Common questions of law are involved in Writ Petitions Nos. 3744, 7705 of 1979, 1125, 5091, 7266, 7394, 3277, 6480 of 1980 and 1703, 1065, 1823, 1144 and 4965 of 1981. These questions shall be disposed of by this order.
2. The questions of law which require consideration are:-
(i) Whether the District Manager of Punjab Urban Transport Corporation (hereinafter called the Corporation), was competent to dismiss or take any disciplinary action against an employee originally appointed by the Punjab Road Transport Board (hereinafter called the Board) and serving in any of the depots of the Board at Lahore, Rawalpindi and Islamabad, but subsequently transferred to the Corporation on 1-2-1977, for committing a misconduct while performing his duties in the Corporation.
(ii) Whether the employees/writ petitioners/respondents, as the case may be (hereinafter called the employees) are estopped by their conduct to challenge the status of the Corporation as their employer for taking disciplinary action against them and claiming the Board, as their employer for the aforesaid purpose.
3. The questions referred to above need examination in the circumstances hereinafter mentioned.
The Corporation was incorporated as a private limited company and is duly registered under Companies Act, 1913, vide certificate of incorporation, dated 17-1-1977. The object for which the Corporation was established as per Memorandum of Association of the Corporation was to provide an efficient, adequate and economical-and properly co-ordinated system of Road Transport Service in Lahore, Rawalpindi and Islamabad Federal Capital and in any extended/other areas in the Province of the Punjab. A certified copy of the Memorandum and Articles of Association is at Annexure H, on the record of Writ Petition No. 1125 of 1977.
4. A meeting was held on 28th of January, 1977, in the office of the Secretary Transport, Government of the Punjab, Lahore, to finalize arrangements in connection with the setting up of the Corporation.
The representatives of the Corporation, Board and of the Provincial and Federal Governments participated in the meeting. The minutes of the meeting is at Annexure 1, para. 2 of the minutes of the meeting reads thus:- "(2)Selection of Officers and Staff Serving in Urban Depots.--
(i) Upto Grade-16: It was agreed that Officers and staff up to the level of Grade-16 will be automatically transferred to the P. U. T. C., in accordance with their present assignments in the urban depots to be taken over by the P.U.T.C.
(ii) Grade-17 Officers: As for officers of Grade-17 are concerned, it was decided that they will be transferred to the P. U. T. C., with effect from 1-2-1977 subject to the specific understanding that the P. U. T. C. Have the right to request for repatriation of any of them within one month in exchange for another officer of the same grade as mutually agreeable."
5. This was followed by a meeting of the Board held on 31-1-1977. The minutes of the meeting are at Annexure 2. The Board under the heading "Other Matters" approved in principle the various proposals including the decision regarding methodology of transfer of assets, liabilities, officers/staff to the Corporation, as well as the taking over of the Board's Depots at Rawalpindi, Islamabad and Lahore. Clause (a) of para. 1 under the heading "Other Matters" reads thus:- "Depots to be taken over.- LOS (I.D.), LOS Garden Town Depot, LOS (KLP), LOS (Saddar) and LOS, Rawalpindi.
All Tools, Plants, Spares, Furniture and Fittings of the above Depots will be taken over by the P. U. T. C.
"
6. In consequence, it is stated at the Bar by Mr. Zia Mehmood Mirza that the depots alongwith the land, building, motor vehicles, etc. Were taken over by the Corporation, on 1-2-1977 and all employees of the Board up to Grade-16, working in these depots continued to serve under the Corporation with effect from the said date. This is not disputed by the opposite-party.
It may be pointed out that all the writ petitions relate to employees upto Grade-16 and, therefore, it is not necessary to deal with the status of employees of Grade-17 and above.
7. It is not, disputed by the employees that after the establishment of the Corporation, they have been getting their wages and other benefits of employment from the Corporation and made no grievance whatsoever to the Board in relation to the terms and conditions of their employment. It is an admitted fact that the employees never made any representation /protest against their automatic transfer in pursuance of the aforementioned decision arrived at between the Board and the Corporation and neither they claimed any lien in the Board. The employees, however, took up the plea in some cases before the Labour Court and in other cases, before the Punjab Labour Appellate Tribunal, that they were not the employees of the Corporation but were that of the Board and, therefore, in view of the decision given by this Court in Ch. Muhammad Ashraf v. Punjab Road Transport Board, Lahore and 2 others 1980 PLC 409 the order of their dismissal by the Corporation was not maintainable in law, inasmuch as, the employees never gave their consent in writing for their transfer from the Board to the Corporation.
8. Mr. Zia Mehmood Mirza, the learned counsel for the Corporation and Mr. Muhammad Salim Khan, the learned counsel for the Board took up the plea that the ratio laid down in Ch. Muhammad Ashraf's case is distinguishable to the facts and circumstances of the employees, in that, Ch. Muhammad Ashraf was an officer in Grade-17, whereas the employees are below Grade-16. It is conceded by the learned counsel for the Board, as well as for the Corporation that stricto sensu, the employees of the Board could not have been unilaterally transferred to the Corporation without their consent, but it is submitted that the consent was impliedly given by all the employees, in that they never challenged the status of the Corporation as their employer at any stage during the course of their service and that they have been working under the Corporation and also receiving their wages and getting other benefits without any protest from the Corporation and, therefore, they are estopped by their conduct to raise this question that the Corporation was not their employer at the belated stage before the Labour Court, Punjab Labour Appellate Tribunal or before this Court in the exercise of Constitutional jurisdiction.
9. It is next contended by the learned counsel for the Corporation and the Board that submission of a grievance notice by the employee to the employer in terms of section 25-A of the Industrial Relations Ordinance, 1969, is a condition precedent for invoking the jurisdiction of the Labour Court for the redress of the grievance of the employee. In the instant case, none of the employees served any grievance notice to the Board and, therefore, even of the Board is treated to be the employer of the employees, in view of the dictum of this Court in Ch. Muhammad Ashraf's case, the proceedings before the Labour Court at the instance of the employees without fulfilment of the condition precedent laid down in section 25-A (ibid), was not competent and, therefore, no relief could be claimed by the employees from the Labour Court even if the Board continued to be the employer of the employees.
10. Mr. Muhammad Zaman Qureshi, Advocate for the employees, submits that there is no estoppel against statute and, therefore, merely because no protest was lodged by them would not affect the right of the employees to agitate this question of law. It is next contended by Mr. Muhammad Zaman Qureshi that in terms of Rule 7.5 of the Punjab Transport Board Rules, 1972, the Board or officer authorised by the Board alone can take disciplinary action against the employees and that the Corporation had no jurisdiction to dismiss the employees. This being so, it is submitted the orders of dismissal against the employees suffer from a patent illegality on the face of record and being null and void are non-existent in the eye of law. It is contended that the representatives of the employees were never associated with the decisions/ arrangements which were finalized between the Board and the Corporation for the transfer of the Staff of the Board to the Corporation, and, therefore, the decision unilaterally taken by them is not binding on the employees. Mr. Zaman Qureshi further submits that in Muhammad Munawar v. Punjab Road Transport Board and others (W.P. 2922/S/79), dismissed by my learned brother Gul Muhammad Khan, J. On 24-9-1979, who is also the author/of Ch. Muhammad Ashraf's case, on ground of acquiescence is distinguishable. It is submitted that the writ petition of Muhammad Munawar Qureshi was dismissed on the ground of acquiescence, in that, in the precedent case, the incumbent was permanently transferred from the Board to the Corporation at his own request and his lien was also terminated and specific mention thereof was made in his order of transfer and, therefore, the dictum in Muhammad Munawar's case is not applicable to the case of the employees as they were not transferred from the Board to the Corporation with their consent. It is lastly contended that the District Manager of the Board alone was the competent authority to take disciplinary action against the employees working at various depots of the Corporation, notwithstanding the aforesaid arrangement between, the Board and the Corporation. In support of this proposition, reliance is placed on Fayyaz Ali Khan v. The Government of Pakistan and another 1971 SCMR 454. In support of his contention that there is no estoppel against statute, Mr. Muhammad Zaman Qureshi places reliance vide:- Riaz and Kandawal Ltd. v. Trading Corporation of Pakistan, Karachi PLD 1979 Kar. 300, E. A. Evans v.
Muhammad Ashraf PLD 1964 SC 536, Muhammad Hafeez v. Muhammad Suleman and another 1979 CLC 575, Mirza Munawar Ahmad and another v. Official Liquidator and 3 others PLD 1980 Lah.
86, Khyber spinning Company, Lahore v. Chairman, Punjab Labour Appellate Tribunal and 2 others PLD 1978 Lah. 909.
11. Mr. Asmat Kamal Khan, Advocate for some of the writ petitioners adopted the arguments advanced by Mr. Muhammad Zaman Qureshi.
12. Mr. A.Q.M. Shafiq-ul-Islam, Advocate, who was requested by the Court to assist the Court supported the stand taken by the Corporation and the Board. He submitted that transfer of assets was done by the Board in accordance with the provisions laid down in Rule 137(1) of the Motor Vehicles Rules, 1969, and in pursuance of its decision taken on 28-1-1977 and 31-1-1977. Consequent upon aforesaid transfer of assets and depots of the Corporation, the Board ceased to have any authority over those depots and the said authority got vested in the Corporation on 1-2-1977, on which date it started functioning. Mr. A.Q.M. Shafiq-ul-Islam further submits that all District Managers who were specific employers of the employees, continued to exercise their authority over them. These Managers got their authority by delegation originally from the Board and subsequently from the Corporation on its formation. By continuing to serve in the Corporation in the aforesaid manner and by accepting pay, wages and other emoluments and benefits from the Corporation, the employees accepted the position that they are employees and their respective District Managers of the Corporation are their employers. Mr. Shafiq-ul-Islam further submitted that the learned counsel for the employees also accepted the position that the District Managers of the Corporation were their employers. The only difference was that in the matter of exercising disciplinary authority the learned counsel for the employees had taken a contrary view, that for the said purpose the Board (of course through their District Managers) was their employees. Mr. Shafiq-ul-Islam, submits that this is a position of approbation and reprobation in the same breath which position the law and equity do not allow. Otherwise too, there cannot be two sets of employers over any employee. So also, the authority of District Manager as an employer cannot be divided. The proposition of divided authority of employer is impracticable and inapplicable.
Moreover, it bears the interest of neither of the parties. Mr. Shafiq-ul-Islam has further submitted that the legality or otherwise of the formation of the Corporation was not challenged. Willing continuation of service under the Corporation by these employees, has debarred them from their right to challenge the authority of the District Managers of the Corporation as their employers, under principles of estoppel, acquiescence and waiver in terms of sections 115 and 116 of Evidence Act.
13. I have given my anxious consideration to the submissions made by the learned counsel for the parties. I find much force in the submission made by the learned counsel for the Board, the Corporation and Mr. A.Q.M. Shafiq-ul-Islam, Advocate. The principle that there is no estoppel against a statute is well-settled but that principle is applicable when a person acting in a particular manner is not debarred to act in that manner in consequence of a right conferred on him by the statute. In the instant case, no right is conferred by the statute. Industrial Relations Ordinance, 1969, West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968, Punjab Road Transport Board Rules, 1972 or any other law, on the employees to question their employment /performance of duties which they had accepted by their conduct since 1-2-1977, and drew their emoluments and availed other allied benefits from, the Corporation.
In any event, the arrangements arrived at between the Board and the Corporation were not in any way prejudicial to the interest of the employees, in that, in consequence of the aforesaid arrangements, the Depots of the Board located at Lahore, Rawalpindi and Islamabad alongwith its assets and liabilities, were transferred to the Corporation and accordingly, the Depots stood automatically abolished and incumbents thereof also ceased to hold their respective posts. The employees admittedly have not made any challenge to the transfer of the depots alongwith its assets/ liabilities by the Board to the Corporation but continued to serve and perform their duties under the Corporation without protest. It may be further pointed out that the employees have been given the same guarantees which were available to them during the course of their service under the Board, notwithstanding the abolition of the posts of Depots in the Board. This being so, no right is conferred on the employees to challenge the acceptance of their service under the Corporation which was to their own benefit, particularly, when the stand taken by the Board is that they are not prepared to take them back in their service because they were never sent on deputation or on temporary basis to the Corporation and had no lien whatsoever with the Board, nor there were any substantive post for the employees in the Board and, therefore, the question of taking any action by the Board in their purported capacity of being an employer in respect of the employees did not arise. The employees have not expressed their consent in writing but implied consent can be inferred from their conduct in the facts and circumstances of the present case. The precedents cited by Mr. Muhammad Zaman Qureshi on the question of estoppel are, therefore, distinguishable and are not attracted to the facts of the present case.
14. The ratio laid down in Muhammad Ashraf's case is distinguishable, firstly, because he was an employee of Grade-17 whose transfer to the Corporation was not automatic, secondly, it was held that he was transferred from the Board to the Corporation without his consent. The question of implied consent was not considered in the precedent case. Muhammad Munawar's case was, however, dismissed by my learned brother Gul Muhammad Khan, J. On the ground of acquiescence. In the instant case, I am of the view that the employees were transferred from the Board to the Corporation by their implied consent and, therefore, the Board was not their employee for any purpose in respect of their terms and conditions of service. The principle enunciated in Fayyaz Ali Khan's case is also distinguishable. Fayyaz Ali Khan was appointed by the Punjab Government and was held entitled to the constitutional protection being the Government servant.
No such constitutional protection is available to the employees. Additionally, there was no evidence on record in Fayyaz Ali Khan's-'case to show that the appellant had been transferred by the Government to the Road Transport Corporation. There were also allegations that proceedings against him were actuated by extreme malice and he was being victimised for extraneous considerations. Learned Additional Advocate-General appearing on behalf of the Government admitted before the Supreme Court that no order transferring Fayyaz Ali Khan from the Government service to the Punjab Roa3 Trans ---ort Board was made when it came into existence on 15-4-1952. In the instant case, according to the arrangements arrived at between the Board and the Corporation, it was agreed that the officers and staff upto the level of Grade-16 serving in the Urban Depots of the Board would be automatically transferred to the Corporation in accordance with their assignment in the Urban Depots which were taken over by the Corporation. It is not the case of the employees that the aforesaid arrangements were mala fide.
15 It is a settled law that a writ even against a void order may be dismissed if a party is estopped by his conduct from challenging it. Reference may be made to S. Sharif Ahmed Hashmi v. The Chairman Screening Committee, Lahore 1978 SCMR 36. The transfer of the employees from the Board to the Corporation had not occasioned any injustice to them. It was to their benefit. In Nawab Syed Raunaq Ali v. The Chief Settlement Commissioner and others PLD 1973 SC 236, it was held that object of writ jurisdiction was to foster justice and right a wrong and that discretionary power under constitutional jurisdiction should not be exercised where the order impugned had not occasioned and injustice to the party. The action of the Board in automatically transferring the employees up to the level of Grade-16 to the Corporation is also hit by the doctrine of past and closed transaction which cannot be re-opened at this stage.
There is no cavil with the proposition of law advanced by Mr. Mahmood Mirza that the jurisdiction of the Labour Court cannot be invoked unless the mandatory condition of service of a grievance notice within the stripulated period is fulfilled. The question, whether such notice was or was not given to the Board, is however, a question relating to the merits of the case and shall be considered at the time of disposal of the writ petition on merits.
For the reasons given above, I have come to the conclusion that the Corporation is the employer of the employees and the concerned District Managers of the Depots of the Corporation were competent to dismiss or take any disciplinary action against the employees originally appointed by the Board and serving in any of the Depots of the Board at Lahore, Rawalpindi and Islamabad but subsequently transferred to the Corporation on 1-2-1977, in committing a misconduct while performing their duties in the Corporation. I am also of the view that the employees are estopped by their conduct to challenge the status of the Corporation as their employer for taking disciplinary action against them and claiming the Board as their employer for the aforesaid purpose.
The upshot of the whole discussion is that each individual writ petition shall now be considered on merits in the light of the observations made in this judgment. Mr. A.Q.M. Shafiq-ul-Islam, Advocate, shall be paid a fee of Rs.2,000 only for assisting this Court on the questions involved in this writ petition. Fifty per cent, fee shall be paid by the Punjab Road Transport Board and fifty per cent by the Punjab Urban Transport Corporation.