IJAZ UL AHSAN, J.---Through this common judgment we propose to decide Civil Petition No, 931 of 2017 and Civil Petitions Nos, 1657 of 2017 and 1659 of 2017 as common question of law and fact arise out of all these petitions. The petitioners in all these petitions challenge the consolidated judgment of a Division. Bench of the Islamabad High Court dated 28.02.2017 ("Impugned Judgment").
2. The petitioners were employees of Telegraph and Telephone Department (T&T Department), Government of Pakistan. Their services were transferred to Pakistan Telecommunication Company Limited (PTCL) consequently they were treated as, "Transferred Employees". In May 2007, as a part of its plan for restructuring the human resource of the Company in the post privatization scenario, PTCL introduced various packages including "Key Talent" package. This package offered New Terms and Condition of Service ("NTC") to its selected employees. NTC provided substantially enhanced salaries and other benefits, equivalent to the ones being offered in the open market for same/similar positions. However, the employees who chose to opt for NTC, were required to tender their resignations from their existing positions and execute fresh employment contracts.
Admittedly, the petitioners opted for NTC and tendered their resignations or in some cases took premature retirement. Thereafter they executed fresh contracts on the basis of new terms and conditions which, inter alia, included substantially increased salaries and other benefits. It appears that the petitioners continued to serve PTCL till 2009 when their services were terminated on the basis of a termination clause contained in their employment contract. The petitioners assailed such action before the Islamabad High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973. Their petitions were allowed by a Judge in Chambers of the said Court.
3. Aggrieved of the judgment of the Single Judge, PTCL filed an Intra Court Appeal (ICA) before a Division Bench of the same Court. The ICA was accepted, the judgment of the Single Judge was set aside and the Constitutional Petitions filed by the petitioners were dismissed through the Impugned Judgment. The petitioners who have appeared in person have argued that in terms of Clauses 16.1 and 16.2 of the Share Purchase Agreement executed between M/S Etisalat and the Government of Pakistan, the employees of PTCL were entitled to protection of their terms and conditions of service and that the same could not be altered or modified to their detriment. They also referred to section 36 of the Pakistan Telecommunication (Re-organization) Act, 1996 ("Act of 1996") to maintain that the terms and conditions of their service were protected by the said law.
They further maintained that they could not have opted out of a protection provided to them by law, even if, they wanted to. They finally argued that they had been discriminated against in so far as the Respondent Company had adopted a policy of pick and chose, while a few similarly placed employees were retained/taken back into service. The petitioners seek similar treatment.
4. We have heard the petitioners at length and carefully gone through the record. There is no denial of the fact that the petitioners were employees of the T&T Department and enjoyed the status, "Transferred Employees" of the company. The terms and conditions of their service were protected in terms of the Share Purchase Agreement between M/S Etisalat and the Government of Pakistan as well as section 36 of the Act of 1996. It appears that in 2007 pursuant to the privatization of the Company and in a bid to streamline its human resource, PTCL introduced inter alia a Voluntary Separation Scheme (VSS). Under the VSS, employees were given the option of a golden handshake scheme under which, in consideration of receipt of certain amount in lump sum, employees were to sever their employment relationship with the PTCL. However, certain employees who were required by the Company (for the time being) were placed in the, "Key Talent" category. In this category, employees were offered fresh contracts of employment under the NTC and promised much higher salary and other benefits. However, as a precondition such employees were required to tender their resignations and sever the relationship of employer and employee with the Company. However, the said package saved entitlement of such employees to receive pension for service under the T&T Department and the Company calculated up to the date of their resignation.
5. The petitioners opted for this package, voluntarily tendered their resignations, signed fresh contracts under the "Key Talent" category and were granted employment under the New Terms and Conditions. Admittedly, they received enhanced pecuniary benefits and rendered services in their respective capacities for more than two years. Although the petitioners have attempted to argue that they had been forced to tender their resignation/seek premature retirement, there is no denial of the fact that from the time of acceptance of NTC and till termination of their respective contracts, none of them lodged any protest or raised any objection that they had been forced to tender their resignations or execute fresh contracts and accept new terms and conditions of contract. They performed their services under the new scheme and accepted enhanced salaries and pecuniary benefits without protest or demur. We are therefore of the view that the stance of the petitioner that they were forced to accept NTC is an afterthought and a device to overcome the hurdle of having tendered their resignations, severed their relationship with the PTCL and entered into a fresh employment contract with the PTCL on the basis of NTC.
6. The petitioners laid great emphasis on the fact that the terms and conditions of their employment were protected through various instruments including section 36 of the Act of 1996 which provides that the terms and conditions of service of a transferred employee shall not be altered by the company except in accordance with the laws of Pakistan or with the consent of the, "transferred employees". It is clear and obvious to us that NTC offered enhanced and much higher pecuniary benefits, which the employees expressly consented to, accepted the same and enjoyed the benefits of the NTC for more than two years without protest or objection. Further, it cannot by any stretch of the language be held that the fresh contracts violated any laws of Pakistan or that the terms and conditions of service of the petitioners were altered or modified to their detriment and without their consent. An additional benefit was also available to the petitioners in the form of pension to which they were entitled upto the date of their resignation/premature retirement. The fact that they had tendered their resignations, which was a precondition of the NTC, were offered fresh contracts and they accepted such fresh contracts, performed duties thereunder for more than two years and received benefits under the same sufficiently and adequately establishes that the petitioners had consciously and with full awareness and application of mind executed fresh contracts of service and accepted all its terms and conditions including severing their earlier relationship with PTCL. This conscious decision was made in consideration of a much higher salary among other benefits which was admittedly much better than the one they were receiving at that time. In these circumstances, the argument of the petitioners that their resignations were not accepted or that the same were not formally communicated to them is of no consequence. By their acts and deeds both the parties clearly and categorically expressed their understanding and intention that the earlier relationship of employer and employee stood terminated; and that the petitioners were in a new contractual relationship with the Company, receiving a higher salary and other benefits in terms of their fresh employment contract.
7. We find that once the petitioners opted to tender their resignations their existing status as transferred employees and the protection and safeguards available to such employees (except the safeguard of pension) came to an end. Their new contract represented a fresh arrangement based upon the principle of 'Master and Servant' and their service was governed by the terms and conditions of their fresh contract. The protection under section 36(2) as, well as the agreement between M/S Etisalat and the Government of Pakistan cannot therefore be extended to the petitioners at this stage because now their relationship with their employer is governed by the principle of 'Master and Servant' on the basis of the terms and conditions of their new contract.
Even ,otherwise, having voluntarily accepted an offer made by the employer and the same having been acted upon by both the sides, the petitioners are estopped from resiling from the same. The intent behind section 36 was to ensure that the terms and conditions of employment of the Transferred Employees were protected from unilateral actions, without their consent and to their detriment. We have already held that NTC was accepted by the petitioners of their own free will consciously exercised and was ex facie not to their disadvantage. As such the petitioners cannot be allowed to blow hot and cold in the same breath and resile from their position and opt out of the contract and claim protection and safeguards which they had given up in bargain for higher salaries and benefits.
8. As far as termination of their services is concerned, one of the conditions of the contract of employment deals with the subject of termination. For ease of reference, the same. is reproduced below: "TERMINATION OF APPOINTMENT. Your services can be terminated by giving one (01) month notice period or gross salary equal to one (01) month in lieu thereof by either side. However the appointment shall be terminated if any document or information provided by you proves fake or false."
9. It is clear and obvious from perusal of the termination clause that there was an option to terminate the services of employee by giving one month notice or payment of one month salary in lieu thereof by either side. The employer also had the power to terminate the services of the employee if any document or information provided by him was found to be fake or false. The petitioners have attempted to argue that they were neither given one month notice nor paid salary in lieu thereof. If that is the case, the remedy of the petitioners lies in recovering amounts claimed by them through the competent fora. However, non-service of notice or non-payment of notice fee cannot furnish basis for reinstatement.
10. We also find that the assertion of the petitioners that they have been discriminated against is misconceived. The fact that one or more employees who were earlier employed by the Respondent-Company may have been rehired (the case of Dr. Tatheer Naz has been referred) does not establish discrimination. The right and discretion of the employer regarding the quality and quantity of the employees that it wishes to retain or rehire cannot lightly be interfered with in the absence of clear proof of mala fides and a systematic and conscious effort to discriminate. The mere fact that one or more employees out of the scores whose services may have been terminated in accordance with the terms and conditions of their letters of appointment have been rehired neither points towards discrimination nor shows any mala fides. The petitioners have not placed any convincing material on record to substantiate their claim of discrimination and we are not on the basis of available material able to record a finding favourable to the petitioners.
11. The petitioners have relied upon the following judgments in support of their contentions:- i) E. A. Evans v. Muhammad Ashraf (PLD 1964 SC 536); ii) Muhammad Masihuzzaman v. Federation of Pakistan (PLD 1992 SC 825), iii) Hamdullah v. Saifullah (PLD 2007 SC 52); iv) Muhammad Am/ad Malik v. PSO Co. Ltd. (2005 PLC (C.S.)
318); and. v) PTCL v. Masood Ahmed Bhatti (2016 SCMR 1362).
12. We have carefully scanned the judgments cited at the bar and find that the same have been rendered in different sets of facts and circumstances, are not intended to lay down the entire law on the subject and are in any event clearly distinguishable. Hence these are of no help to the case of the petitioners.
13. For reasons recorded above, we do not find any merit in these petitions which are accordingly dismissed. Leave to appeal is refused.