Muhammad Junaid Ghaffar , J: All listed applications are for alleged contempt and or for execution of order dated 8.2.2018, whereby , Defendants/alleged contemnors were directed to implement Memorandum of Understanding (MOU ) dated 18.3.2016 signed between the Association of Plaintif fs (PALPA) and PIA in respect of promotion of Pilots operating on B-777 to A-320 aircrafts.
Learned Counsel for the plaintiffs has argued that through order dated 8.2.2018 this Court pursuant to Para 28 thereof had given certain directions for promotion of first officers of B-777 Aircraft to A-320 Aircraft directly as Captains without compulsory training on ATR Aircraft as Captains, and this was in view of MOU dated 18.3.2016 as agreed upon by the parties, whereas, 15 days' time granted by the Court has passed but such directions are yet to be complied with; that it is only after filing of these contempt proceedings that some meetings were held by the defendants / alleged contemnors but no minutes of such meeting held on 23.2.2018 have been released; that initially PALPA had filed its written statement pursuant to directions of this Court whereby they were impleaded as defendants and supported the case of the plaintiffs, but now suddenly after induction of new management through fresh elections they have made an attempt to resile from the earlier stance which is also contemptuous; that PALPA in compliance of order of this Court wrote letter dated 10.2.2018 to PIA and requested to promote the first officers (plaintiffs) as A-320 Captains as per seniority, with further request that ATR's should be sidelined from mainline promotion equipment, whereas, ATR should be flown through contract / optees pilots; however, PIA management in defiance of the Courts orders is yet to act upon it; that through letter dated 12.2.2018 again PIA was reminded and so also requested to immediately renew the licenses of all plaintiffs as directed; that alleged contemnor No.1 through his letter dated 12.2.2018 has responded to PALPA showing complete defiance and disobedience to the orders of the Court; that Court has also directed to communicate the outcome of its directions and meeting with PALPA to the plaintiffs but this has not been done as well; that only part compliance regarding renewal of license and training has been made but that too on further orders of the Court; that plaintiffs made hectic efforts to get the order implemented and in support he has referred to various correspondence through emails made by the plaintiffs and has contended that none was properly replied; that again PALPA wrote letter dated 28.3.2018 to PIA for compliance but that was also not responded positively; that PIA has also filed an Appeal against the order as above, but neither the order has been suspended nor any restraining order has been passed; therefore PIA and alleged contemnors are bound to implement the order in question in letter and spirit without raising any objections; that entire order has not been implemented, whereby, methodology was to be evolved nor the plaintiffs have been issued roster on B 777 Aircraft; that according to the response of alleged contemnors the deadline of 15 days was not met; hence contempt has been committed; that even all alleged contemnors have not filed their response; that letter dated 25.4.2018 issued by PIA annexed with fresh contempt application reflects that PIA has decided not to implement the order of the Court; that this Court has already decided that MOU dated 18.3.2016 between PIA and PALPA is an enforceable contract, therefore no exception can be drawn subsequently; that old procedure of promotion and training cannot be applied and implemented after passing of the above order; that new executive committee of PALPA is now misleading the members / plaintiffs in implementation of its own MOU as PIA management is exerting undue pressure on them; that in respect of training of plaintiffs lame excuses have been raised by PIA and alleged contemnors regarding non-availability of stimulators and in this regard he has referred to letter dated 18.4.2018 of PIA which according to him is back dated letter to mislead the Court as though slots were very much available but no timely training program has been issued; that even newly elected Secretary of PALPA has taken forced leave due to pressure being exerted on him by PALPA and PIA to retract from the earlier stance of PALPA; that new management is pleasing PIA; that now it is only an ego issue for alleged contemnors not to implement the orders of the Court; and finally per learned Counsel on the basis of his submissions, clear and gross contempt has been committed therefore necessary proceedings be initiated against all; in support he has relied upon Dr. A.N.M. Mahmood v Dr. M.O.Ghani, Vice Chancellor & Others (PLD 1967 Dacca 67), Messrs Yousf Sons v Muhammad Khalid & Others (PLD 2005 Karachi 316).
On the other hand learned Counsel for PIA / alleged contemnor has contended that MOU dated 18.3.2016 is to be read and understood in its totality specially clause 2 thereof, as though it provided for promotion of first officers of B-777 to A- 320 as Captains; but subject to employment of contract pilots on ATR, which has not been possible due to a very Luke- warm response, hence it cannot be implemented as it is, failing which PIA will have to abandon / suspend the operations of ATC aircrafts which caters to domestic travel to the remote areas; that the Court has not finally decided the case in favor of plaintiffs, but has only directed to devise a methodology, hence no contempt has been committed as alleged, otherwise a direct and clear order would have been passed for promotions of the plaintiffs as claimed; that High Court Appeal has been preferred even otherwise, and certain orders have been passed on 7.3.2018 and 9.3.2018, therefore, the order in question has merged with the orders of the Appellate Court, hence no case for contempt is made out; that if the argument of plaintiff is accepted as contended, then these 6 pilots will be promoted directly to A-320 without mandatory training and working as Captains on ATR which in turn will affect a number of other pilots who have already gone through such procedure, whereas, others will follow the same path and ultimately PIA will have to suspend the operation of ATR's; that for such purposes the Appellate Court has already directed that all measures be taken for continuing the operations of ATR; that plaintiffs want to avoid the training / working as Captains of ATR which is flown within the Country and want to enjoy foreign travel on A-320 and perks and benefits for such travel; that while passing the order in question no assistance was sought from PALPA who has been impleaded as a defendant after passing of the order, whereas, PALPA's stance is not what has been described in the MOU as it is going to affect a large number of its members; that all plaintiff have been invited for next ATR course which they have refused and this is going to affect their carrier in future as though their seniority is being maintained presently, but not for all times to come; that salary is being paid and enjoyed by them without any work which is not justifiable, and cannot continue anymore; that no ego is involved as alleged, rather it is a question of National Carrier and its polices; that if the plaintiff had not come to Court and had agreed to the existing procedure, by now they would have been Captains on A-320 even otherwise; that in past all have gone through the same procedure notwithstanding the MOU in question; that it is settled law that if two possible views can be inferred from an order, then no contempt is committed and according to him in this matter there are two possible views present, hence no contempt has been committed as alleged; in support he has relied upon the cases reported as M. Bakht v State (1972 P.CrLJ 96), Asif Hussain Jaffri v K.B.Bhutto (PLD 1990 Karachi 173), Muhammad Jamil v Mst. Zohra (1998 CLC 766), Nasim Hasan v KMC (1984 CLC 2896 ), S.M. Yousuf v S.K. Rahim (PLD 1969 SC 77), Qadeer Ahmed v Punjab (PLD 1990 SC 787), Abdul Sattar v IT O (PLD 1989 Karachi 264 ) and Muhammad Pinyal v The State (PLD 1967 Karachi 652 ).
Learned Counsel for PALPA has adopted the arguments of learned Counsel for PIA and has contended that in fact the order in question was passed in absence of PALPA and without their stance on record; that though earlier a written statement has been filed supporting the case of the plaintiffs but according to the learned Counsel it is an admitted fact that the erstwhile president of PALPA is related to one of the plaintiffs in Suit No.1501/2017 (being brother), hence such stance does not reflect the true and correct position of PALPA, whereas, such written statement was filed on last date of their term i.e. 23.2.2018; that notwithstanding this PALPA has made compliance of the order in question by complying with directions and no contempt has been committed; that before these contempt applications can be heard and decided the application of PALPA for filing a new and substituted written statement be decided first; that admittedly when efforts were made to induct new/contract pilots for ATR, it was not successful and resultantly the MOU could not be implemented in its letter and spirit; that orders passed in High Court Appeal have materially changed the complexion of the order in question and so also the responsibility of PALPA; that PALPA would not want that anybody be allowed to violate or by pass a set procedure as it would create difficulty and claims from others as well; that after induction of new committee a voting was done on this issue and only 3 members supported the same, whereas, 11 voted against it; that no willful disobedience has been shown against P ALPA; therefore all contempt applications be dismissed.
While exercising his right of rebuttal learned Counsel for the plaintif fs has submitted that learned Single Judge while passing the order in question has already considered and repelled the arguments now being made; that MOU was an outcome of approval by the Boar d of Directors of PIA, hence valid and binding, therefore applications be allowed.
I have heard all learned Counsel and perused the record. It may be noted that at the outset, learned Counsel for the plaintiffs was confronted as to maintainability of these applications of contempt / execution under Section 36 CPC, on the ground that firstly the order has been appealed and certain orders have been passed by the Appellate Court which may have bearing on the final outcome of the proceedings; and secondly, stance of PALPA has changed and an application has been filed to treat their earlier written statement as discarded, and thirdly, methodology as directed has been arrived at; however, learned Counsel prayed for decision on merits on the ground that it is a case of clear and gross contempt of the orders of the Court.
It appears that instant Suit has been filed by the plaintiffs seeking enforcement of MOU dated 18.3.2016 reached between PIA and PALPA, and primarily their concern is in relation to Para 2 of the said MOU in respect of promotion of first officers of B-777 as Captains of A-320 aircrafts without taking training and or work assignment on ATR aircrafts. This in fact in nutshell is their entire Suit and grievance as well. This Court vide its order dated 8.2.2018 has been pleased to dispose of the injunction applications of all plaintiff in the following terms as contained in Para 28 thereof;
28. In the wake of above discussion, the aforesaid civil miscellaneous applications are disposed of in the following terms:-
1. Pakistan Airline Pilots Association (PALPA) is impleaded as defendant No.3 in the suits. The counsel for the plaintif fs is directed to file amended title within seven days. The office is directed to issue notice to PALPA with the copy of this order on filing amended title by the plaintif fs? counsel.
2. Seeing as PIAC has recognized that PALPA is a bargaining representative of pilots so being a designated representative authorized to negotiate and conclude agreement with PIAC on behalf its members, PALPA is also directed to look into the matter for attaining and accomplishing some methodology in terms of MOU dated 18.3.2016 for further steps.
3. PIAC management is directed to convene a meeting with PALPA representatives within fifteen days to work out the methodology as agreed to be evolved between PIAC and PALPA in accordance with MOU dated 18.3.2016 to place First Officers of Boeing 777 as captain of A320 subject to completion of training as per seniority and communicate the result of negotiations to the plaintif fs in writing.
4. During the aforesaid negotiation period allowed for working out a methodology in terms of MOU, the management of PIAC shall not compel the plaintif fs to join transition training course for promotion as Captain ATR, however , the plaintif fs will continue to perform their duties being First Officer as per roster till such time the outcome of negotiations is intimated to them.
5. On account of filing present suits for promotion, the PIAC management shall not disturb the actual seniority of the plaintif fs in their present cadre. However the flying licenses of the plaintif fs shall be regulated in accordance with law .
Perusal of the aforesaid order reflects that the Court came to the conclusion that PALPA is to be impleaded as a defendant in this matter; that since PIA has recognized PALPA as a bargaining representative of pilots, therefore PALPA is also directed to look into the matter for attaining and accomplishing some methodology in terms of MOU dated 18.3.2016 for further steps; that PIA management is directed to convene a meeting with PALPA with 15 days to work out methodology as agreed in accordance with MOU dated 18.3.2016, to place first officers of Boeing-777 as Captain of A- 320 subject to completion of training as per seniority and communicate the result of negotiations to the plaintiffs in writing; and during such period PIA shall not compel the plaintiffs to join transition training course on ATR's, whereas, they will continue to perform duties as First Officers as per roster till such time the outcome of negotiations is intimated to them; and finally, on account of present Suits, the management shall not disturb their actual seniority in present cadre, however, their flying licenses shall be regulated in accordance with law.
It needs to be appreciated that insofar as clause 1 above is concerned, there is no issue at least for present contempt applications. Insofar as clause 2 is concerned, again no case for initiating any contempt proceedings is made out against PALPA officials at least, because it is only a direction to look into the matter for attaining and accomplishing some methodology in terms of MOU dated 18.3.2016 for further steps. These are mere directions to look into and are to be complied with, whereas, despite a changed stance, they have approached PIA with copies of the order of the Court for such purposes, hence I am of the view that contempt applications against PALPA officials are liable to be dismissed and it is so ordered accordingly.
Insofar as remaining clauses as above (3, 4&5) are concerned, it relates to PIA and steps to be taken, and it is the case of the plaintiffs, that no concrete steps have been taken by them, therefore, they have disobeyed the order. In fact the case as pleaded by the learned Counsel for the plaintiff is that an order has been passed by the Court whereby, clause 2 of the MOU dated 18.3.2016 has been directed to be implemented without fail and any reservations. However, a careful perusal of the above reproduced portion of the order in question reflects that again learned Counsel's contention is misconceived as perhaps to my understanding; there are no clear and concrete directions as contended. It is only to the effect to convene a meeting within 15 days to work out methodology as agreed in the MOU for placing the First Officers of Boeing-777 as Captain of A-320, subject to completion of training as per seniority and communicate the result of negotiations in writing. First is to convene a meeting within 15 days, and as informed such meeting has been convened but for reasons so explained, it was done after 15 days as directed. In that case I am of the view it is not of such nature, that a contempt notice be issued. The order to that effect stands complied with; hence, even if meeting was convened after 15 days' time, it stands condoned. As to the second part the directions were only to evolve a "methodology", and not more. It is not that entire prayer in the Suit has been granted at the injunctive stage, nor it could have been granted for that matter. The plaintiffs through contempt proceedings are in fact seeking the entire relief in their Suit, which is yet to be decreed. Mere directions for evolving a "methodology" would in no manner amount to granting the prayer in the Suit or even in the injunction application; otherwise clear and specific directions would have been given in respect of promotion of all plaintiffs directly on to A 320 without any further ifs and buts. The third part is to communicate the result and outcome of the convened meeting in writing. This also stands complied with, hence on this account also no case for contempt is made out.
It is a matter of record that a meeting as directed has been convened and a methodology dated 25.4.2018 has been worked out as reflected from the Counter Affidavit of alleged contemnor No.1. This is now a part of the record and at least the plaintiffs stand communicated through this counter affidavit, if not earlier. Through this methodology certain measures have been agreed upon by PIA and PALPA, and though learned Counsel for the plaintiffs has disputed such methodology, as being against the spirit of MOU, and has contended that it is also against the directions and orders of this Court in question. However, I am not inclined to agree with such contention, at least for the time being. The new or modified understanding is that all first officers of B-777 should first be promoted / routed as Captain ATR, subject to fulfillment of regulatory requirements; that they shall be promoted on the next equipment i.e. A-320 as per seniority; that the plaintiffs (6 first officers/plaintiffs) would be entitled to retain seniority position above the junior officers who are promoted to ATR before them and no pilot junior to them in seniority will be promoted on the A 320 before them; that PALPA Executive Committee shall commence negotiations with PIA for new working agreement 2018-2020 for a better relationship and for betterment of National Flag Carrier.
Insofar as retaining the seniority as well renewal of licenses is concerned, again this has been done and conceded, therefore again no issue is left to that effect. All in all I am of the view that no case for initiating contempt proceedings against PIA is made out as the order stands complied with in its true letter and spirit.
Nonetheless, there is another aspect of the matter as well. A High Court Appeal has been filed in respect of the order of which contempt has been filed, and certain orders have also been passed by the Appellate Court. Though the order in question has not been suspended nor any restraining orders have been passed, except certain modification, (which is crucial in nature for the present purposes), but nonetheless, in my view the nature of the order dated 8.2.2018 is such, that if any implementation of the same is given as contended, then perhaps the entire appeal of PIA will become infructuous, as by that time the order in appeal / challenge will no more be in field. This could cause serious prejudice to PIA, as a right of appeal is a substantive right in nature, and must not be deprived of. If orders passed on injunction application(s) of the like nature in question, are implemented in contempt proceedings in this manner, then perhaps all such appeals by the time they are decided finally, would abate because of such reason(s), i.e. being already implemented through contempt proceedings.
Secondly , it also needs to be appreciated that the relevant clause of the MOU dated 18.3.2016 reached between PIA and P ALPA read that;
2. For ATR Captains qualified human resource would be hired on contract basis which may extend up to 5 years. The methodology shall be worked out to place First Officers of Boeing 777 as captain of A320 subject to completion of training as per seniority .
And it is only this clause of which the plaintiffs seek implementation through instant Suit. This only provides to devise a methodology to be worked out to place first officers of Boeing 777 as Captain of A-320 subject to completion of training as per seniority. This is to be read in its entirety and not in isolation. Both appear to be co-related, whereas, the entire clause is to be enforced, if any, and not part of it. Moreover, the Appellate Court in HCA No.46 of 2018 vide its order(s) dated 7.3.2018 and 9.3.2018 has also recorded the following observations which are crucial for deciding the listed applications; Order dated 7.3.2018 "We have heard both the learned Counsel at length and are of the view that since the matter between appellant and respondent No. 1 is pending adjudication before the learned Single Judge, hence, we refrain ourselves from passing any order with regard to either maintainability of the suit or with regard to the locus standi of the respondent No. 1, which would be decided on its own merits. So far as the apprehension of the learned Counsel for the appellant is concerned that ATRs would become non-operational due to the non-availability of the Captains / Pilots is concerned, which is opposed by learned Counsel for respondent No. 1, we under the circumstances direct the PIA Management to hold an immediate meeting with the PALPA to device a meeting so that all the ATRs of the PIA would remain operational in scheduled manner so that neither PIA nor its passengers would suffer. We are sanguine that PALPA, to whom notice is yet to be issued in the instant matter , would cooperate with the PIA Management and some arrangement / amicable settlement would be reached between the PIA and the PALPA that in case Captains / Pilots of the ATRs are not available due to any reason the Captains / Pilots of A320, who are qualified and capable to fly ATRs, would be available to fly those ATRs, as per the flight schedule of the ATRs, which definitely should not disturb the schedule of the flights of the A320 aircrafts. In our view, PALPA has to play a pivotal role in this behalf to convince the Captains / Pilots of A320 that in case the Captains / Pilots of ATRs are not available to fly ATRs in order to save the Corporation from any financial losses / unhappy situation etc. The PIA Management would also make hectic efforts to try and convince the PALPA in the larger interest of the Corporation / country in this behalf. It is clarified that the above arrangement would be purely temporary in nature and would be without prejudice to the rights of the respo ndent No. 1, PALPA or the appellant in the instant matter or other matters before different fora, since legal litigation is pending between the parties, which however , would be decided on the basis of the merits of each case independently ."
Order dated 9.3.2018 "2. Mr. Haseeb Jamali advocate waives notice. Let the instant matter along with the main case come up for haring on 14.03.2018. In the meantime notice be issued to the respondent No. 2 for the said date. Meanwhile it is expected from the PIA Management and PALPA that they will devise a mechanism to resolve the issue involved in the instant matter so that neither any flight of ATR nor A320 should be disturbed and will also keep in view the directions already issued by this bench vide order dated 07.03.2018.
The combined gist and cumulative effect of the above orders is that all efforts are to be made to ensure that neither the operations of ATR nor A-320 aircrafts are affected. It is but natural that Captains on A-320 will not be willing to fly an ATR as Captain, as they have already been promoted to A-320 aircraft after doing such training and work on ATR's. It can't be expected that for the time being as an interim measure they get themselves demoted for satisfying any claim of the plaintiffs. Therefore, for the present purposes, this could only be done when the first officers of B-777 continue with the old procedure for the time being until the issue is finally decided by the Appellate Court or resolved amicably by the parties itself.
And this is what the Court has observed in its order of which contempt is being sought. This Court is unable to understand as to what contempt has been committed. It is not that a methodology must be devised only which satisfies the claim of the plaintiffs. Devising of a methodology does not necessarily means that it must stand satisfied as claimed. It could go either way. The Court in its order dated 8.2.2018 has not said that it must be to the claim and satisfaction of the plaintiffs, whereas, it is to be read with MOU in its entirety; therefore, on this count as well no case for contempt is made out.
In view of hereinabove facts and discussion I am of the view that all applications of contempt / execution filed on behalf of the plaintif fs as listed above are liable to be dismissed and it is so ordered accordingly .
All listed Applications stands dismissed.