1. This order will dispose of the following petitions involving common questions of facts and law, Civil Petition No. D-364 of 1995 Sanaullah v. Pak Telecommunication and others, Civil Petition No. D-529 of 1995, Gul Hassan v. Pak Telecommunication and others, Civil Petition No. D-456 of 1995 Ghulam Abbas v. Pak Telecommunication and others, Civil Petition No. D-543 of 1995 Khuda Bux and another v. Pak Telecommunication and others, Civil Petition No. D-469 of 1995 Muhammad Hassan Abro v. Pak Telecommunication and others, Civil Petition No. D-453 of 1995 Nasiruddin, and others v.
2. Pak Telecommunication and others, Civil Petition No. D-439 of 1995 Muhammad Nawaz and others v. Pak Telecommunication and others, Civil Petition No. D-438 of 1995 Bhutto Muhammad Nawaz and others v. Pak Telecommunication and others, Civil Petition No. D-437 of 1995 Gulzar Ahmed and others v. Pak Telecommunication and others. Civil Petition No. D-393 of 1995 Muhammad Moosa v.
3. Pak Telecommunication and others, Civil Petition No. D-892 of 1995 Ghulam Hussain and others v.
4. Assistant General Manager and others Civil Petition No. D-854 of 1995 Amir Bux v. Pak Telecommunication and others Civil Petition No. 855 of 1995 Muhammad Alam and another v. Pak Telecommunication and others Civil Petition No. D-620 of 1992 Fareed and others v. Chairman Pak Telecommunication and others Civil Petition No. D-371 of 1995 Hidayatullah v. Pak Telecommunication and others, Civil Petition No. D-370 of 1995 Pervez Ahmed v. Pak Telecommunication and others, Civil Petition No. D-367 of 1995 Liaquat Ali v. Pak Telecommunication and others, Civil Petition No. D-368 of 1995 Mahboob Shah v. Pak Telecommunication and others, Civil Petition No.D-369 of 1995 Muhammad Saleetn v. Pak Telecommunication and others, Civil Petition No. D-366 of 1995 Hamdaullah v. Pak Telecommunication and others Civil Petition No.D-365 of 1995 Mohabat Ali v. Pak Telecommunication and others, Civil Petition No. D-535 of 1995 Abdul Jabbar v. Pak Telecommunication and others.
5. Having regard to the nature of these petitions and with the consent of all the counsel we have heard them at length with a view to finally dispose of these petitions.
6. By these petitions the petitioners challenge the termination of their services by the respondent- Corporation. The petitioners in all these petitions were employed by the Pakistan Telecommunication Corporation on different posts, such as, wireman, linemen, telephone operator, driver/cleaner, Chowkidar etc. From the to the between 1990 and 1994 and except tier the petitioners in Petition No. 620 of 1992, whose services were terminated on 18-2-1992, the services of other petitioners were terminated on different dates during the year 1995.
7. It is common ground in all these petitions that all the petitioners are workman' as defined under the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and therefore are covered by Standing Order 12 of that Ordinance. Admittedly, none of the petitioners, approached the concerned Labour Court, the forum provided under the said Ordinance, for the redress of their grievances and instead have challenged their termination, directly in this Court by these petitions under Article 199 of the Constitution. The first point for consideration in these petitions, therefore, is as to whether these petitions would be maintainable in spite of the petitioners having not availed the remedy provided under the said Ordinance.
8. In this regard the contention of the learned counsel appearing for the various petitioners was that the order terminating petitioners services, on its face being in flagrant violation of the provisions of Standing Order 12 of the aforesaid Standing Orders Ordinance was illegal and mala fide and as such it was not necessary for the petitioners to have approached the forum provided under the said Ordinance. The submission was that the petitioners were permanent workmen and therefore, under clause (I) of Standing Order 12 were entitled to one month notice of termination which was lacking in the present case and further that under clause (3) of that Standing Order the employer was bound to state explicitly the reason for the termination which to was not done. It was contended that the termination of petitioners' services was mala fide with a view to appoint persons on political basis. It was argued that the termination on its face being violative of the statutory provisions and mala fide was not sustainable and in such circumstances it was not necessary for the petitioners to have availed of the alternate remedy provided under the Standing Orders Ordinance and Industrial Relations Ordinance before filing these petitions. In support of their contention the counsel placed reliance on the following cases:--
(i) Murree Brewery Co. Ltd. v. Pakistan through the Secretary, Government of Pakistan Works Division and 2 others (PLD 1972 SC 279);
(ii) Messrs Shahid Agency v. The Collector of Customs (Appraisement) and others (1989 CLC 1938); (i.e) Muhammad Akram Butt v. Government of Pakistan and 3 others (PLD 1978 Karachi 132);
(iv) Mst. Tayyaba Bibi v. Admn., M.C. Gajra etc. 1994 PLC (C.S.) 1445).
9. The first of the abovementioned cases arose out, of acquisition proceeding in respect of appellant's properties situated in Rawalpindi under the Capital Development Authority Ordinance, 1960.
10. It has been observed in that case that: "It is thus evident that the appellant challenged the very jurisdiction of the Capital Development Authority (hereinafter referred to as 'the C.D.A.') to snake the impugned acquisition under the Ordinance. If it had succeeded in establishing that the impugned acquisition was ultra vires the Ordinance, its appeal under section 36 would have been an exercise in futility. It. Was held by the Supreme Court in Lt.-Col. Nawabzada Muhammad Amir Khan v. Controller of Estate Duty and others PLD 1961 SC 119, that the rule that the High Court will not entertain a writ petition when other appropriate remedy is yet available is not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction It was further observed that one of the well-recognised exceptions to the general rule is a case where an order is attacked on the ground that it was wholly without authority.
11. The appellant has also alleged mala fide in law against the C.D.A., a statutory functionary in the case of East and West Steamship Co. v. Pakistan PLD 1958 SC (Pak.) 41 this Court has held that where a statutory functionary acts mala fide or in a partial, unjust and oppressive manner, the High Court in the exercise of its writ jurisdiction has power to grant relief to the aggrieved party. The learned Judge of the High Court has correctly dealt with this aspect of the question."
12. In the second case, the portion of the judgment relied upon by the counsel reads: "It may, however, be added that the rule when there is an adequate alternative remedy the High Court will not interfere tinder Article 199 is only a rule of discretion and not a rule of law. The High Court will issue a writ, although an alternative remedy exists, where there is patent want of jurisdiction, or where statutory functionary, and more so, a fiscal authority, acts in a partial, unjust or oppressive manner."
13. However, the said petition which was filed to. Challenge the order of the Collector of Custom, without first exhausting the remedies available under the Customs Act was dismissed with the observation that: "After carefully considering the matter and after hearing learned counsel appearing for the petitioner, we are of the view that it is a case where the petitioner should have exhausted all the remedies before invoking the Constitutional jurisdiction of this Court."
14. The third case pertains to a railway employee who was dismissed from service for misconduct. He challenged his dismissal directly in the High Court by filing a Constitution petition and his petition was allowed. On the point of availability of alternate remedy the learned Judges observed: "To our mind it was for the learned counsel for the respondents to show that the grievance was one for which the remedy was the I.R.O. And he has not been able to so demonstrate except that the Rules provide for a departmental enquiry, a right to the person proceeded against to cross- examine the witnesses and to adduce evidence in defence." and further that: "We are, therefore, of the view that in the circumstances of the present case the remedy under section 25-A would not have been an adequate alternate remedy. We may here take the opportunity of impressing upon advisability of taking such a plea--plea of an adequate alternate remedy--at the earliest occasion, for if such a plea is taken after elapse of several years it may prejudice the petitioner though of course it was for the petitioner to show in the first instance that he had no alternate adequate remedy."
15. In the last of the aforesaid cases the Constitution petition filed by several employees of the Municipal Committee challenging their termination was allowed in the circumstances that earlier to their services had been terminated which they challenged through a Constitution petition.
16. During the pendency of that petition the termination was withdrawn and thereupon the petition was disposed of Later the services of these petitioners were again terminated which the petitioners challenged in the above petition. This the the respondents defended the termination on the ground that the petitioners were appointed during the period when ban on appointments was imposed.
17. The Court, however, finding that this plea though available earlier to was not taken in the first petition and also that it was factually incorrect, held that the termination was tainted with mala fides and allowed the petition.
18. Mr. S. Nasir Hussain Jafri, the learned counsel for the respondents questioned the maintainability of these petitions on the ground that the petitioners failed to exhaust the remedy available to them under section 25-A of the Industrial Relations Ordinance, 1969. On facts, he denied that the petitioners were permanent employees or that termination of their services was mala fide.
19. In the present petitions the termination order is challenged as being violative of Standing Order 12 of the Standing Orders Ordinance. It was contended that the violation being apparent on the face of the order it was not necessary to avail of the alternate remedy provided under the said Ordinance. The contention has no force. It is well-settled that where a statute creates a right and provides a machinery for its enforcement, a party complaining of breach of the statute must avail of the remedy provided under the statute. The Supreme Court in the case of Tariq Transport Company v. The Sargodha-- Bhera Bus Services (PLD 1958 SC (Pak.) 437) observed that:-- "------where a statute creates a right and also provides a machinery for the enforcement of that right, the party complaining of a breach of the statute must first avail himself of the remedy provided by the statute for such breach before he applies for a writ or an order in the nature of a writ."
20. It is apparent from Standing Order 12 that while on the one hand it places restrictions on employers' right of termination and creates new rights for the employees, on the other it evolves a machinery under clause (3) for the enforcement of that right and for redress of grievances arising out of violations of the provisions thereof. Clause (3) reads as follows:-- "(3) The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by another order in writing which shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge or dismissal, he may take action in accordance with the provisions of section 25-A of the Industrial Relations Ordinance, 1969 (XXIII of 1969) and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance. "
21. By virtue of clause (3), reproduced above, the aggrieved employee is required to have recourse to the provisions of section 25-A of the Industrial Relations Ordinance, 1969 which provides a comprehensive procedure to be followed by the aggrieved person for availing the remedy. It appears from Standing Order 12 read with section 25-A that an order of termination in violation of Standing Order 12, if not challenged in the manner and within the the prescribed by section 25-A, may become unassailable with the expiry of the prescribed the limit thereby creating new right in favour of the employer. For this reason to the remedy provided under section 25-A must in the first instance be resorted to for enforcement of the right under Standing Order 12.
22. As regards the allegations of mala fides, the petitioners counsel have failed to substantiate these.
23. The case relied upon by petitioners' counsel do not help them. In the Murree Brewery case the acquisition of properties involved was found to be without jurisdiction and in flagrant violation of the provisions of the Ordinance as well as mala fide for the reasons set out in the judgment. As to Shahid Agency's case, the petition was dismissed as the petitioner had failed to avail of the remedies provided under the statute. In Akram Butt's case what seems to have weighed with the learned Judges who allowed the petition was the fact that the respondents failed to show that the case was covered by the provisions of the I.R.O. And also that the objection with regard to the maintainability of the petition on the ground that adequate alternate remedy available under statute was not availed by the petitioner was not taken at an early stage. As to the last case there the mala fide was obvious from the conduct of the respondents.
24. For the reasons discussed above we find no merit in these petitions and accordingly dismiss the same, alongwith all pending miscellaneous applications. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.