Shahid Karim, J:-. The petitioners have a common grievance arising out of certain allegations of misconduct and misuse of official position pursuant to which the petitioners were served with charge sheets under PTCL Service Regulations 1996. It is not in dispute that the petitioners were imposed various penalties and the impugned orders have been challenged through these petitions. The matter was determined previously by a learned Single Judge of this Court on 16.11.2015 which was affirmed in appeal viz. ICA No. 1772 of 2015. The termination orders were declared to be without lawful authority and of no legal effect. On appeal to the Supreme Court of Pakistan by the respondents herein Pakistan Telecommunication Company Limited ("PTCL") the matter was remanded to this Court for decision afresh as in the opinion of the Supreme Court the crucial issues involved in these petitions were not determined properly by this Court.
2. The oral arguments in this Court have led the categorization of these petitions into two sets. The petitions in the first set at Appendix 'A' relate to employees of Pakistan Telecommunication Corporation (PTC), the predecessor Corporation which was later on reorganized by establishing the Pakistan Telecommunication Authority (PTA) and later established Pakistan Telecommunication Company Limited (The Company) through the Pakistan Telecommunication (Re-Organization) Act, 1996 (the 1996 Act). Sections 35 and 36 of the 1996 Act, would assume relevance in the context of present petitions and these provisions provide that: "35. Vesting of the rights, property and liabilities of the Corporation.--(1) The Federal Government may, by orders, direct that all or any property, rights and liabilities to which the Corporation was entitled or subject to immediately before such orders, and identified therein, shall, on such terms and conditions as the Federal Government may determine, vest in--
(a) the Company;
(b) the National Telecommunication Corporation;
(c) the Authority;
(d) the trust; or
(e) the Board through the Federal Government, and become the property, rights and liabilities of the respective entity.
(2) An order issued under sub-section (1) shall specify the employees of the Corporation who shall, as from the effective date of the order, be transferred to and become employees of the entity referred to in the order: Provided that such order shall not vary the terms and conditions of service of such employees to their disadvantage.
(3) An order issued under sub-section (1) in favour of the Company shall provide for--
(a) the continuation by the Company of the operations and undertaking of the corporation on the same basis as were carried on immediately prior to the date of the order save in respect of the operations and undertakings to be carried on by the National Telecommunication Corporation pursuant to section 41; and
(b) the dissolution of Corporation as from the effective date of the order.
(4) In consideration of the vesting in the Company of the property of the Corporation, the Company shall issue such securities in the name of the President of the Islamic Republic of Pakistan as the Federal Government may direct.
(5) Unless an order so directs, the property vested under sub-section (1) shall be free from any charge, burden, hypothecation or encumbrances to which it may be subject at the effective date of the order.
(6) If any property of the Corporation vests in the Company subject to any charge, burden, hypothecation or encumbrance, the same shall be deemed to be on the assets of the Company and the provisions, of section 121 of the Companies Ordinance, 1984 (XLVII of 1984), shall apply to such charge, burden, hypothecation or encumbrances as if it had been created on the assets of the Company on the effective date for the Company.
(7) If any property of the Corporation vests in the National Telecommunication Corporation, the Authority or the Trust subject to any charge, burden, hypothecation or incumbrance, the same shall be the first charge by way of hypothecation in favour of the creditor.
(8) In this section, "property" includes assets, rights and entitlement of every description and nature wherever situated and "liabilities" includes duties, obligations, loans incumbrance, claims and charges of every description and nature (actual or contingent), whether or not they are capable, under any law of Pakistan or of any other State or under any agreement or otherwise, or being vested, transferred or assigned by the Corporation.
(9) No stamp duty shall be payable under any law for the time being in force on or in relation to the transfer or vesting of property of the Corporation under any order issued under sub-section (1).
36. Terms and conditions of service of employees.--(1) No person transferred to the Company pursuant to sub-section (2) of section 35, hereinafter referred to as "Transferred Employee", shall be entitled to any compensation as a consequence of transfer to the Company: Provided that the Federal Government shall guarantee the existing terms and conditions of service and rights, including pensionary benefits of the Transferred Employees.
(2) Subject to sub-section (3), the terms and conditions of service of any Transferred Employee shall not be altered adversely by the Company except in accordance with the laws of Pakistan or with the consent of the Transferred Employees and the award of appropriate compensation.
(3) At any time within one year from the effective date of the order vesting property of the Corporation in the Company, the Federal Government may, with the prior written agreement of a Transferred Employee, require him to be transferred to or revert him back and be employed by the Authority, National Telecommunication Corporation, Trust or the Federal Government on the same terms and conditions to which he was entitled immediately before such transfer.
(4) Subject to proviso to sub-section (1) of section 45 on transfer of a Transferred Employee under sub-section (3), the Federal Government shall assume responsibility for his pensionary benefits without recourse to the Pension Fund referred to in that section.
(5) Under the order vesting property of the corporation in the Company, the Federal Government shall require the Company to assume the responsibility of pensionary benefits of the telecommunication employees and the Company shall not alter such pensionary benefits without the consent of the individuals concerned and the award of appropriate compensation."
3. Section 35, set out above, empowers the Federal Government by orders to direct that all property rights and liabilities to which the Corporation was entitled shall on such terms and conditions as Federal Government may determine vest inter alia in the Company. By subsection (2) the Federal Government shall specify in that order that the employees of the Corporation be transferred to and become employees of the entity referred to in that order. There is no cavil that the petitioners here were transferred to the Company. The proviso to sub-section (2) further obliged the government not to vary the terms and conditions of service of such employees to their disadvantage. The entire case of the petitioners hinges on the proviso to sub-section (2) of the 1996 Act. Proviso to sub- section (1) of section 36 further required the Federal Government to guarantee the existing terms and conditions of service and rights including pensionary benefits of the transferred employees.
4. The first category as stated above, would relate to those employees who have brought petitions on the ground that they were employees of the Corporation and hence their terms and conditions could not be varied or changed to their detriment. The cases of the employees of the Corporation are in contradistinction to the cases of the employees of Telephone & Telegraph Department (T&T) prior to the enactment of Pakistan Telecommunication Corporation Act, 1991 ("the 1991 Act"). On the contrary, learned counsel for PTCL submits that these employees had no statutory rules which were protected by the 1996 Act and so it cannot be urged that the petitioners who were erstwhile employees of the Corporation ought to be treated as civil servants and that disciplinary proceedings be initiated against them under the Civil Servants Act, 1973 and the rules framed thereunder, that is, the Civil Servants (Efficiency & Discipline) Rules, 1973 (E&D Rules). In this regard, the relevant documents relating to the employment of these petitioners and the rules governing their terms and conditions will be relevant to be looked into. By way of illustration on 12.12.1994 one of the petitioners was appointed as a lineman in BPS-04. It was provided by clause 2 that: "2. The terms of your service will be governed by the provision of rules of recruitment and such other terms and conditions as are in force or may be prescribed by the Management from time to time."
5. Clearly, the above clause does not refer to the appointment of these petitioners as civil servants so as to attract the provisions of the 1973 Act. It merely provides that terms of their service shall be governed by the rules of recruitment and such terms and conditions as are in force or may be prescribed by the management from time to time. In continuation of the appointment letter the petitioners' counsel has referred to an office order issued on 09.02.1992 by the Corporation entitled Adoption of the Existing Rules and Procedures of the Erstwhile T&T Department.
According to the decision mentioned in this office order, it was stated that: "It was resolved to adopt for the P.T.C. the existing rules and procedures of the erstwhile T&T Department framed / laid down by the P.T.C."
6. Thus, PTC Board resolved to adopt the existing rules and procedures of the erstwhile T&T Department till such time the new rules or procedures were framed or laid down by PTC. It is evident firstly that the Corporation merely adopted the rules and procedures of T&T Department.
Secondly, it was resolved that new rules and procedures would be framed by the Corporation in due course of time. Therefore, it cannot be argued that the Corporation was bound by the rules and procedures of T&T Department and thereby to treat the petitioners as civil servants who could only be proceeded against under the E&D Rules. No such conclusion can be drawn from the documents relied upon by the learned counsel for the petitioners. Further on 07.11.1995, the Corporation designated authorities in terms of E&D Rules in respect of PTC employees. This office order too does not confer any right on the petitioners to be treated as civil servants and in matters of their efficiency and discipline to be proceeded against only under the 1973 Rules and no other procedure.
7. As adumbrated, the learned counsel for the petitioners relied upon the proviso to sub-section (2) of section 35 to contend that the terms and conditions of service of such employees who were transferred to the company as a result of the 1996 Act could not be varied to their disadvantage.
There is no contention with regard to this submission. Yet, the question would still remain as to what were the terms and conditions of service of the employees of the Corporation which were sought to be preserved by the proviso to sub-section (1) of section 35 of the 1996 Act. Such terms and conditions have been narrated above which merely adopted the existing rules and procedures of T&T Department and this was merely an interim arrangement till new rules and procedures were framed by the Corporation. Since the Corporation stood merged as a result of promulgation of the 1996 Act, the company would thereafter be empowered to frame and lay down rules and procedures to govern the terms and conditions of the employees of Corporation who were transferred to the company.
8. For the proposition that mere adoption of statutory rules does not make them statutory for the purpose of organization which has adopted those rules, reliance can be placed on the judgment of the Supreme Court of Pakistan reported as M.H Mirze v. Federation of Pakistan (1994 SCM R 1024) and the following observations in this regard: "None of its Regulations whether framed by it itself or adopted by reference had a statutory basis in law. This view is supported by the view taken in Ch. Abdul Rashid v. Capital Development Authority, Islamabad and another (PLD 1979 Lahore 803) and the Principal, Cadet College, Kohat and another v. Muhammad Shoab Qureshi (PLD 1984 SC 170). The adoption of the rules of the Government or their application by reference will not lend a statutory cover or content to these rules, as held in Lahore Central Co-Operative Bank Limited v. Saif Ullah Shah (PLD 1959 SC (Pak.)
210) and finally very recently in Chairman, Pakistan Council of Scientific and Industrial Research, Islamabad and 3 others v. Dr. Mrs. Khalida Razi (Civil Appeal No. 270 of 1993). There being no statutory rules in the field, a Constitution petition was not at all competent on the subject."
9. The above statement of law is on all fours in respect of present cases relating to the employees of the Corporation as well and it is evident that the adoption of some statutory rules of T&T Department would not clothe the employees with the right to be protected by statutory rules which were liable to be varied at a later time. To this extent, the petitioners in these petitions cannot maintain a collateral challenge to the actions of PTCL. It is agreed on all hands that the petitioners are workmen and they have a remedy under the labour laws which could be availed. In fact, in some of the instances brought forth through C.M No.1 of 2021 in W.P No.61 of 2012 the petitioners indeed approached NIRC and later on filed grievance petitions. These petitions (at Appendix 'A') are therefore dismissed.
10. The second set of petitions (The Petitions at Appendix 'B') relates to T&T Department employees.
The learned counsel for the respondents invites this Court to hold that since the petitioners were workmen, any order passed by the company could be challenged before the labour courts where a proper and efficacious remedy was provided by law and these petitions are incompetent in any case. This argument has no legal legs to stand upon.
11. The question of T&T Department employees have already been determined in a number of judgments of the Supreme Court of Pakistan starting with Masood Ahmed Bhatti and others v.
Federation of Pakistan through Secretary, M/O Information Technology and Telecommunication and others (2012 SCMR 152) and P.T.C.L. and others v. Masood Ahmed Bhatti and others (2016 SCMR 1362) where it has been held that the employees of former T&T Department had statutory rules relating to terms and conditions of their service which were protected by section 35 read with section 36 of the 1996 Act and so their terms and conditions could not be varied to their disadvantage. Learned counsel for the respondents submitted that no distinction has been drawn in these judgments rendered by the Supreme Court of Pakistan between civil servants and workmen and so the ratio of these judgments would be inapplicable to the case of the petitioners who admittedly are workmen. This argument is stunted by observations made in Masood Ahmed Bhatti case and in particular paragraph 7 where it has been stated that: "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 regulations governing the services of civil servants. The Civil Servants (Efficiency and Discipline) Rules, 1973 and the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 provide instances 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 power granted to the Federal Government, inter alia, under the Civil Servants Act, 1973."
12. Thus, the Supreme Court of Pakistan proceeded on the assumption regarding status of the employees of T&T Department as civil servants and nobody disputed this fact before the Supreme Court of Pakistan. No dispute was raised in this regard in the later cases referred to above. It would be little late in the day for counsel for the respondent company to invite this Court to draw a distinction while the judgments of the Supreme Court of Pakistan have been rendered on the undisputed assumption that all employees of T&T Department were civil servants. This is also evident from a reading of the 1973 Act read with E& D Rules where employees were appointed as civil servants and no distinction has been made with regard to their status. It would create an anomalous situation for this Court to take a different view from the one taken by the Supreme Court of Pakistan in respect of a large number of former employees of T&T Department whose cases came up before the Supreme Court of Pakistan on different occasions. Suffice to say that the following observations made by the Supreme Court in Masood Ahmed Bhatti case would cover the case of the employees in this category: "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 employees, 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."
13. Reference may also be made to the observations of the Supreme Court of Pakistan in the review petitions coming up before a larger Bench and reported as P.T.C.L. and others v. Masood Ahmed Bhatti and others (2016 SCMR 1362) where the earlier holding of the Supreme Court was upheld in the following terms: "A fleeting glance at the provisions quoted above would reveal that the departmental employees on their transfer to the Corporation became employees of the Corporation under section 9 of the Act of 1991 and then of the Company under section 35 of the Act of 1996. Their terms and conditions of service were fully protected under section 9(2) of the Act of 1991 and 35(2) o. the Act of 1996. None of the terms and conditions could be varied to their disadvantage as is provided by the sections reproduced above. Not only that the legislature also bound the Federal Government to guarantee the existing terms and conditions of service and rights including pensionary benefits of the transferred - employees. Since they by virtue of the aforesaid provisions became employees of the Corporation in the first instance and then the Company, they did not remain Civil Servants anymore. But the terms and conditions of their service provided by sections 3 to 22 of the Civil Servants Act and protected by section 9(2) of the Act of 1991 and sections 35(2), 36(a) and (b) of the Act of 1996 are essentially statutory. Violation of any of them would thus be amenable to the constitutional jurisdiction of the High Court. Though in the cases of Pakistan Telecommunication Corporation and another v. Riaz Ahmed and 6 others and Divisional Engineer Phones, Phones Division, Sukkur and another v. Muhammad Shahid and others (supra) it was held that the departmental employees on their transfer to the Corporation and then to the Company would continue to be the Civil Servants, but this interpretation does not appear to be correct as they on their transfer became employees of the Corporation under section 9 of the Act of 1991 and then of the Company under section 35 of the Act of 1996. Retention of their status as civil servants is thus not supported by the words used in the aforesaid provisions."
14. In view of the above, the petitions at Appendix 'B' are allowed. The impugned orders are set aside. The respondent No.1 company however is at liberty to take action against these petitioners under the E& D Rules, 1973 as the petitioners could only have been proceeded against under these rules and none else./ Appendix-A Sr. No. W.P Nos. Title
1. 10380 of 2012 Asghar Ali V. PTCL etc.
2. 90 of 2012 Rana Muhammad Pervaiz V. PTCL etc.
3. 17937 of 2015 Muhammad Adrees V. PTCL etc.
4. 13061 of 2017 Rehan Asghar V. Federation of Pakistan etc.
5. 14680 of 2017 Naeem Ahmad V. Federation of Pakistan etc. Appendix-B Sr. No. W.P Nos. Title
1. 29305 of 2011 Ijaz Ali Murtazai V. PTCL etc.
2. 19546 of 2012 Ch. Basharat Ali V. PTCL etc.
3. 15431 of 2012 Iftikhar Ahmad V. PTCL etc.
4. 10674 of 2012 Kh. Khalid Mahmood V. PTCL etc.
5. 159003 of 2018 Sajid Ali Khan V. PTCL etc.