalid Mehmood in W.P. No. 10674 of 2012 was appointed as Wireman on 05.05.1973 in the Telegraph and Telephone Department and was dismissed from service on 19.10.2011.
The petitioner namely Dr. Javed Iqbal in W.P. No. 4981 of 2011 was appointed as Medical Officer on 07.04.1990 in the Telegraph and Telephone Department and was dismissed from service on 02.03.2011.
The petitioner namely Iftikhar Ahmad in W.P. No. 15431 of 2012 was appointed as Telecom Technician on 21.11.1977 in the Telegraph and Telephone Department and was removed from service on 05.06.2012.
The petitioner namely Naveed Chaudhry in W.P. No. 16362 of 2012 was appointed as Engineer Supervisor in the Telegraph and Telephone Department on 04.09.1983. He was issued charge sheet dated 14.06.2012 in terms of Pakistan Telecommunication Corporation Service Regulations, 1996.
3. The respondents while resisting the instant petitions filed report and parawise comments wherein they raised certain preliminary objections with regard to the maintainability of the petitions and also controverted the assertions contained in all the petitions.
4. Mr. Baleeg-uz-Zaman Ch. Advocate, learned counsel representing Ch. Basharat Ali (petitioner) submitted that the petitioner being the employee of the Telephone & Telegraph Department is to be governed by the statutory rules and he falls under the definition of transferred employee in terms of section 35 (2) and section 36 (2) of the Pakistan Telecommunication (Re-Organization)
Act, 1996. Learned counsel maintained that the disciplinary proceedings initiated by the respondents are unwarranted and the petitioner has been dismissed from service without affording any opportunity of hearing which is against the principles of natural justice. Learned counsel contended that in similar matter, this Court in W.P.No. 60/2012 has already re-instated the employees placed on similar footing. In support of his contention, learned counsel relied upon Tariq Masood Bhatti's case (supra) (2012 SCM R 152). Learned counsels for other petitioners also argued on the same lines.
5. Conversely, learned counsel for the respondents contended that respondent No.1 is a public limited company having no statutory rules as such the instant petition is not maintainable. Learned counsel maintained that the protection provided to the employees of Telephone and Telegraph Department in terms of section 9 of the Pakistan Telecommunication Corporation Act, 1991 is restricted to the terms and conditions of service of such employees and it cannot be extended to the applicability of rules and regulations framed in this regard. Learned counsel submitted that the petitioners were proceeded in accordance with law and as per Service Regulations, 1996 which were clearly applicable to his case. In order to supplement his arguments, learned counsel relied on the case of Pakistan Telecommunication Co. Ltd. Through Chairman vs. Iqbal Nasir and others (PLD 2011 SC 132). Learned counsel argued that in the prevailing circumstances, the judgment in Masood Ahmad Bhatti's case (supra) will not prevail. He has also referred Leave granting order dated 21.04.2014 passed in Civil Petition Nos. 511, 512, 527 to 532 of 2014 in order to emphasize that the judgment in the case of Masood Ahmad Bhatti (supra) is not binding upon this Court.
6. I have heard the learned counsel for both the sides and also perused the record with their assistance.
7. The moot question involved in the instant petition as well as connected petitions is whether the services of the petitioners are governed by the statutory rules or not and whether they can be transferred in terms of PTC Service Regulations, 1996. There is no denial that the petitioners are employees of Telephone and Telegraph Department and prior to the establishment of Pakistan Telecommunication Corporation under the Pakistan Telecommunication Act (XVIII of 1991)
(hereinafter referred as Act, 1991), the petitioners were civil servants and they were governed by the Rules and Regulations applicable to the civil servants. The Pakistan Telecommunication Corporation was established by way of Act, 1991 and by virtue of section 9 of the said Act, all the departmental employees on the establishment of the Corporation, stand transferred to, and become employees of the Corporation, on the same terms and conditions, to which, they were entitled immediately before such transfer. Section 2(e) of the Act, 1991, provides the definition of departmental employees which reads as under:- "departmental employees means employees belonging to the Pakistan Telegraph and Telephone Department and includes employees of the said Department who may, for the time being, be serving in other organizations, but does not include members of the accounts group or secretariat group or other employees of external organizations who may be serving in the said Department."
As already observed that Section 9 of the Act, 1991 expressly stipulates that notwithstanding anything contained in any law, contract or agreement, or in the condition of service, all the 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 were entitled immediately before such transfer. (Underlining is mine for emphasis).
It is manifest from the above that the status of the employees of Telephone and Telegraph Department was kept intact as prevailing at the time of promulgation of the Act, 1991. The matter did not end here. In the year 1996, the Pakistan Telecommunication Corporation Re-Organization Act XVII of 1996 (hereinafter referred as Act, 1996), was promulgated. The said Act also brought some material structural changes in the nomenclature of the Department and it split of the Corporation into five distinct entities. One of these five entities in terms of Assets and employees was the Pakistan Telecommunication Company Limited. Section 2(t) of the said Act provides definition of Telecommunication Employees which reads as under:- "telecommunication employees" means the employees of the Corporation who are transferred to the employment of the Company under this Act, other than those to whom sub- section (3) of section 36 applies, and all persons who, on the effective date for the Company were employees of the Corporation the former Telegraph and Telephone Department of the Federal Government and are receiving or are entitled to receive pensionary benefits from the Corporation."
It is quite obvious that the petitioners being the employees of the former Telephone and Telegraph Department are also included in the said definition. Section 35 of the Act, 1996 is the most relevant for the purpose of determining the status of the petitioners in terms of the said Act and also for the purpose of ascertaining as to whether their employment is to be regulated by statutory rules or otherwise. Section 35 is reproduced below for ready reference and convenience:- "35. Vesting of the rights, property and liabilities of the Corporation:- (1) The Federal Government may, by orders, direct that all or any property, rights and liabilities to which the Corporation was entitled or subject to immediately before such orders, and identified therein, shall, on such terms and conditions as the Federal Government may determine, vest in- a) the Company; b) the National Telecommunications; c) the Authority; d) the Trust; or
(e) the Board through Federal Government, and become the property, rights and liabilities of the respective entity.
(2) An order issued under sub-section (1) shall specify the employees of the Corporation who shall, as from the effective date of the order, be transferred to and become employees of the entity referred to in the order:
(3) An order issued under sub-section (1) in favour of the Company shall provide for-
(a) the continuation by the Company of the operations and undertaking of the Corporation on the same basis as where carried on immediately prior to the date of the order save in respect of the operations and undertakings to be carried on by the National Telecommunication Corporation pursuant to section 41; and
(b) the dissolution of Corporation as from the effective date of the order,
(4) In consideration of the vesting in the company of the property of the Corporation, the company shall issue such securities in the name o the President of Islamic Republic of Pakistan as the Federal Government may direct.
(5) Unless an order so directs the property vested under subsection (1) shall be free from any charge, burden, hypothecation or encumbrances to which it may subject at the effective date of the order.
(6) If any property of the Corporation vests in the company subject to any charge, burden hypothecation or encumbrances the same shall be deemed to be on the assets of the company and the provisions of section 121 of the Companies Ordinance, 1984 (XLVII of 1984), shall apply to such charges, burden, hypothecation or encumbrances as if it had been created on the assets of the Company on the effective date for the Company.
(7) If any property of the Corporation vests in the National Telecommunication Corporation, the Authority or the Trust subject to any charge, burden, hyphenation or encumbrance, the same shall be the first charge by way of hypothecation in favour of the creditor.
(8) In this section, "property" includes assets, rights and entitlements of every description and nature wherever situated and "liabilities" includes duties, obligations, loans encumbrances, claims and charges of every description and nature (actual or contingent), whether or not they are capable, under any law of Pakistan or of any other State or under any agreement or otherwise, or being vested, transferred or assigned by the Corporation.
(9) No stamp duty shall be payable under any law for the time being in force on or in relation to the transfer or vesting of property of the Corporation under any order issued under subsection(1).
The above said provision of law has been elaborately interpreted by the Hon'ble Supreme Court of Pakistan in Masood Ahmad Bhatti's case (supra), the relevant extract from the same is reproduced below:- "Thus it is evident that at the moment of transition when the appellants ceased to remain the 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.
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.
Section 36 of the Reorganization 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 Reorganization Act, the terms and conditions of service of the appellants as on 1-1- 1996 stood conferred on them as vested rights under the said law."
8. After going through the principles enunciated in the judgment supra, no cavil left that the services of the petitioners are to be governed by the statutory rules as such the writ petition is maintainable in view of the law laid down in the case of Executive Council, Allama Iqbal Open University, Islamabad through Chairman and another vs. M. Tufail Hashmi (2010 SCM R 1484).
Reference can also be made to the case of Ghulam Rasool vs. Government of Pakistan through Secretary, Establishment Division Islamabad and others (PLD 2015 SC 6).
9. In response to the contention of the learned counsel for the respondents that in the present case the judgment rendered in Iqbal Nasir's case (PLD 2011 SC 132) will prevail as the Hon'ble Supreme Court of Pakistan has already granted Leave in Civil Petitions No. 511,512,527 to 532 of 2014 in order to re-appraise the said issue. It is observed that the judgment rendered in Iqbal Nasir's case (PLD 2011 SC 132) as well as Masood Ahmad Bhatti 's case (2012 SCM R 152) was handed down by the respective Benches comprising of equal number of Hon'ble Judges. It is well settled principle of law by now that in the presence of conflicting views of two equal Hon'ble Benches, later view will prevail.
Reliance in this regard can be placed on the cases of Messrs Al-Mahmudia (Pvt) Lt. Vs. Pakistan through Secretary, Ministry of Housing and Works, Islamabad and others (PLD 2007 SC 79), Mirza Mehboob Baig and others vs. Deputy Settlement Commissioner (Land) and others (2002 M LD 1512) and Tajammal Hussain Shah vs. Mst. Taj Aslam (1989 C.L.C. 662). Further more, leave granting order can never be termed as law enunciated by the Court binding upon the subordinate courts in terms of Article 189 of The Constitution of the Islamic Republic of Pakistan, 1973. Reference in this respect can be made to the cases of Haji Farman Ullah vs. Latif-ur-Rehman (2015 SCM R 1708) and Muhammad Tariq Badr vs. National Bank of Pakistan and others (2013 SCM R 314).
Above all the Hon'ble Apex Court in its recent judgment reported as Pakistan Telecommunication Employees Trust (PTET) through M.D. Islamabad and others vs. Muhammad Arif and others (2015 SCM R 1472) reiterated the same principles as laid down in Masood Ahmad Bhatti's case (supra) in the following words:- "Adverting to the submission of Mr. Shahid Anwar Bajwa, learned Advocate Supreme Court, we may note that while the Company may be entitled to fix the terms and conditions of service of its employees so also the provision of pension by the Board of Trustees of the Trust but as discussed above, as regards the employees of T&T Department transferred to the Corporation and then to the Company, their terms and conditions of service stand protected by the provision of section 9 of the Act of 1991 and sections 35, 36 and 46 of the Act of 1996 and thus they will be entitled to payment of increase in pension as is announced by the Government of Pakistan. The contribution of the Company to the Pension Fund determined by the Actuary and its payment by the Company does not appear to be of much relevance because the question before us is of entitlement of the respondents to the increase in pension. In the case of Secretary, Government of the Punjab, Finance Department and 269 others v. M. Ismail Tayer and 269 others [2014 SCM R 1336], this Court has held that while on completion to commutation period the civil servant is entitled to payment of full pension. It was noted, and such has been done time and again by this Court that pension is a part of a civil servant's retirement benefit and is not bounty or an ex-gratia payment but a right acquired in consideration of his past service which was a vested right with legitimate expectation.
The right to pension is conferred by law which could not be arbitrarily abridged or reduced except in accordance with law. The aspect of the statutory rules has already been dealt with above and we tend to agree with the rule laid down in the case of Masood Ahmed Bhatti (supra)."
10. The petitioners were proceeded under the law which was not applicable to them and they were thrown out of service with one stroke of pen without even affording any opportunity of hearing which even offends the fundamental rights guaranteed under the Constitution in terms of Article 10-A of The Constitution of Islamic Republic of Pakistan, 1973. The proceedings culminated into dismissal of service are the result of excess of authority and having no backing of law.
11. For the foregoing reasons, the act of respondents initiating proceedings under the P.T.C.L. Service Regulations, 1996 and terminating the services of the petitioners is declared to be without lawful authority and of no legal effect. Consequently, the petitioners shall be deemed to be in service.
With these observations, this writ petition as well as connected writ petitions are allowed.
12. Before parting, it is observed that the respondents are however, free to proceed against the petitioners on the basis of alleged charges strictly in accordance with law.