Abdul Wahid Vs Govt etc

j

THE A UCUST PESHA WAR HISH:CO(Jkt iiwct

ABBOTTAHAD

W.P. No. SckT 72016

Abdul Wahid s/o Sardar Muhammad Driver In. Estate Office, T&T Colony Haripur

2.Muhammad Ismail s/o Muhammad 1-laleem, TIC Stares, Estate Office, T&T Colony Haripur Saleh Shah s/c Abdur Rehman Shah, Electridan, Estate Office, T&T Colony Haripur Muhammad Mukhtar 5/0 Abdur Rahim, 551, Estate Office, T&T Colony Haripur Muhammad Saleem s/o Noor Muhammad, Qasid, Estate Office, T&T Colony Haripur C). Naveed Ahmed s/o Qalandar Khan, AE, Estate Office, T&T Colony Haripur

7.Naveed Ahmed s/o Nazir Ahmed Siddiqul, A.Admin, Estate Office, T&T Colony Haripur 1⁄4?. Muhammad Rafique s/o Haji Ahmed, MW, Estate Office, T&T Colony Haripur Gulfaraz s/o Muhammad Sanar, MW, Estate Office, T&T Colony Haripur Muhammad Saleem s/o Muhammad Zarnan Khan Plumber, Estate Office, T&T Colony Haripur.

Astar Shah s/o Ashraf Shah, GEl, Estate Office, T&T Colony Haripur Sher Aslam s/o Mujibullah Khan, HS, GF Estate Office, T&T Colony Haripur Abdul Ghaffar s/o Sardar Muhammad Whi Estate Office, T&T Colony Haripur Haq Nawaz s/o Muhammad Akbar, PH Estate Office, T&T Colony Haripur Nazar Gui s/o Sammandar Khan, Mali Estate Office, T&T Colony Haripur Mehboob Khan s/o Daud Khan, PD Estate Office, T&T Colony Haripur Abdur Rehman s/o Mir Haider, MH Estate Office, T&T Colony Haripur Aziz ur Rehman s/a Niaz Mehmood, SK-I Estate Office, T&T Colony Haripur Muhammad Iqbal s/o Mian Khan, Driver Estate Office, T&T Colony Haripur

all Umer Khan s/o Muhammad Akbar, Qari in Telecom Boys High School Haripur Abdur Rehman s/o Sher Afzal, Qari in Telecom Boys High School Haripur Nawab Khan s/o Aurangzeb Khan, SET Telecom Boys High School Haripur Waqar Jadoon s/o Muhammad Akram CMP INST: Telecom Boys High School Haripur

Sajida Mehboob w/o Muhammad Mehboob, SET Telecom Girls. School & College Haripur Nighat Parveen w/o Maqsood Akhtar, Telecom Girls School & Colege Haripur Gulnaz Bibi w/o Farooq Khan, JET, Telecom Girls School & College Haripur

Judgment Sheet -

IN THE PESHAWAR HIGH CURT;

ABBOTTABAD BENCH. N

JUDICIAL DEPARTMENT•

WP No. 585-A/2016

JUDGMENT

Date of hearing. ........ 08-08-2017.........................

SYED ARSHAD All, 1:- Through this single judgment we intend to dispose of writ petitions No.585-A/2015, 550-A/20161 703-A/2016, 930-A/2016 and 03-A/2017, as in the above writ petitions a common question of law is involved.

%fiedt0"

EXAMINER

r"ed 2. The petitioners through the instant 2 6 SE petitions claim to be regular employees of Bench PeShN31 ou Odrls , Telephone Industries of Pakistan, "TIP" uthorized which is a Private Limited Company owned and controlled - by Federal Government. () Their common and precise grievance is that they are the employees of TIP, however, the management of TIP does not

recognize them as their employees. They have chalienged the stance of the management 61 TIP, whereby they have been treated as the employees of Colony Board established in the year 1957 as independent body to look after the affairs of housing colony of the employees of TIP and the. erstwhile Pakistan telegraph department "P&T".

3.In writ petition No.930-A/2016 the petitioner is the Principal of Telecom Girls Public School and College, Haripur and he also claims the same relief against the respondents.

.4. In writ petition No.703-A/2016 the petitioner is allegedly the General Secretary of TIP Employees and WOrkers Union (Reg) CBA, Haripur and other petitioners are allegedly the office bearers of the CBA.

5.In writ petition No.550.-A/2016, petitioner No.1 claims to be the President of TIP Employees and Workers Union (Reg) CBA, Haripur and other members of union also seek appropriate orders for setting aside the impugned actions of respondents, however, in essence the claim of the petitioners revolves around factual and legal grounds as alleged in the aforesaid other writ petitions.

6.Writ petition No.03-A/2017 has been filed by Dr. Iftikhar All, Medical I . Superintendent of T&T Colony Hôspftal, Tehsil and .Distrkt Haripur and seeks indulgence of this Court f6r protection of his service.

7.The learned counsel for petitioners while arguing his case has referred to the documents placed on record such as income tax deduction certificates, whereby income tax has been deducted from their salaries as the employees of TIP, EOBI Registra, appointment letters and certain posting and transfer orders of the employees from Colony Board to other units of TIP, and allotment of accommodation to the petitioners in the Colony. He has also referred to the minutes of meeting held under the supervision of Managing Director of the TIP dated 07.02.2008 wherein it has been

I

confirmed in item (m) that Colony Board will be considered as part of TIP and main power/estate will be utilized for factory and family quarters.

8.Learned counsel for petitioners has also referred to the appointment letter of the then Managing Director of TIP dated ci 06.10.2008, which reflects that the said incumbent was also appointed as Chairman of Colony Board. Learned

counsel has also stated that even TIP provides uniform to the petitioners and has also referred to the letter relating to the budget of TIP visLavis Colony Board. In those letters it has been confirmed that Colony Board budget is the part of TIP budget.

9.Learned counsel appearing on behalf of respondent No.2/PTCL has raised preliminary objection to the maintainability of the petitions and stated that the petitioners have no relation with respondent No.2 and even their relation of alleged employment with TIP is not governed by any statutory rules, therefore, the present petitions are not maintainable.

10 Learned counsel appearing on behalf of respondents No.3 to 7 (TIP) stated that indeed T&T Colony Board was established on 28.5.1957 as non-profit entity to look after the maintenance including annual repairs, special repairs of all buildings located in the Haripur T&T Colony. He further stated that T&T Colony Board was established as non-profitable organization by the erstwhile Pakistan Telegraph Department of Government of Pakistan and TIP. The expenses of the Colony Board were to be borne by both the entities at the ratio of 50:50.

J

or

11.Arguments heard and record perused.

j1.2. The perusal of the record shows that the Government of. Pakistan had acquired V 306 aères, 03 karials and ii marlas land through an Award dated 25.4.1953 at District Haripur. On . the said land the Federal Government established Telephone Manufacturing Factory. However, the said factory was owned by a private limited company, Telephone Industries of Pakistan Private Limited (TIP). In the said premises the Federal Government also established Telecom Staff College and National Radio Telecommunication Corporation "NRTC". As three differen€ organizations were operating and functioning ( all under the control of Federal Government) in. the acquired area, hence it was decided by the then competent authority to provide basic necessities as Hospital, Schools, Residential Quarters Security for the facilitation of employees serving in the aforesaid organizations in one compound. To look after and supervise the aforesaid k thO3.,.=.r.'

amenities, a separate Board commonly referred to as T&T Colony Board was established as independent entity. The then DG, T&T was administrative head of three organizations all operating in one compound and was appointed by the

Federal Government as the administrative head of the T& T Colony Board" Board".

13.In order to. fully understand the composition of the Board,. we deem it appropriate to reproduce letter memo No.N/57-3/57 dated. 285.1957 which has given birth to the establishment of the Board.

"PAKISTAN POSTS AND TELEGRAPHS

DEPARTMENT

Office of the director general posts and telegraphs.

Memo No.57-3/57 Karachi 28Th May, 1957 Subject:- SETTING UP OF COLONY

BOARD FOR THE P&T COLONY AT

HARIPUR.

For the purpose of maintenance of the Colony of P&T and TIP at Haripur it has been decided to form a Colony Board consisting of following:-

General Manager .... Chairman.

IQ

T.LP.

Principal Member.

5o0i Training College Haripur.

Chief Accountant Member.

T.LP.

0 Estate Officer Colony Board Secretary.

Haripur.

The Colony Board will be responsible for all the maintenance, work including annUal repairs, special repairs and petty works of all the buildings .in the Hairpur P&T Colony, factory buildings, Training College and Hostel. ' The Colony Board will also be. responsible for the conservancy arrangements, horticulture, electricity, water supply, health and roads and such other work as necessary for the general' up-keep, welfare and the provision of amenities in the Colony.

The expenditure for the purpose will be met by grants under the relevant heads provided for under the bUdgets of the T.LP and Training College respectively and will be shared in proportion of 50:50 between P.& T. And T.I.P.

Sd/- Lt. Col:

(S.A.Siddiqui) Director General, Chairman of the Board, Of T.I.P."

14.The Pakistan Posts and Telegraph t — \Mtt

/ I

Department was initially A department of q / the Federa! Government, however, its 2 c composition and restructuring have Ordi P2S' 1 or /3C'.

undergone sea changes. In the year 1991 through the Act of Parliament, Pakistan Telecommunication Corporation Act, 1991 Act No.XVIII of 1991, " Act of 1991" a corporation was established under section 2? 3 of the Act of 1991 known as Pakistan Telecommunication Corporation. The task

of maintaining telecommunication was assigned to the said corporation Under the said Act:the Federal Government has granted a license to the • corporation to I establish1 maintain and operate telegraphs throughout Pakistan and between Pakistan and other countries. Resultantly, the employees of erstwhile P&T department were transferred to the newly created Corporation under the Act of 1991. All the assets and liabilities of the P&T were also transferred to the newly created Corporatio

15.In the year 1996 through Pakistan Telecommunication (Re-organization) Act, 1996, "Act of 1996" The entire telecommunication system of the country was reorganized and restructured. Under the .Act of 1996, Pakistan Telecommunication Authority was ru.

established as a regulator of the telecommunication system in Pakistan. Under section 34 of the Act of 1996 the c.1

Federal Government was tasked to establish a company to be known as the Pakistan Telecommunication Company Limited under the Companies Ordinance, 1984 with the principal object of provision of domestic and international communications and related services.

Whereas under section 41 of the Act, 1996 National Telecommunication Corporation (NTC) was established for. provisions of teleèomrnunications services within Pakistan on non- exclusive basis only to the Armed Forces, Defence Projects, Federal Government, Provincial Governments and other Government agencies. The corporation which was established under Act No.XVIII of 1991 was dissolved and its assets and liabilities were transferred to the newly created company (PTCL), NTCL and other entities established under the Act of 1996.

16.Although no such record of transfer of assets from the erstwhile P&T Department to the Corporation and then to newly created entities under the Act of 1996 has been provided to us, however, Vrt1e C certain documents relating to the distributions of the land upon whidi a 2b Cc Colony was established is as following:- TIP 432 kanals.

NRTC 611 kanals.

PTCL 1408 kanals.

Resultantly, NRTC and PTCL stepped into the shoes of erstwhile P&T department of the Federal Government being partner in the Board.

17.Due to financial constraints, all the aforesaid stakehôlders and members of the Board unanimously decided in its 171st meeting. to dissolve the Board. However as ecident: from letter dated 01-03-2007 the said dissolution was put in abeyance.

In essence all the petitioners at the time of filing writ petitions were aggrieved of the letter dated 17.05.2011, wherein all the stake holders referring to the 185th meeting of the Board discussing the post dissolution matter of the Board. The petitioners hence claim that they are the employees of TIP and not of Board, therefore, the dissolution of the Board would not affect their status being the employees of TIP. However, the issue that whether the Petitioners are the employees of the Board or TIP has been judicially 26 determined by the competent court of law. - coJtd Bench Pesha!a hh -. 7,c c,rl Ordn T&T Colony Board Emolovees And Workers, Haripur through its President filed a petition against the Chairman T&T Colony Board before the learned Labour Court, Haripur. Wherein, they prayed that the employees of CBA be allowed pension benefits in the same manner as pension as the employees of TIP, the employees of Colony Board also be provided residential

plots of 5, 7, 10 marlas and one kanal in the same manner as allowed to other employees of TIP and their ser ices be also regularized. The learned Labour Court dismissed the said petition holding that the employees of Board are not entitled to the said facilities as the Board is neither a corporate body nor any commercial industrial establishment carrying any profitable activity, whereas TIP is an industrial undertaking. The said decision was challenged before the Chairman, Labour Appellate Tribunal, Khyber Pakhtunkhwa, Peshawar in appeal. The Chairman, Appel!ate Tribunal also dismissed the appeal on 13.9.2002, wherein it was held that:- "The pension scheme for the employees of TIP was introduced way back in the year 1990 on self-finance basis. It is a matter of record that TIP is an income generating entity and its employees are at so granted rewards, bonuses, etc for the profit earned in the process and that is why they have been given the benefits of pension on self-finance basis. The T&T :8. Colony Board is neither an income generating institution

npr any industrial unit rather it is a charitable institution purely run on the basis of funds and donations extended by the three independent units mentioned above. It is also pity to note that the pension scheme for the TIP employees had been introduced in the year 1990 while the appellants are agitating the denial of such benefits in the year 1999 i.e. after a lapse of nine years, meaning thereby their case is also hit by the principle of laches."

18.Hence the matter that the Board is a separate and distinct entity from TIP and its employees are also not the employees 71fiCt1° be True of the TIP has been finally determined by

EXIPU

the Labour Appellate Court. Hence the 2E issue has attained finality and being a past Pesh3\a1H c/75 Evd2!E and closed transection cannot be re- opened in the present proceedings.

19.During present proceedings efforts were made by this Court to provide a respectable package to the Petitioners on dissolution of the Board. On 06.12.2016 this Court directed the respondents to sit together and decide the matter relating to

a

iç4 the petitioners without any further loss of time and also directed the concerned high- ups of the TIP,PTCL and NRTC to appear before the Court on the next date of hearing with a concrete proposal. Pursuant to the said directions all the aforesaid stakeholders held a meeting on 23.12.2016. In the said meeting it was agreed as below:-

"The three stakeholders therefore decided to place the agreed package before the High Court (as detailed below): Compensation Package.

77 employees of the ex-co/ony board including the petitioners may be given a package of goodwill i.e. salary in lieu of notice period as per the terms and conditions of their individual appointment letter plus two additional salaries, based on salary last drawn on 30.6.2016. GPF/Gratuity Contributions.

GPF and Gratuity to the 77 employees as due to them as on 30.6.2016 may be disbursed to them after required verification of record and due diligence/reconciliation.

('3) Opportunity of providing job in PTCL and NTR C.

A In order to facilltate these employees to lcd

continue their earnings, it was decided in

I.

I

/ principle, that the 77 employees would be / given fresh employment/adjusted within / the two organiiatiohs i.e. PTCL and NRTC as per their approved policies with effect from 01.07.2016. Their starting salaries shall be equal to their last gross salary drawn on 30.06.2016. Fourteen (14) of the employees out of the said 77 employees fall within the share of NRTC while the remaining sixty three (63) employees fall within the PTCL share."

Despite the fact that the services of the petitioners do not enjoy and statutory protection, however, if the aforesaid package is viewed through the prism of Standing Orders Ordinance 1968, the same appears to be more lucrative than the rights guaranteed to employees of commercial or industrial establishments. Hence the package offered to the ExMtt:ç petitioners pursuant to the order of this 2b court is appropriate and does not infringe

E

J~6h~s the rights of the petitioners.

Now moving to the preliminary objection to the maintainability of these writ petitions. Admittedly, the petitioners are the employees of the Board and their employment is not governed through any

U It

statutory rules, hence the relationship is that of a master and servant.

In Pir Imran Sajid and others vs Managing Director/General Manager (Manager Finance) Telephone Industries of. Pakistan and others 2015 SCMR 1257, the August Apex Court while issuing directions for regularizing the services of the employees of TIP pursuant to the decision of Cabinet has ruled that;- "Keeping in view such status of the company, and the "Function Test" as prescribed and applied by a five member Bench of this Court in the case of Abdul Wahab and others v. HBL and others (2013 SCMR 1383), authored by one of us (Mien Saqib Nisar, 3), which test/criterion is fully, meet in the present case, the

EXAM

status of TIP could not prevent the appellants from seeking constitutional P"h'War H4rl C .. ic Evid Ord! remedy as the company clearly falls within the definition of a "person" as envisaged by Article 199 of the Constitution. The learned counsel for respondents, in support of his second objection i.e. lack of statutory service rules, retied upon the judgment in the case of Fakhrur-Islam Qureshi (Civil Appeal No.424 of 2009), authored by one of us (Mian Saqib Nisar,

S

r

3.), whereby the said appeal was dismissed on the ground that relationship between the appellant, retired employee and TIP is not goveined by statutory rules: Such reliance, in our view, is wholly mis-placed for thereason, that unlike in the present case the appellants therein were seeking pensionary benefits on the basis of pensionar-y rules, which rules were non- statutory. Whereas in the present case, the appellants are seeking implementation of the directive of the Prime Minister of Pakistan and the decision of the cabinet sub-corn mfttee for their regularizatjon sought to be enforced by the relevant ministry."

Hence, a clear distinction was drawn by dtobe Irue'a) the August Supreme Court between the

EXAMINER I

rights accruing on account of government 26 decision and internal policy of an organization having no statutory statutes. peshWErse752 uth,jizedU._r Similarly in M/o IPC through Secretary and others Vs. Arbab Altaf Hussain (2014 SCMR 1573) the August Supreme Court in para 13 of the judgment very clearly held that;

"As regards the other respondents are concerned, without going into the question whether a collateral attack could be made by them qua the supersession of the

Board, when primarily they were aggrieved of their termination orders. Suffice it to say these petitions were. liable , to be dismissed for two simple reasons firstly that their services were not governed by any statutory rules and thus their writ petitions were not competent in terms of the law, laid down in the judgment reported Abdul Wahab and others v. HBL and others (2013 SCMR1383), secondly, the employment(s) of the said respondents admittedly was, contractual in nature and their services were terminated after due notice as per their contractual terms and conditions of service. And even on this account the wrft petitions were incompetent and had to fail.. It may be added here, that their termination(s) was made by the competent authority in the

I'

t L

EXAIM~NER

Board; for example in the case of Arbab Altaf Hussain, as stated earlier, notice was couXw Bench Pesh3' "9 cJ5 Evd Ord served upon him and ultimately his service was terminated by Director HR & A. who as per the Board's non-statutory rules, was the competent (authority) to do so. Besides to their extent the rule of exercise of de facto jurisdiction was attracted even if the supersession of the Board was assumed to be bad in law. So the writ petitions filed by all other respondents, as

mentioned earlier, were liable to be dismissed on these scores." A

22.Admiftedly the petitioners are the employees, of the Board and the employment of the petitioners at the Board is not governed through any statutory rules .and the respondents have agreed to provide the petitioners with terminal benefits, hence the present petitions are not maintainable.

In the light of above, these petitions are dismissed.

Announced.

/Agfl.

ExAM;NE—T )

26 SEP 2U

Peshawar hh Cot' Md. Bench Authodzed Under 75 Evd Ordns: ) U D.G E (AFtab)