SYED ARSHAD ALI, J.----Petitioners, Muhammad Shafique Shah and others, through the instant constitutional petition, seek the following relief: "In the light of abovementioned facts and circumstances it is humbly prayed that on acceptance of instant writ petition appropriate writ may kindly be issued to: 1) That, respondents be directed to treat the petitioners in accordance with law and not otherwise: 2) Declare decision made in 88th meeting of Board of Directors held on 17.12.2019 regarding the lay off the employees as against the law, unconstitutional, without any legal authority, based on mala fide and of no legal effect as against the rights of the petitioners.
3) That, directions may kindly be issued to the respondents to retain the petitions in the services of PTDC as other employees have been retained by them.
4) That, further directions may kindly be issued that if all properties of PTDC are to be transferred to the respondents Nos. 4 and 5 the same should not be transferred until and unless the issue of service structure of the petitioners and their liabilities as mentioned para No. 5 of facts of this petition is not settled by the respondents.
That respondents Nos. 4 and 5 may kindly be further directed to absolve the petitioners in services at Provincial level with all the rights which they have presently and they further be directed to provide treatment to petitioners equal to employees of TC KP.
6) The respondents may kindly be directed not to disturb the services of the petitioners.
7) Any other relief which this Honourable Court finds proper in the facts and circumstances of the case".
2. Brief facts of the case, as narrated in the petition, are that the petitioners are the regular employees of Pakistan Tourism Development Corporation ("PTDC") having 20/25 years service at their credit and are posted in different places of Khyber Pakhtunkhwa including Naran, Balakot, Besham, DICs and TIC Abbottabad, however, after passing of 18th amendment in the Constitution of Islamic Republic of Pakistan, 1973 ("The Constitution"), Ministry of Tourism Department was devolved upon the Provinces and in consequence thereof, properties/assets/liabilities belonging to PTDC along with all management/employees working in FIDC were also to be transferred to the respective Provinces. It is averred in the petition that the Board of Directors in its 77th meeting has decided that properties shall be transferred to the Provinces after resolving the related issues including the liabilities of employees towards the Corporation, but, in the meanwhile, respondents Nos.4 to 6 issued. Notifications dated 01.09.2014 whereby their officials, with the assistance of local administration, tried to take possession of the properties of respective sites and ousted the petitioners forcibly from their office. The petitioners, in order to protect their rights, approached this court through Writ Petition No. 2759-P/2014. The said Writ Petition along with identical petitions came up for hearing on 19.06.2019 and was disposed of with direction to the respondents to carry out the whole proceedings, as given in Notification dated 17.05.2019 of the Government of Pakistan, within a period of four months positively from the date of receipt of this judgment. Thereafter, the Board of Directors in its 87th meeting held on 24.10.2019 sought comprehensive proposals in order to complete the process, however, the Board of Directors in its 88th meeting held on 29.11.2019, instead of making mechanism for transfer of employees, laid off the employees on a so-called nominal lay off package. Feeling aggrieved from the aforesaid act of respondents, the petitioners have approached this Court through the instant constitutional petition.
3. Respondent No.1 has filed the parawise comments and opposed the contents of petition by stating that the Board of Directors in its 78th meeting deliberated on the issues of transfer of assets to the Provinces and protection of employees vide Agenda No. 5 and it was decided that "the transfer of employees/facilities to the Provinces, Azad Jammu and Kashmir and Gilgit Baltistan shall be subject to the payment of pending salaries, benefits, etc and no action shall be taken to their disadvantage. PTDC shall provide the profiles of the employees to the provinces, Gilgit Baltistan and Azad Jammu and Kashmir for re-employment at their discretion". Further stated that PTDC is not legally bound to make an offer of Golden Handshake Scheme ("GHS") to its employees, however, owing to the long-term services rendered by them, it has decided to give them a reasonable good package.
4. Similarly, respondent No.3 has also filed almost the same comments as filed by respondent No. 1.
Likewise, respondent No.5 has also filed comments and raised an objection that this Court lacks territorial jurisdiction to issue, any writ because the petitioners have challenged the action of Federal Government which is only challengeable before Islamabad High Court. Further stated that the Province of Khyber Pakhtunkhwa vide Notification No.SO(T)5-73/PTDC/Vol:111-2014/7737 dated 01.09.2014 assumed the administrative control, management of PTDC properties located in the province of Khyber Pakhtunkhwa but due to restraining order, initially, from this Hon'ble Court and subsequently from the Hon'ble Islamabad High Court, the same could not be materialized.
5. Arguments heard and record perused.
6. 'PTDC' is a Federal Entity, established as 'Tourism Company by the Federal Government by incorporating it as company under the Company Laws of Pakistan.
7. Prior to 18th Amendment, Tourism was in erstwhile concurrent legislative list of fourth schedule at serial No.42. On promulgation of 18th Amendment in the Constitution, the concurrent list was abolished and the subject of tourism was, thus, devolved to the provinces. Through the same Amendment, Article 270-AA was inserted into the Constitution. Sub-Article (8) of Article 270-AA envisages that on the omission of the concurrent legislative list, the process of devolution of the matters mentioned in the said list (concurrent list) to the provinces shall be completed by the 30th day of June, 2011. Sub-Article (9) of Article 270-AA further envisages that for the purpose of devolution process under Clause "8" the Federal Government shall constitute an Implementation Commission as it may deem fit within 15 days of the commencing day of the 18th Amendment Act, 2010. Pursuant to the above, Ministry of Inter Provincial Coordination (IPC) was assigned the task of regulating the management of PTDC as its assets were to be assigned to the respective provinces.
Needless to mention, that the PTDC have valuable assets in various provinces of Gilgit Baltistan and Azad Jammu and Kashmir.
8. On 28.07.2014, the Cabinet Division of the Federal Government issued office order for taking appropriate steps for the transition of assets of PTDC to the respective Provincial Government, Gilgit Baltistan and Azad Jammu and Kashmir. Later, the Board of Directors of PTDC had convened series of meeting to discuss the post of 18th Amendment scenario relating to the affairs of PTDC and transferring its assets to the respective provinces Gilgit Baltistan and Azad Jammu and Kashmir.
We need not to refer to all the meetings, however, the last meeting in this regard is the 88th meeting of the Board of Directors of PTDC, whereby, various options relating to laying off the employees of PTDC was discussed. The relevant portion of the said decision taken by the Board of Directors of PTDC in its 88th meeting is reproduced as under:- "e. The Board decided the below mentioned goodwill package on compassionate grounds and in recognition of the services of the employees upon termination of their services, retrenchment and operational closure of establishments. The ex-gratia package may be extended to all employees including those on leave or deputation with an estimated date of lay off as mentioned above. The Board was well aware of the legal position related to ex-gratia payment and reserves the right to review the package anytime before making any such offer to the employees: Employee > 20 yrs service: 3 running basic pay for complete length of service. Employee < 20 yrs service: i. 3 running basic pay for each completed year of service or ii. 1.25 running basic pay for remaining months of service max 50 months basic pay.
Whichever is greater in i and ii Payment of legal dues-earned leave payment (max 365 days of leave account), Provident Fund payment, Arrears of Pay and Allowances if any Payment of House rent allowance for max of 6 months.
Adjustments of all financial liabilities/dues on part of employees from full and final payment. Income tax and other applicable government tax deductions.
The above scheme shall not be applicable to the employees of corporation and its subsidiaries who are retiring within 2 year on the date of offer of ex-gratia package. However, their services will be dispensed with by grant of pay and allowance for remaining period of service/superannuation including the legal dues as admissible subject to adjustments of all financial liabilities on part of employee (Officer/workmen) from the full and final payment.
This package shall not be applicable to those employees who are engaged on contract basis, daily wage employees, part time basis employees or those permanent employees against whom disciplinary proceedings/cases or inquiries are pending or who's case are in court of law.
The applicability of ex-gratia package to such employees shall be decided in the light of final outcome of court decision/disciplinary proceedings".
9. When the learned counsel for the petitioner was asked that how the decision of the Board of the Directors of PTDC offend any guaranteed right of the present petitioners, he could not satisfy this Court by referring to any provision of law guaranteeing any right of the petitioners which was violated by the Board of Directors of the respondents corporation. Instead we have noted that under the enabling provision of West Pakistan industrial and Commercial Employment (Standing Orders) Ordinance, 1968, the permanent employees of any establishment on its closure or in case of retirement of the employees are entitled to gratuity on the basis of last pay drawn, however, in the present case the incentive offered to the present petitioners is more lucrative than the guaranteed right of workmen employed in an. establishment
10. Moving on to the second submission of the petitioners that the respondents be issued appropriate directions for absorption of the employees of the PTDC as the assets of the PTDC are to be devolved to the province of Khyber Pakhtunkhwa. In this regard, the petitioners could not refer to any law binding the respondents Provincial Government to absorb the employees of PTDC who were being laid off and furthermore, when the PTDC has offered retiring benefits to the present petitioners then they have no case for their absorption in the services of the province. Even otherwise, this Court was informed by the learned Additional Advocate General that the Provincial Government has neither agreed with the management of PTDC nor has evolved any mechanism for the absorption of the employees of PTDC rather the employees of the Tourism Department of the Khyber Pakhtunkhwa have been parked in a surplus-pool.
11. In this view of the matter, we find no merit in this petition as the grievances of the present petitioners have already been addressed by the PTDC as evident from the decision rendered by the management PTDC in its 88th meeting.
12. Resultantly this petition having no merit is dismissed.