MUHAMMAD SAJID MEHMOOD SETHI, J.---- This judgment shall also decide I.C.As. Nos.861, 1773, 1774, 1775, 1776, 1777 and 1778 of 2015, 238473, 238475, 238476 and 238478 of 2018, 1013 31 of 2017, 294, 296, 297, 301, 302, 303, 304, 305, 306, 307, 311 and 316 of 2012 and Review Application No.76 of 2013, as common questions of law and facts are involved in these appeals.
2. Through instant appeal, appellants have assailed consolidated judgment dated 16-11-2015, passed by learned Single Bench of this Court, whereby constituted petitions filed by respondent and others challenging their dismissal from service orders, were allowed and initiation of proceedings under the PTCL Service Regulations, 1996 as well as respondents' termination orders were declared to be without lawful authority and of no legal ef fect.
3. Brief facts of instant appeal are that respondent was appointed as Driver in erstwhile Telephone and Telegraph Department, Government of Pakistan on 2-9-1979. Pursuant to respondent's agitation for provision of Ad hoc Allowance, 2010, he was served with show-cause notices dated 25-8-2010 and 5-10-2010, which culminated in passing of dismissal from service order dated 13-11-2010. The said order was challenged through constitutional petition, which was allowed vide the impugned consolidated judgment. Earlier , all the appeals / ICA filed by appellants were dismissed by this Divis ion Bench vide judgments dated 3-5-20 16 and 25-1-2016, which were assailed before Hon'ble Supreme Court by filing Civil Appeals Nos. 1746 to 1751 of 2016 and Civil Petition No. 730 of 2016, whereby vide order dated 13-2-2019, the impugned decisions were set aside and matters were remanded for decision afresh on merits and in accordance with law .
The facts in connected appeals filed by appellants PTCL are also similar , however , posts and dates of appointment and dismissal from service of respondents therein are different. The connected I.C.As. Nos. 238473, 238476 and 238478 of 2018, filed by employees are arising out of consolidated judgment dated 13-3-2018, whereby constitutional petitions were dismissed.
4. Learned counsel for the, appellant PTCL while distinguishing paragraph No.18 from judgment in Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary , Ministry of Information Technology and Telecommunication and others (2012 SCMR 152) has argued that this judgment is applicable to civil servants and not applicable to employees in I.C.As. Nos. 302, 303 of 2012, 861 of 2015, 238473, 238475, 238476 and 238478 of 2018, because they had joined duty after 1-1-1991. They next submit the I.C.As. Nos. 296, 297, 301, 304, 316 of 2012, 101331 of 2017, 1774, 1776 and 1778 of 2015, relate to the employees who were not civil servants in terms of section 2(1)(b) of the Civil Servant Act, 1973, besides being in Telephone and Telegraph Department. They further submit that employees in I.C.As. Nos. 305, 306, 307, 311 of 2012, 1772 and 1777 of 2015, though are civil servants but covered by the Labour Laws and employees in I.C.A. No. 1773 of 2015, are civil servants but disciplinary matters are not part of the terms and conditions of service, therefore, the judgment in Masood Ahmed Bhatti's Case was not applicable. They contended that last seven lines of paragraph No. 18 from Masood Ahmed Bhatti's Case , as being relied upon by learned counsel for the respondents, are also not applicable because focus of the observ ations is on the Federal Government guarantee, which was held not available to the employees who jointed after 1-11-1996. They contend that said case is applicable only to civil servants of the Pakistan Telecommunication Company Limited ("PTCL") and Pakistan Telecommunication Corporation ("PTC") who were in service till 1-1-1996, he has read first three lines of the judgment which show that the appeals were filed by the civil servants employed by the Federation and T&T Department. They argued that statutory status has been given only to the terms and conditions of the employees of T&T Department and PTC and have read first three lines of paragraph No.9 of the judgment in Masood Ahmed Bhatti's Case . They further clarify that rules, which did not relate to terms and conditions, were not declared as statutorily protected by Masood Ahmed Bhatti's Case. They further submit that statutory rules to the extent of terms and conditions of service only to the employees appointed before 1991, and appellants in Masood Ahmed Bhatti's Case were civil servants and employee of the T&T Department before 1991. To further elaborate arguments on fourth category , they have read section 8 of the Pakistan Telecommunication Corporation Act, 1991 ("Act of 1991"), to submit that Rules entailed to be made under this section after 1991, were not required to be approved by Federal Government, therefore, were not statutory in nature. Laying emphasis on Clause 3 of section 8, ibid, learned counsel submit that rules for proceeding against, under disciplinary action, the employees of the Corporation on the date of Act of 1991 were to be made by the Corporation itself without any approval from the Federal Government, therefore, the Government Servants (Efficiency and Discipline) Rules, 1973 ("Efficiency and Discipline Rules, 1973" ) were not applicable even on the employees of the T&T Department after promulgation of the Act of 1991. In support, learned counsel placed reliance on Chief Manager , State Bank of Pakistan , Lahore and another v. Muhammad Shafi (2010 PLC (C. S.) 1088) and Muhammad Zaman and others v. Gove rnment of Pakistan through Secretary , Finance Division (Regulation Wing), Islamabad and others (2017 SCMR 571). They contend that the Act of 1991 was repealed by Pakistan Telecommunications (Re-organization) Act, 1996 ("Act of 1996") w.e.f.
01.01.1996, where-under PTCL authorizes Federal Government to form a company and in exercise of this power , PTCL was got incorporated under the then Companies Ordinance, 1984. He has read Section 59 of the Act of 1996 to submit that the rules and regulations under the Act of 1996 were not saved unde r this clause. On a Court's query that this saving clause is to be read with Section 6 of the General Clauses Act, 1897, they reiterated their stance and referred to Muhammad Din v. Nazar Muhammad Khan and others (PLD 1966 Lahore 780). They also referred to paragraph No.25 from the judgment in Pakistan Telecommunication Co. Ltd. through Chairman v.
Iqbal Nasir and others (PLD 2011 SC 132). They argue that provisions of General Clauses Act, 1897 and in particular provisions of its Section 6 are not applicable and cannot be read with saving provisions under Section 59 of the Act of 1996, ibid. To further support the argument, they have read saving clauses of various enactments by Federal Government to show that rules have been saved in most of the saving clauses, which are not saved under the provisions of Section 59 ibid. They maintain that the rules applicable to employees before cutof f date i.e., 01.01.1996 were of PTC, which is no more in existence, therefore, the employees cannot be given protection of its rules. Learned counsel have read Section 2(1)(b) of the Civil Servants Act, 1974 to contend that a worker or workman has specifically been ousted from the definition of civil servant. They explain that employees in Category No.3 are shown with their designations, who were workers or workmen, as defined in the Factories Act, 1934 ("Act of 1934") or the Workmen's Compensation Act, 1923 ("Act of 1923") at the relevant time; cannot be construed as civil servants for the purpose of applying Efficiency and Discipline Rules, 1973. To further explain the submission, learned counsel have read Section 2(1)(n) of Workmen's Compensation Act, 1923 read with Entry No.(ix) of the Schedule II to submit that employees engaged in setting up, repairing, maintaining, or taking down any telegraph or telephone line or post etc. fall within the definition of workmen. Further submit that all the employees including supervisors and wiremen etc. also fall within the definition of workman as given in the Act of 1923. Learned counsel conclude that the employees falling in third category were admittedly not civil servants and fall within the definition of workman as explained above, therefore, the Efficiency and Discipline Rules, 1973 could not be applied. For second category , they submit that though they were civil servants, but were workmen under the Pakistan Industrial Relations Ordinance, 1969 and the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
5. Conversely , learned counsel for respondents submits that matter to the extent of possession of quarters was remanded by Hon'ble apex Court, which was subject matter of the lis pending before Hon'ble Islamabad High Court, however , judgment of this Court was against dismissal of respondents, which order was set-aside by learned Single Bench while deciding writ petitions on the ground that action should have been taken under the Efficiency and Discipline Rules, 1973. They further submit that judgment reported as Masood Ahmed Bhatti and others v.
Federation of Pakistan through Secretary , Ministry of Information Technology and Telecommunication and others (2012 SCMR 152) was in field at the time of passing of order of learned Single Judge, which deals with the legal proposition to the extent of civil servants, who later became employees of PTCL.
6. Arguments heard. Available record perused:
7. The operative part of the observations of Hon'ble Apex Court, vide order dated 24.08.2017 in Civil Petition Nos.
591 to 600 of 2017, is reproduced hereunder:- "2. The legitimate grievance expressed by the learned ASC for all the petitioners is that, the principle of law laid down by this Court in the cases (C.R.Ps. Nos. 247 to 249/1 1 and C.P. No. 423/1 1) along with others, the learned Bench of the Lahore High Court did not attend to it minutely and it was omission on the part of the Bench to approach the matter in controversy in light of the principle laid down by larger Bench of this Court in the case referred to above with deep judicial thought, therefore, petitioners' cases have been prejudiced premature.
3. When the learned counsel was confronted with the consistent view of this Court that no petitions out of interim orders are normally entertained by this Court, because, the interim order always merges into the final order , whether it is in conformity with the final order or otherwise and then a petition can be brought before this Court, the learned counsel conceded to this legal position however , his apprehension was that the Bench has referred to the said case decided by larger Bench of this Court but could not capture the contact legal position emanating there- from thus, the view held is misconceived one and that will have adverse effect on the final decision. We expect that the learned Division Bench of the High Court would attend to the principle laid down in the case of PTCL v. Masood Ahmad Bhatti (2016 SCMR 1362 ) with deep judicial thought to correctly perceive what this Court wanted to achieve and formulate as a principle of law. It is also expected that the High Court would give preference to decide the case of the petitioners as early as possible."
8. Under Article 189 of the Constitution, this Court is bound to follow the direction and the appeals are being decided keeping in view the principles already laid down by Hon'ble apex Court in the case of Masood Ahmad Bhatti (2016 SCMR 1362 ).
9. The history of decision in Masood Ahmad Bhatti's case supra, is that three aggrieved civil servants / employees of Telephone and Telegraph Department approached learned Sindh High Court, however , they were non-suited by learned Division Bench on the ground that their employment with PTCL was not governed by statutory rules. The aggrieved persons approached Hon'ble Apex Court and their appeals were allowed in case reported as Masood Ahmed Bhatti and others v. Federation of Pakistan through Secr etary , Ministry of Information Technology and Telecommunication and others (2012 SCMIR 152), wherein it was held that all the employees recruited before 01.01.1996 have statutory protection whereas services of employees recruited after said date would be contractual in nature and would, therefore, be non-statutory . The relevant observations are reproduced hereunder:- 18......... It is important, at this point, to draw a distinction between employees who stood transferred to PTCL by virtue of section 35, ibid and the Vesting Order , on the one hand and those employ ees, who joined PTCL after 1-1- 1996. The protection under the Federal Government guarantee would not be available to the latter category whose terms and conditions of service would be, contractual in nature and would, therefore, be non-statutory ."
10. The employees recruited before 01.01.1996 were treated and considered as a class for the purpose of treating them as employees to be regulated by statutory rules and this protection is also available in S.R.O. 115(1)/96 dated 07.02.1996, also referred in above judgment. The relevant portion from the above judgment containing the SRO is reproduced below:- "13. .............
"Islamabad, the 7th February , 1996.
S.R.O.1 15(I)/96.----In exercise of the powers conferred by section 35 of the Pakistan Telecommunication (Re- organization) Ordinance, 1995 (CXV of 1995), hereinafter referred to as "the said Ordinance" and in supersession of its Order No.S.R.O.(I)/96, dated the 1st January , 1996, the Federal Government is pleased to direct that--
(1) all properties, rights and liabilities (including business under taking, goodwill, contingent rights and liabilities) to which the Pakistan Telecommunication Corporation (Corporation) was entitled and subject to, after the transfer of the properties, rights and liabilities to the Authority , National Telecommunication Corporation, Pakistan Telecommunication Employees Trust and Frequency . Allocation Board through the Federal Government, on the 31st of December , 1995, with effect from the 1st January , 1996, vest in and has [sic] become the properties, rights and liabilities of the Pakistan T elecommunication Company Limited (Company);
(2) all employees of the Pakistan Telecommunication Corporation, after the transfer of the employees to the Pakistan Telecommunication Authority , National Telecommunication Corporation and Frequency Allocation Board of the Federal Government, on the 31st of December , 1995, stood transferred to and has [sic] become the employees of the Pakistan T elecommunication Company . Limited with effect from the 1st January , 1996".
It is evident from the above extract that all properties, rights and liabilities of the Corporation were vested in PTCL with effect from 1-1-1996 except for those transferred to the remaining four entities. Likewise, all employees of the Corporation other than those transferred to the other four entities referred to above, stood transferred and became employees of PTCL with ef fect from 1-1-1996 by virtue of the V esting Order ."
11. Furthermore, Section 2(t) of 'the Pakistan Telecommunication (Re-organization) Act, 1996 ("the Act of 1996"), also covers all the employees both of Corporation and T&T, for the purpose of protection under the Act, 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 subsection (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."
The Hon'ble apex Court, after appreciating the above provision observed as under:- "11........The first such provision relates to "Telecommunication Employees". This term has been defined in section 2(t) of the Reorganization Act. It means such employees "of the Corporation who are transferred to the employment of the Company under this Act, other than those to whom subsection (3) of section 36 applies". Section 36(3) relates only to those persons who were employees of the Corporation but subsequent to be Reorganization Act have been transferred to or employed by the Authority , the NTC, the Trust or the Board. Since the present appellants were neither transferred to nor employed by any of these four entities, section 36(3) has no application to them."
12. Needless to observe here that protection has been provided to the employees of T&T as well as of PTC in: terms of section 12 of Pakistan Telecommunication Ordinance, 1995 ("the Ordinance of 1995"), which is reproduced hereunder:- "12. Transfer of employees of Corporation.---(1) Notwithstanding anything contained in any law for the time being in force, as from the transfer date, all employees of the Corporation, whether recruited initially or became such employees under Section 9 of the Pakistan Telecommunication Corporation Act, 1991 (XVIII of 1991), shall stand transferred to, and become employees of the Company on the same terms and conditions which were applicable to them immediately prior to the transfer date and thereby cease to be the employees of the Corporation;"
13. The Hon'ble pex Court, after going through the provisions of the Pakistan Telecommunication Corporation Act, 1991 (" the Act of 1991 "), Ordinance of 1995 and Act of 1996, has made following observation: "11. We have already observed that between 1991 and 1996 when the Corporation was in existence, the rules of employment applicable to the appellants were statutory rules having been given such status by virtue of section 9 of the PTC Act....
For the employees of PTC, protection has been provided under Section 35(2) of the Act of 1996 and has been affirmed in the said judgment in Paragraph No. 16, which is reproduced hereunder:- "16. 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."
The Hon'ble Apex Court further observed that:- "7.... It is, as noted above, not in dispute that prior to the establishment of the Pakistan Telecommunication Corporation (the Corporation) under the PTC Act in 1991, the appellants were civil servants. It is also not a matter in contention that at that time (prior to 1991) the appellants were governed by the various rules and of rules which among others were applicable to the relationship between the appellants and their employer namely , the Federal Government. Such rules, undeniably , were statutory , having been framed under rule-making powers granted to the Federal Government, inter alia, under the Civil Servants Act, 1973."
14. Against the judgment of Hon'ble Apex Court in Masood Ahmed Bhatti 's Case (2012 SCMR 152), Civil Review Petitions Nos.247 to 249 of 2011 were filed, but the same were dismissed vide judgment dated 19.02.2016, reported as PTCL and others v. Masood Ahmed Bhatti and others (2016 SCMR 1362 ), with the observations that employees of Pakistan Telegraph and Telephone Department (Department) on their transfer to the PTC became employees of the Corporation under section 9 of the Act, 1991 and then of PTCL under section 35 of the Act, 1996; that their terms and conditions of service were fully protected under section 9(2) of the Act of 1991 and 35(2) of the Act of 1996; that none of the terms and conditions could be varied to their disadvantage; that legislature also bound Federal Government to guarantee the existing terms and conditions of service and rights including pensionary benefits of the transferred employees; that such employees became employees of the Corporation in the first instance and then the Company , therefore, they did not remain 'civil servants' any more but the terms and conditions of their service provided by sections 3 to 22 of the Civil Servants Act, 1973 and protected by section 9(2) of the Act of 1991 and sections 35(2), 36(a) and (b) of the Act of 1996 were essentially statutory; and that violation of any of them would thus be amenable to the constitutional jurisdiction of the High Court.
However , the Hon'ble Supreme Court observed that the case reported as Pakistan Telecommunication Corporation and another v. Riaz Ahmed and 6 others (PLD 1996 SC 222) was incorrectly decided whereas judgment reported as Pakistan Telecommunication Company Ltd. through Chairman v. Iqbal Nasir and others (PLD 201 1 SC 132 ) was distinguished.
It is re-emphasized that if the arguments of learned counsel for appellants-PTCL are entertained, the same would tantamount to review the judgment of Hon'ble Apex Court in Masood Ahmed Bhatti's Case, which is beyond the jurisdiction of this Court in terms of Article 189 of the Constitution.
15. In view of the above, it is declared that all the employees recruited before 01.01.1996 have statutory protection and employees recruited after said date are governed by non-statutory rules being their employment as contractual in nature. Consequently , instant appeal as well as I.C.As. Nos.294, 296, 297, 301, 302, 303, 304, 305, 306, 307, 311 and 316 of 2012, 861, 1773, 1774, 1775, 1776, 1777 and 1778 of 2015 and 101331 of 2017 are dismissed whereas I.C.As. Nos.238473, 238475, 238476 and 238478 of 2018 and Review Application No.76 of 2013 are allowed. No order as to costs.