ABID AZIZ SHEIKH, J.--- This judgment will decide instant writ petition as well as connected Writ Petition No,25089/2010, Writ Petition No,25036/2010, Writ Petition No,25075/2010, Writ Petition No,25038/2010, Writ Petition No,25037/2010 and Writ Petition No,13738/2013 as similar questions of law and facts are involved in all these petitions.
2. The common grievance of the petitioners in all these writ petitions are that they were appointed as Area Manager with State Life Insurance Corporation (Corporation) in years 1994, 1995 and 1996, however, subsequently they were terminated from service in years 1997 and 1998. The petitioners are claiming their reinstatement in service with the Corporation under the provision of the Sacked Employees (Reinstatement) Ordinance, 2009 (Ordinance) promulgated on 14.2.2009 and the Sacked Employees (Reinstatement) Act, 2010 (Act) enacted on 08.12.2010.
3. Learned counsel for the petitioners argued that petitioners were appointed as Area Manager in years 1994, 1995 and 1996. They perform their duties satisfactory, however, they were terminated from service in years 1997, 1998. It is argued that under section 3 of the Ordinance and section 4 of the Act, the person appointed in Corporation during period from 01.11.1993 to 30.11.1996 but terminated from service between 01.11.1996 to 31.12.1998 is to be reinstated by his respective corporation. Submits that despite applications of the petitioners within prescribed time, they were not reinstated in service by respondent Corporation, whereas many other employees were reinstated in compliance with the Ordinance and the Act. They further submit that the Ordinance and the Act is applicable to the Corporation which is evident from the advertisement issued by the Corporation in daily Nawa-e-Waqt on 06.6.2009 whereby 36 employees were directed to contact Corporation for their reinstatement under the Ordinance and the Act. They further argued that plea of the respondent in their reply that petitioners appointment as Area Manager was not an appointment rather it was a promotion is factually incorrect. They further elaborated that appointment of petitioners as Sales Representative and thereafter their promotion as Sales Officer and Sales Manager had no nexus with their appointments as Area Manager. According to petitioners counsel, Sales Representative, Sales Officer and Sales Manager are not employee of Corporation rather they only bring clients to the Corporation and get their percentage from respective policies. Whereas Area Manager is a permanent employee of a Corporation against monthly salary and other benefit by Corporation, therefore, Area Managers are assigned appointment through direct recruitment and not by way of promotion from Sales Managers.
4. Conversely, learned counsel for the respondents argued that under section 2(0(i) of the Act, only those persons could be reinstated who were not only appointed but also terminated between 01.11.1993 to 30.11.1996. He submits that dates from 01.11.1996 to 31.12.1998 in section 2(0(i) is not for termination period but for golden handshake only Submits that as the petitioners were terminated after 30.11.1996, therefore, they cannot be reinstated under aforesaid provisions of law. Further submit that the question whether employee who was terminated can be reinstated under the Act is pending before august Supreme Court of Pakistan in Civil Petitions Nos,958 and 971 of 2013 in which leave has been granted, therefore, these petitions are not proceedable. He also placed reliance on Mazullah Khan v. Zonal Head State Life Insurance Corporation, Peshawar and others (2008 SCMR 617) to argue that Corporation was competent to terminate Area Manager whose performance was poor, therefore, Ordinance and Act is not applicable. Further submit that petitioners appointment as Area Manager was not a direct appointment in years 1994 to 1996 but petitioners were appointed as Sales Representative before 1994 and their appoint as Area Manager was result of promotion from the post of Sales Representative to Sales Officer then to Sales Manager and finally to Area Manager. Therefore, the Ordinance and the Act are not applicable to cases of the petitioners.
5. I have heard arguments of learned counsel for the parties and perused the record with their able assistance.
6. The moot question involved in these petitions is whether petitioners are entitled to be reinstated under provisions of the Ordinance and the Act. This not only requires interpretation of various provisions of the Ordinance and the Act but also their applicability to the facts and circumstances of these cases. For convenience, section 3 of the Ordinance is reproduced hereunder:-
(3) Reinstatement of Employees.--- Notwithstanding anything contained in any law for the time being in force, judgment of any Tribunal or a Court including the Supreme Court and the High Court, contract or terms and conditions of service, all persons appointed in corporation or Government service, during the period from the 1st days of November, 1993 to the 30th day of November, 1996 (both days inclusive) and dismissed, removed, terminated or given forced golden handshake during the period from the 1st day of November, 1996 to the 31st day of December, 1998 (both days inclusive) shall be reinstated immediately in service on one scale higher to their substantive scale of the post at the time of termination of service and report for duty to their respective departments or organizations.
7. Section 3 of the Ordinance is a non-obstante clause which provides that notwithstanding anything contained in any law or judgment of any Tribunal or Court, contract or terms and conditions of service, all person appointed in Corporation and Government service between 01.11.1993 to 30.11.1996 and dismissed, removed, terminated or forcibly given golden hand shake between 01.11.1996 to 31.12.1998 shall be reinstated immediately in service one scale higher to their substantive scale of post at time of termination. The said Ordinance was converted into an Act (Sacked Employees (Reinstatement) Act, 2010) and was duly published in the Gazette of Pakistan on 08.12.2010. Similar rather more beneficial provision as compare to section 3 of the Ordinance was introduced through Section 4 of the Act as under:--
4. Re-instatement of employees in service and regularization of employees' service.--- Notwithstanding anything contained in any law, for the time being in force, or any judgment of any tribunal or any court including the Supreme Court and a High Court or any terms and conditions of appointment on contract basis or otherwise, all sacked employees shall be re- instated in service and their service shall be regularized with effect from the date of enactment of this Act, in the manner provided as under."
8. Section 4 of the Act is also a non-obstante clause which says that notwithstanding anything contained in any law and judgment of any Court, all the sacked employees shall be reinstated in service and their services shall be regularized w,e,f, from the date of enactment of this Act in manner provide in section 4 of the Act.
9. Section 2(0(i) and (iii) of the Act defines the Sacked Employees as under:-- 2(f)(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 gold hand shake during the period from the 1st day of November, 1996 to the 12th day of October, 1999 (both days inclusive); 2(f)(iii) a person who was appointed or re-instated 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 who was subsequently dismissed or removed or terminated from service during the period from 1st day of November, 1996 to the 12th day of October, 1999 (both days inclusive) or who was intermittently dismissed, removed or terminated from service from time to time and re-instated through statuesque order or judgment of any tribunal or through any court including the Supreme Court or a High Court or through any administrative order or through withdrawal or any order conveying dismissal, removal or termination or by any other way on any date after the 1st day of November, 1996.
As per section 2(0(i) of the Act, a person is "Sacked Employee" if he was appointed as regular or ad hoc employee or on contract basis or otherwise in service of employer from 01.11.1993 to 30.11.1996 (both days inclusive) and was dismissed, removed or terminated from service during the period from 01.11.1996 to 12.10.1999 (both days inclusive).
10. In present writ petitions, the date of appointments of the petitioners as Area Managers and their dates of termination are tabulated as under:-{{TABLE TEXT}} Writ Petition No. Name of Petitioner Date of Appointment as Area ManagerDate of termination from the post of Area Manager W.P. No.12525/2009Nazar Waraich 10.1.1996 31.10.1997 -do- Asghar 10.1.1996 15.6.1998 -do- Iftikhar 19.6.1995 15.6.1998 -do- Ch. Nasir Mahmood10.1.1996 11.2.1998 -do- Rasheed Malik 10-1-1996 11-2-1998 -do- Javed Iqbal Gondal10.1.1996 15.6.1998 -do- Ch. Sarfraz Ghuman10.1.1996 09,9,1997 -do- Qamar Abdul Rehman10.1.1996 04.8.1997 W.P.No.25075/2010 Malik Abdul Ghafoor01.1.1996 12.6.1998 W.P.No.25036/2010 Abdul Majeed Kalair01.1.1996 12.6.1998 W.P.No.25089/2010 Rana Zulfiqar Ahmed01.1.1996 12.6.1998 W.P.No.25037/2010 Muhammad Yaseen Tariq01.1.1996 12.6.1998 W.P.No.25038/2010 Ayub Rizvi 01.6.1995 06.8.1997 W.P.No.13738/2013 Muhammad Nawaz Bhatti13.10.1994 29.7.1998 Perusal of petitioners dates of appointment as Area Manager and then their terminations shows that all the petitioners were appointed within cut off dates under the Ordinance and the Act i,e, between 01.11.1993 to 30.11.1996 and their services were also terminated within the prescribed period i,e, 01.11.1996 to 12.10.1999. It is not the case of the respondents that State Life Insurance Corporation is not a "Corporation" within the meaning of Corporation under the Ordinance and the Act or petitioners had not filed their applications for reinstatement within time. The main arguments of learned counsel for the respondent are firstly that cutoff date for termination provided in the Ordinance and the Act is 01.11.1993 to 30.11.1996 and not 01.11.1996 to 12.10.1999, secondly that petitioners were not appointed but promoted as Area Manager; thirdly that petitioners services were terminated for poor performance, therefore, they cannot be reinstated and lastly that the august Supreme Court granted leave to appeal in similar matter, hence these cases should await outcome of petitions pending before august Supreme Court.
11. I have carefully examined the above arguments and found them to be of no force for reasons discussed below. So far as first argument is concerned, the provision of section 2(f)(i) of the Act is self explanatory and unambiguous. According to said provisions, an employee who was appointed from 01.11.1993 to 30.11.1996 and was dismissed, removed or terminated from service or given forced golden hand shake during 01.11.1996 to 12.10.1999 is to be treated as "Sacked Employees" for the purpose of reinstatement under section 4 of the Act. Section 2(f)(iii) of the Act also clarify that termination cut off date is 01.11.1996 to 12.10.1999. If interpretation as put forth by respondents counsel is accepted, then there will be not cut of date for termination in the Act, hence result would be that those employees who were appointed between 01.11.1993 to 30.11.1996 are entitled to be reinstated regardless of their date of termination which may be even after 12.10.1999. From clear provisions of the Act, this is neither the intention of the legislature nor it advances the case of the respondents in any manner. The second argument of learned counsel for the respondents that petitioners appointments as "Area Manager" were not directed appointments but were result of promotion is also not supported by documents. Record shows that earlier when petitioners were promoted from Sales Representative to Sales Officer and then as Sales Manager, their promotion letters specifically provided that they were promoted by the Competent Authority. However, in case of their appointments as "Area Manager", their appointment letters does not say that their appointments are by way of promotion by competent authority rather their appointment letters specifically stipulates that petitioners are appointed as Area Manager. Mere fact that their previous performance was considered for their appointment does not make it a case of promotion and not appointment. These appointment letters also support the contentions of the petitioners that Sales Representative, Sales Officer and Sales Manager are not employee of the Corporation against salary but their earning is based on percentage payable to them proportionate to number of policies and clients they bring to the Corporation. Whereas the post of Area Manager is an employment against monthly salary with the Corporation against which person is directly appointed by the Corporation which may be based on his past performance and not by way of promotion from Sales Manager to Area Manager like other promotions in Service. This leaves no doubt that petitioners were not promoted but appointed as Area Manager. The third argument of learned counsel for the respondents that the Ordinance and the Act are not applicable because services of the petitioners were terminated due to poor performance, in this regard, there is no cavil with the argument that the respondent corporation can terminate services of it employee for poor performing. However, non-obstante provision of section 3 of the Ordinance and Section 4 of the Act do not draw any distinction between employees who were terminated with cause or who were terminated without cause. As per these provisions if an employee dismissed, removed or terminated from service between 01.11.1996 to 12.10.1999 will be reinstated. Further case law relied upon by respondent counsel is also not relevant as in the said judgment, the applicability of the Ordinance and the Act was neither in question nor was discussed.
12. I have also carefully considered the forth argument of the learned counsel for the respondent that as in C.Ps.Nos,958 and 971 of 2013, leave has been granted by august Supreme Court of Pakistan, therefore, these cases are not proceed able. Perusal of august Supreme Court leave granting order dated 13.9.2013 shows that leave has been granted to examine the question, that once the dismissal from service of a employee is already upheld up to the level of august Supreme Court whether through the Sacked Employees (Reinstatement) Ordinance, 2010, such person could be reinstated. Learned counsel for the petitioners categorically stated that in none of these petitions, termination orders of the petitioners were previously challenged before any Court including this Court or august Supreme Court of Pakistan. This factual position is not controverted by learned counsel for the respondents. Therefore, the leave granting order of august Supreme Court is not applicable to the facts and circumstances of these cases which are to be decided on their own merits.
13. It is also admitted on all hands that respondent Corporation in compliance of the Ordinance issued publications in daily Nawa-e-Waqt dated 06.6.2009 to reinstate 36 contract employees terminated during the period specified in the Ordinance. The petitioners therefore, also make out a case of discrimination under Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. In similar situation, the Hon'ble Sindh High Court and Islamabad High Court reinstated employees under the Ordinance and the Act in following cases Muhammad Nawaz Abbasi v. Federation of Pakistan and others (2012 PLC (C.S.) 1037), Hidayatullah v. Federation of Pakistan and others (2011 PLC (C.S.) 1299), Waqar Alam and others v. Secretary Establishment Division and others (2013 PLC (C.S.) 12), Javed Hussain Langha and others v. Government of Pakistan and others (2014 PLC (C.S.)
507).
14. In view of above discussion, these petitions are allowed and petitioners are held to be entitled to the benefit of section 3 of the Ordinance and section 4 of the Act. The respondent Corporation is accordingly directed to process the applications of the petitioners and give them benefit of the Ordinance and the Act.