Muhammad Junaid Ghaf far J. This is a Suit for Declaration and Injunction through which the Plaintif fs have sought a Declaration that Administrative Order No.13/2013 dated 4.4.2013 is a term and condition of service, and cannot be unilaterally modified and or varied, and as a consequence thereof, the subsequent Administrative Order No. 17/2016 dated 14.7.2016 ("impugned order") is illegal, unlawful, without any authority or jurisdiction and ultra vires to the Constitution of Islamic Republic of Pakistan, 1973.
2. Learned Counsel for the Plaintif fs has contended that since only a legal issue is involved and Plaintif fs do not wish to lead any evidence, the entire Suit along with listed application be decided at this stage; that Plaintif fs are employees of the Defendant in the category of Cabin Crew and until issuance of Administrative Order No. 17/2016, were working in Pay Group V ("PG-V") ; that prior to this they were working in Pay Group IV ("PG-IV"); however , Administrative Order No. 13/2013 was promulgated after approval by the Board of Directors and all cabin crew employees were given PG-V and were accordingly promoted to PG-V ; that pursuant to Administrative Order No. 13/2013 the Plaintif fs were issued separa te promotion letters and were also granted enhancement in their Basic Pay Scale at the highest prevalent standard; that on 23.5.2013 Administrative Order No. 27/2013 was also issued containing the revision of pay scale and allowances of cabin crew in Pay Group IV to VIII; that as a consequence thereof, the Plaintif fs were notified as officers and fell outside the plane of the workers union as they were no more workers as such; that the Workers Union of PIA was aggrieved by this Administrative Order No.13/2013 and approached National Industrial Relations Commission at Karachi ("NIRC") through Grievance Petition and on 12.4.2013 the said Admin Order was suspended; however , subsequently , the said Petition was dismissed for non- prosecution; that the Defendant thereafter , kept the same in abeyance whereas, the Plaintif fs were never given any opportunity to present their case; that certain other employees / affectees approached this Court by filing C.P. No. D-3596/2014; however , the Plaintif fs then came to know through the impugned Order that the Management has cancelled / withdrawn Administrative Order No.13/2013 which has been done without lawful authority , jurisdiction and without affording any opportunity of hearing to the Plaintif fs; that the Plaintif fs all were promoted and paid salaries and benefits as per PG-V and therefore, the impugned Admin order could not have been passed and issued in the manner it has been done, and therefore, the Plaintif fs are entitled for the relief prayed for. In support he has relied upon Government of N.W .F.P. V. I. A. Sherwani and another ( PLD 1994 SC 72 ).
3. On the other hand, learned Counsel for PIA / Defendant has argued that the competent authority which had issued the Administrative Order No.13/2013; has thereafter , again being the competent authority , withdrawn / cancelled the same and therefore, no exception can be drawn to such an act; that upon issuance of Administrative Order No.13/2013 two worker 's union including the then CBA in PIA had challenged the same before NIRC, wherein the said Admin Order was suspended, therefore, the Management could not act upon the same and has subsequently withdrawn / cancelled it; that it is a conscious decision by the competent authority which is permissible under Section 20 of the General Clauses Act, 1897; that Amin Order 13/2013 was only an up-gradation of the post / pay scale of the Plaintif fs, and was never a promotion to a higher grade; hence, no case is made out.
4. I have heard both the learned Counsel and perused the record. Since only a legal controversy is involved and Plaintif fs Counsel on 7.5.2019 had argue d that the Plaintif fs do not wish to lead any evidence and the entire Suit with pending applications be heard and decided on the legal controversy , and despite no consent being given by the Counsel for PIA to such proposition; I am of view that once the Plaintif fs choose not to lead any evidence and requests a decision of the entire Suit on the legal issue, it then rests with the Court to first examine such contention, and if the Court is satisfied in that context; can then decide the legal issue in terms of Order 14 Rule 2 CPC and it is not necessary that defenda nt or for that matter parties, must also consent to such proposition. Even otherwise, Rule 22(7) of the Sindh Chief Court Rules (OS) confers additional powers in addition to the powers under CPC to try any Suit as a short cause matter . After examining the prayer clause in the Suit, it is my view that the Plaintif fs entire case is premised only on a legal proposition i.e. whether the Defendant had any lawful authority to issue Amin Order 17/2016 for cancellation / withdrawal of Admin Order No.13/2013, in the manner they have done, and that too without affording any opportunity of hearing to the Plaintif fs. In view of such position, I have heard both the learned Counsel on the entire Suit on the legal proposition so raised on behalf of the Plaintif fs along with pending applications. For such purposes following legal issues are settled as Court Issues.
(i) Whether through Admin Order No.17/2016 dated 14.7.2016 (whereby Amin Order No.13/2013 was cancelled / withdrawn) the Plaintif fs promotion orders dated 8.4.2013 could be deemed to have been withdrawn / cancelled?
(ii) Whether the Plaintif f's promotion order(s) dated 8.4.2013 could be withdrawn / treated as cancelled without following due process and principles of natural justice?
(iii) What should the decree be?
Issue No.(i) Negative Issue No.(ii) Negative Issue No.(iii) As Decreed
5. The facts insofar as issuance of Admin Order No.13/2013 and its subsequent cancellation / withdrawal through another Admin Order No.17/2016 are not in dispute. It would be advantageous to refer to both these Admin Orders which read as under:- "HR, Admin & Coordination Department ADMIN ORDER NO. 13/2013 Dated 4th April, 2013 PROMOTION OF CABIN CREW FROM PG-IV T O PG-V
1. Management has approved up-gradation of position of Flight Steward / Airhostess from Pay Group IV to Pay Group V , henceforth, all initial inductions of Cabin Crew staf f be made in Pay Group V .
2. Subsequently , all flight Steward / Airhostesses in PG-IV are hereby promoted to PG-V w .e.f. 05.04.2013.
3. All promotees shall be entitled to 10% promotional increase as per rules.
4. This has been approved in 347th Meeting of PIA Board of Directors, held on 04.04.2013.
Authy: MD/Chairman Sd/- RASHID AHMED Aetg. Director HR, Admin & Coordination DISTRIBUTION : Deputy Managing Director (Engg:)
All Directors / CFO / CIA SA to the Managing Director All General Managers & Equivalents Secretary PIA All HR DGMs / HR Managers All Area / Station Heads PIA Intranet"
"HR, Admin & Coordination Department ADMIN ORDER NO. 17/2016 Dated July 14, 2016 CANCELLA TION OF PROMOTION / UPGRADA TION OF CABIN CREW
1. Management has decided to cancel / withdraw Admin order No. 13/2013, dated 04.04.2013, on the above.
Authority: 374th BM & A/Chief Executive - PIACL Sd/- RASHID AHMED Director HR, Admin & Coordination DISTRIBUTION: Deputy Managing Director (Engg:)
All Directors / CFO / CIA SA to the Managing Director All General Managers & Equivalents Secretary PIA All HR DGMs / HR Managers All Area / Station Heads PIA Intranet"
6. It further appears that pursuant to Admin Order No.13/2013, separate Local Admin Orders dated 8.4.2013 were issued in favor of the Plaintif fs for Promo tion from PG-IV to PG-V and they also do not appear to be in dispute.
They are identical and therefore, one such order issued in favor of Plaintif f No.1 is also reproduced as under:- "LOCAL ADMIN OFFICE ORDER DMHR/CSD/PROM/2013 CF0420130251 Dated April 08, 2013 Mr. S. Ali Haider P-61276, Flight Steward, Karachi.
PROMOTION FROM PG-IV T O PG-V We are pleased to inform you that you have been promoted from PG-IV to PG-V as Senior Flight Steward with effect from 05.04.2013, under the provisions of Admin order No. 13/2013, dated April 04, 2013.
Upon this promotion, your basic pay will be increased @ 10% as promotional increase or will be fixed at the initial basic pay of PG-V , whichever is higher .
We hope that this will further improve your performance and you will put in your best endeavors to enhance the productivity and overall image of the Corporation in years to come.
We wish you best of luck.
Sd/- RIZW AN AHMED AWAN Dy . General Manager Human Resources Customer Services Department DISTRIBUTION: General Manager HR Management General Manager Flight Services Chief Medical Of ficer General Manager Security Services DGM Payroll / Taxes Finance Manager Flight Operations / Services -KHI Manager Uniform (P & L)
HR Manager (Flight Services)"
7. Perusal of Admin Order No.13/2013 reflects that the Management had approved up-gradation of position of Flight Stewards / Airhostesses from PG-IV to PG-V and it was further decided that simultaneously all initial inductions of Cabin Crew shall be made in PG-V . It was further decided that subsequently , all flight Stewards / Air Hostesses in PG-IV are hereby promoted to PG-V with effect from 05.04.2013, whereas, all promotees shall be entitled to 10% promotional increase. It further appears that pursuant to this Admin Order , on 8.4.2013 individual promotion letters were also issued to the Plaintif fs (issuance of which has not been denied in the written statement at Para-5, except that it lost its existenc e pursuant to order of NIRC, which would be responded to later in this judgment) which states that we are pleased to inform that you have been promoted from PG-IV to PG-V as Senior Flight Stewards with effect from 5.4.2013 under the provisions of Admini strative Order No. 13/2013 and upon this promotion your basic pay will be at the rate of 10% as promotional increa se or will be fixed at the initial of basic pay of PG-V whichever is higher . Record further reflects and as contended by the Defendant' s Counsel that on 12.4.2013 NIRC passed an order on a Petition filed by People' s Unity of PIA Employees suspending Admin Order No.13/2013. Thereafter , another grievance petition was also filed by another workers union; however , it is not in dispute that the said Petitions were dismissed for non-prosecution on 22.5.2014. It further appears that the Pakistan Airline Cabin Crew Association also filed a Petition bearing No. D-2773/2014 primarily impugning the order of suspension of Admin Order No.13/2013 by NIRC, which was also dismissed on 25.08.2017 for non- prosecution. On one of the dates of hearing i.e. 6.8.2019, Counsel for Defendant was directed to place on record the authority i.e. 374 BM & A / Chief Executive-PIACL as referred to in Admin Order No.17/201 6, and in response, learned Counsel has filed statement dated 27.08.2019 and made an attempt to argue that decision was taken in accordance with the practice and policy of PIA and along with this statement as Annexure "B" he has placed some internal documents generated / initiated by the Deputy General Manager , Policy and Procedure Section, and the same reads as under:- "Ref: NO.HRA&C/083/P&P Dated: June 30, 2016 Minute-1 CANCELLA TION OF PROMOTION / UP-GRADA TION OF CABIN CREW
1. The PIAC Board of Directors in its 374th Meeting has inter-alia taken following decisions: Up-grading the Position of Airhostess / Flight Steward from Pay Troup-IV to Pay Group-V
34. Board rescinded its earlier decision taken in 347th Meeting, held on April 03, 2013 regarding up- grading the position of Airhostess / Flight Steward from Pay Group-IV to Pay Group-V at paragraph number 218.
2. In the past, the 347th BM decision, stated above, was notified vide Admin order No. 13/2013, dated 04.04.2013, however , its compliance was with-held due to representation of CBA before the Court.
3. Draft Admin Order for cancellation / withdrawal of AO 13/2013 has been prepared (placed opposite) and is submitted for clearance / approval.
Sd/- 30.06.2016 ABDUL RAUF AKHT AR Dy. General Manager P&P Sd/- 30.06.2016 GENERAL MANAGER P & C Sd/- 30.06.2016 DIRECT OR ADMIN & COORDINA TION Sd/- 30.06.2016 CHIEF EXECUTIVE PIACL"
8. According to the learned Counsel for the Defendant this is the decision as well as the authority to pass and issue Admin Order No.17/2016, through which the earlier Admin Order No.13/2013 was cancelled / withdrawn. Perusal of the aforesaid minutes or letter or internal memo, by whatever name it may be called, reflects that the summary has been generated / initiated by the Deputy General Manager (P & P) for approval of the competent authority , and it is in respect of a decision of Board of Directors taken in 374th meeting, whereby , the earlier decision taken in 347th Meeting of the Board on the basis of which Admin Order No.13/2013 was issued. Para-2 thereof, states that in the past the 347th BM decision, stated above, was notified vide Admin Order No.13/2013 dated 04.04.2013; however , its compliance was with-held due to representation of CBA before the Court and now it has been decided to withdraw / cancel the same. However , even assuming for the moment that the Board could do so; but at the same time it needs to be appreciated that it is not only the question of withdrawal / cancellation of Admin Order No.13/2013 through another Admin Order; inasmuch as admittedly , the Plaintif fs pursuant to Admin Order No.13/2013 were also promoted (and not up-graded) through separate promotion orders giving them PG-V from PG-IV , whereas, issuance of such promotion order(s) is not in dispute except that it had lost its existence. Though again presuming this fact to be true as contended by the Defendant; however , it further appears to be an admitted position that after suspension of this Admin Order by NIRC; through Letter / Circu lar dated 23.05.2014 issued by the Industrial Relations Division of the Defendant, copy of order dated 22.05.2014 issued by the NIRC regarding dismissal of the Petition of the Union(s) for non-prosecution was circulated and it has been further reiterated that in the above background and in view of the dismissal of the stay order by the learned Member of NIRC, the promotion orders already issued w.e.f. from 05.04.2013 have become operative. Such document is available at Page 197 and reads as under:- "Industrial Relations Division May 23, 2014 The Registrar Trade Unions (R TU) Authorized Of ficer National Industrial Relations Commission Islamabad.
Subject: Copy of the order dated 22.05.2014 passed by Dr. Qamaruddin Bohra learned Member NIRC Karachi bench .
Sir,
1. Vide order dated 05/04/2013 all the Cabin Crew of PIAC working in PG-IV were upgraded / promoted to PG-V .
2. This act of the management was challenged by the CBA before the NIRC at Karachi. The learned member NIRC suspended operation of the promotion orders.
3. Vide order dated 22/05/21014 (copy enclosed), the above position has been dismissed by NIRC for non- prosecution.
4. In the above background and in view of the dismissal of the stay order by the learned member of NIRC, the promotion orders already issued w .e.f. 05/04/2013 have become operative.
5. It is therefore submitted that all the Cabin Crew of PG-IV in PIAC stands promoted to PG-V by virtue of the order of this commission, hence provisions of IRA 2012 are no longer applicable on the Cabin Crew working in PIAC.
Sd/- Mehar H. Changez General Manager Industrial Relations.
C.C. Director - HR, A & C"
9. It further appears that the HR Mana gement Division also issued a Letter on 23.05.2014 with a subject of implementation of Administrative Order No.13/2013 reiterating the same, that since the Petition of the Unions stands dismissed; the salary fixation of all cabin crew currently in PG-IV shall be made in PG-V as spelled out in Administrative Order No.13/2013 immediately and be made effective retrospectively from 05.04.2013. It further appears that this implementation of Amin Order No.13/2016 continued till issuance of the impugned Admin Order No.17/2016. On an overall examination of the entire material placed on record which does not appear to be in real dispute, and has been issued by the Defendant itself, it appears that the Defendant while issuing Admin Order No.17/2016 has done so and acted unilaterally . Admittedly , no notice of whatsoever nature was issued to the Plaintif fs; nor they have been confronted or given an opportunity to submit and plead their case. And this fact has been conceded to by the Defendant' s Counsel. The documents annexed with the statement dated 23.8.2019 by the Defendant' s Counsel, regarding approva l of the competent authority for cancellation of Administrative Order No.13/2013 through a fresh Admin Orde r No.17/2016 are also silent as to the issuance of any notice to the Plaintif fs. In fact it is not denied that their promotion orders dated 8.4.2013 issued pursuant to Admin Order No.13/2013 and revived and implemented again through letters dated 23.5.2014 are still in field and have not been individually withdrawn or cancelled. It is only on the basis of a presumption that since, Admin Order No.13/2013 has been cancelled, impliedly all such promotion orders also deemed to be cancelled. However , it is not the case here; nor it could be. These promotion order(s) are independent and individual in nature, and for their cancellation or withdrawal, proper and independent notices were a bare minimum to be issued to the Plaintif fs. There is nothing in this entire material which could clarify and explain as to how this Admin Order can be issued for cancellation of the earlier Admin Order notwithstanding the fact that the Plaintif fs have been promoted by separate promotion orders, whereas, after dismissal of the Petitions of the Unions in 2014, the Admin Order No.13/2013 had been implemented with retrospective benefits and nothing happened until 2016 when suddenly the Management resolved to cancel / withdraw the Admin Order No.13/2013. Even if a competent authority is authorized or permitted in law to withdraw a benefit; the same cannot be done without considering the facts and circumstances as well as without providing valid reasons for doing so. In this case in the minutes and proposal initiated / generated by the Deputy General Manager , (P&P) there is nothing of that sort which could justify in any manner the cancellation of Admin Order No.13/2013, except apparently a false statement that the same was kept in abeyance after proceedings were initiated by the CBA and an order was obtained by them from NIRC. It has not been stated; nor informed or responded that once, after dismissal of Petition of CBA, Admin Order No.13/2013 stood revived; and was made effective with retrospective effect, and until the 374th meeting was being acted upon without any objection or reservation by PIA, what warranted even considering cancellation of the same in referred meeting.
This aspect is absolutely silent insofar as PIA and the material placed on record is concerned. For this Court it was never in abeyance; nor can it be pleade d by PIA that it was not being acted further after 22.5.2014, when the circular was issued by the Industrial Relations Department / HR Department. Therefore, the reasons so assigned for arriving at a decision in the said meeting and as placed before the Court, do not seem to be justifiable, lawful as well as reasonable. It is also pertinent to mention that decisions of earlier Board of Directors, whereby , certain benefits are granted to the employees, are not decisions of the Board only, but of the Organization i.e. PIA. And any subsequent Board of Directors canno t unilaterally overturn such decisions, come what may. The Defendant is an Organization which is owned in majority by the Government; and is not supposed to work like a private Company . There can't be any unfettered discretion with the Board Members of such Organizations. They can and may have the authority to undo an earlier decision in the interest of the Organization; but for that they have to follow the law as well as their regulations. It is settled law that an order , whereby , the rights accrued to a party are affected cannot be passed without affording opportunity to the aggrieved party to plead its case. In this matter it is an admitted position and so conceded by the Defendant' s Counsel that none of the Plaintif fs were ever confronted as to withdrawal / cancelation of Admin Order No.13/2013. Not only this, even after cancellation of this Admin Order , in my view, separate proceedings ought to have been initiated for recalling / cancellation of the promotion orders / letters dated 8.4.2013 already issued to the Plaintif fs and so also in respect of letters dated 23.5.2014 issued by the Industrial Relations Division and the HR Department. Moreover , if the stance of PIA is accepted that the order was kept in abeyance and was subsequently withdrawn in 2016, then as to what action was taken by PIA for recovery of the enhanced benefits paid to the Plaintif fs when they were promoted on 08.04.2013 till promulgation / issuance of Administrative Order No. 17/2016, notwithstanding the fact, even that cannot be done by them in view of the cases reported as The Engineering-in-Chief Branch through Ministry of Defence and another vs. Jalaluddin (PLD 1992 Supreme Court 207), Mst. Sajida Javed vs. Director of Secondary Education, Lahore Division and others (2007 PLC (C.S) 364), and unreported judgment dated 18.10.20 19 in C.P.No.4439 of 2017 and CMA No.8554 of 2017 Shams ur Rehman Vs. Versus Military Accountant General, Rawalpindi and another .
10. It may also be noted that it is not the case of PIA that the upgradation or promotion of the Plaintif fs was by way of mistake, fraud or misrepresentation. Rather , it was a conscious decision of the then Management and was duly acted upon in a lawful manner . It has not been pleaded that there was any irregu larity in issuance of Amin Order No.13/2013; hence, on this ground also, the Plaintif f's cannot be non-suited and made to suffer adversely , without there being any fault on their part. It is also very strange that instead of defending the issuance of Admin Order No.13/2013, the management of PIA bowed before the CBA, as it may have had an effect on their numerical strength, once the Plaintif fs and like employees were upgraded / promoted to PG-V . This at the inception had to be taken up with proper defence; however , PIA failed to contest the same with any proper diligence; rather , waited till the petition of CBA was dismissed in Non-prosecution. At least for that the Plaintif fs who had been promoted with independent promotion orders ought not to have made to suf fer.
11. In the case reported as Federation of Pakistan v C.M.Sharif (1990 SCMR 250) the Hon'ble Supreme had the occasion to examine the case of an employee (in Grade-19) who was initially transferred on deputation from Pakistan Ordnance Factory , to Wah Industries Limited as Managing Director and was subsequently promoted to Grade-20, as his position was not commensurate with the assigned job of a Managing Director . Thereafter , he was recalled to his parent department and was again reverted to Grade-19. He challenged this before the Service Tribunal where his appeal was allowed, and Federation of Pakistan appealed before the Hon'ble Supreme Court, and such Appeal was dismissed by maintaining the order of the Tribunal and it was held as follows;
3. Leave to appeal was granted in this case to examine whether the respondent could claim as a matter of right his appointment in Grade 20 on the strength of his being allowed so in W .I.L. while posted in a subsidiary organization.
4. In support of the appeal, the learned counsel for the appellants contended that Mr. C.M. Sharif, a Grade 19 Officer of the P.O.F., was sent to W.I.L. in September , 1974. A move was subsequently made by the latter organization to allow the respondent Grade 20 to which the former concurred. This in itself, he contended, would show that the respondent was not promoted to Grade 20 as such but was allowed its pay only. This being so, the respondent could not claim pay in Grade 20 as of right. Before the Tribunal too, the appellants had resisted the claim of the respondent on exactly the same ground a but was squarely met and repelled by the Tribunal and rightly so because on the transfer of the respondent to W.I.L., the terms and conditi ons of service of the respondent as laid down in the order of P.O.F. Board dated 8-5-1975 did not provide any deputation allowance. This fact, therefore, would show that the respondent was promoted by the P.O.F. to Grade 20 on the reference made by the W.I.L. Thus the P.O.F having once promoted the respondent to Grade 20 could not recall the same. The respondent had worked quite satisfactorily in W.I.L. in Grade 20 for seven long years and, therefore, his demotion to Grade 19 was rightly held to be unjustified by the Service Tribunal. We have been given to understand that the respondent has since retired from service.
12. In the case reported as Nazeer Ahmed Chkrani v Government of Pakistan (2004 SCMR 623) again the Hon'ble Supreme has dealt with a case of demotion of an employee and the applica bility of the Principles of natural justice and has followed an earlier judgment in the case of PIA reported as Pakistan International Airlines v Nasir Jamal Malik (2001 SCMR 934) and has been pleased to hold that an employee who has been promoted, cannot be demoted without affording an opportunity of hearing and being confronted. The relevant findings are as under: In view of the above judgment it is to be noted that petitioner was promoted as General Manager on 5th June, 1995 and against this post he served up to 2nd of February , 1997 when he was demoted to the post of Deputy General Manager but before taking adverse action against him he was not called upon to explain that under what circumstances he was promoted and whether he is capable to retain the post of Genera Manager or otherwise. As far as letter dated 2nd February , 1997 is concerned it also does riot indicate that on basis of which consideration the Competent Authority formed its opinio n that promotion was allowed to petitioner wrongfully . Be that as it may, we are not inclined to go into merits of the case because we are of the opinion that petitioner's demotion has taken place in violation of principles of natural justice i.e no one should be condemned unheard. However respondent organization even now is competent .to take action against the petitioner but after adopting proper procedure as it has been observed in above judgment.
Thus for the foregoing reasons, petition is converted into appeal and allowed. The impugned order dated 29th June, 2000 passed by `Federal Service Tribunal as well as departmental order dated 2-2-1997, are set aside.
Needless to observe that Pakistan State Oil Company Limited shall be free to proceed afresh against the petitioner , in, accordance with law . No order as to costs.
13. From the aforesaid findings of the Hon'ble Supreme Court it is established that an employee of an organization working and under the control of the Government, cannot in any manner , be relegated or demoted to a lower grade or rank; without a notice and opportunity of being heard, which even otherwise is to be read in every statute and rules as well as a decision of an organization like the Defendant here.
14. In view of hereinabove facts and circumstances the Plaintif fs Suit is decreed by answering Issue No. (i) and (ii) in negative, and it is held that Plaintif fs promotion orders dated 8.4.2013 cannot be deemed to have been cancelled / withdrawn impliedly on the basis of Amin Order No.17/2016 through which Amin Order No.13/2013 was withdrawn / cancelled, and are to be treated as existing and valid.
15. Suit stands decreed as above; of fice to prepare decree accordingly .