PLJ 2011 Karachi
Present: Gulzar Ahmed & Shahid Anwar Bajwa, JJ.
HIDAYATULLAH--Petitioner
versus
FEDERATION OF PAKISTAN through Secretary Ministry of Information Technology and Telecommunications, Islamabad
C.P. No. D-1107 of 2010, decided on 16.5.2011.
Sacked Employees (Re-instatement) Act, 2010--
----S. 4(a)(b)--Employment of Telecom Foundation--Non-statutory rules of organization--No stipulation of any period of contract in letter of appointment--Question of--Maintainability--When one was terminated from employment before or after expiry of contract period--Petitioner categorically denied that he signed any other document in respect of term of contract and corporation failed to produce any document--Petitioner was entitled to be re-instated in service in accordance with provisions contained in S. 4(a) of Act, 2010--Petitioner was also consequently entitled to other benefits provided by Sacked Employees (Re-instatement) Act--Petitioner was ordered to be reinstated in service within a period of two weeks--Appeal was allowed. [Pp. 51 & 52] A, B & C
2010 PLC 323 & PLD 2011 SC 132.
Mr. Aziz-ur-Rehman Akhund, Advocate for Petitioner.
Mr. Muhammad Qasim, Standing Counsel for Respondent No. 1.
Mr. Sanaullah Noor Ghauri, Advocate for Respondent No. 2.
Date of hearing: 11.5.2011.
Judgment
Shahid Anwar Bajwa, J.--For reasons to be recorded later this constitutional petition was allowed by short order dictated in open Court on 11.05.2011. The following are reasons of the same.
2. Petitioner was taken in employment of Telecom Foundation, a project of Pakistan Telecommunication Company Ltd., vide order dated 14.10.1996 "on daily waged contract basis". No period of contract was specified in the letter. It was further stated that it was to be "according to the terms and conditions already agreed and signed by you" (present petitioner). Pakistan Telecommunication Company Ltd. transferred and posted the petitioner and gave him training also. Thereafter he was attached and posted with AEP Digital Sibi. However, on 29.12.1996 Respondent No. 2 terminated contract with effect from 29.12.1996. This Constitutional Petition has been filed and the following prayers have been made:--
(A) To declare that Petitioner qualifying the ingredients of Sacked Employees (Reinstatement) Ordinance, 2009 and so also Sacked Employees Reinstatement in Service Ordinance, 2010, is entitled to his reinstatement in service with all back benefits, under the said Ordinances and the Respondents inactions to give effect to the said Ordinances, in the case of Petitioner, is illegal, ultra virus, discriminatory and against the principle of natural justice and equity.
(B) To direct the Respondents to order reinstatement of the Petitioner into service with all back benefits under the Sacked Employees (Reinstatement) Ordinance.
3. Learned counsel for petitioner submitted that petitioner falls within the definition of `Sacked Employee' as given in Section 2(f) of the Sacked Employees (Re-instatement) Act, 2010, (hereinafter referred to as the Act, of 2010). Therefore petitioner is entitled to reinstatement and benefits under the Act, of 2010.
4. Mr. Sanaullah Noor Ghauri learned counsel for the Respondent No. 2 firstly, submitted that that Pakistan Telecommunication Company Ltd. has no statutory rules and, therefore, writ petition is not maintainable. In this regard he referred to Ejaz Ali Bughti v. P.T.C.L. and others (2008 PSC 1229). Learned counsel further submitted that employment of petitioner was terminated in 1996 and he has filed this petition in 2010. Therefore, petition very seriously suffered from laches. He relied upon a judgment of this Bench of this Court passed in case of Masroor Hussain and 45 others v. Chairman, Pakistan International Airlines and another (2010 PLC [C.S.] 630). However, Mr. Ghauri frankly conceded that in terms of definition of `Sacked Employee' as far as dates are concerned, the petitioner falls within those dates.
5. We have considered submissions made by the learned counsel and have also gone through the record as well as case law cited at the bar.
6. As far as status of Pakistan Telecommunication Company Ltd. is concerned, this Court in case reported as Nasiruddin Ghori v. Federation of Pakistan through Secretary and 4 others (2010 PLC 323) has held the PTCL is a person within contemplation of Article 199 of the Constitution. It was further held that PTCL does not have statutory rules and writ petition by the employees of PTCL would not be maintainable in respect of any matter governed by such non-statutory rules. Judgment by this Court was upheld by the Supreme Court in the case of Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others (PLD 2011 SC 132). Therefore, the question that PTCL is a person within the contemplation of Article 199 of the Constitution admits of no doubt.
7. Petitioner in this petition has not claimed any right under his terms and conditions of employment or non-statutory rules of organization. The right that he has claimed is in terms of provision contained in the Sacked Employment (Re-instatement) Act, 2010. Therefore, this aspect is governed by provision of a Statute and in accordance with law principle laid down by this Court in the case of Shahid Mahmood Usmani v. House Building Finance Corporation through Managing Director and others (2010 PLC [C.S] 1360) writ petition is held to be maintainable.
8. As far as question of laches argued by learned counsel for Respondent No. 2 is concerned, suffice it to observe that such right has been given to the petitioner for the first time by the Sacked Employees (Re-instatement) Ordinance, promulgated in 2009 and this Ordinance, has been converted into the Act, of 2010. Thereforelaches are not attracted to the case of petitioner.
9. Section 4 of the Act, provides as under:--
"4. Re-instatement of employees in service and regularization of employees' service.--Notwithstanding anything contained in any law, for the time being in force, or any Judgment of any tribunal or any Court including the Supreme Court and a High Court or any terms and conditions of appointment on contract basis or otherwise, all sacked employees shall be re-instated in service and their service shall be regularized with effect from the date of enactment of this Act, in the manner provided as under, namely:--
(a) a sacked employee appointed on permanent or temporary basis or regular or ad hoc basis or otherwise in any corporation or Government service against a regular or temporary post shall be re-instated and regularized in regular service of the employer on one scale higher to his substantive scale, grade, cadre, group, post or designation, whatever the case may be, held by the sacked employee at the time of his dismissal, removal or termination from service or at the time forced golden hand shake was given to the sacked employee;
(b) a sacked employee appointed on contract basis against a regular or a temporary post and dismissed, removed or terminated from service before or after expiry of the contract period and whether or not he was again appointed and allowed to complete the period of contract, irrespective of the fact that whether a letter or notification for dismissal, removal or termination of the sacked employee's service or expiry of the contract was issued or not, shall be re-instated and regularized against a regular post of the same scale, grade, cadre, group, post or designation, whatever the case may be, in regular service of the employer.
10. The relevant provision in the letter of the appointment has been quoted above. There is no stipulation of any period of contract in the letter of appointment issued to the petitioner. Therefore, Clause "(b)" of Section 4 is not applicable to petitioner because it is applicable when one is terminated from the employment "before or after expiry of the contract period." Moreover the petitioner categorically denied that he signed any other document in respect of term of contract and respondent corporation failed to produce any such document.
11. Since no period of contract has been specified in the letter dated 14.10.1996 case of the petitioner has to be dealt with not in accordance with Section 4(b) but in accordance with Section 4(a) as the latter deals with employment on "regular or ad hoc basis or otherwise". Therefore, petitioner is entitled to be re-instated in service in accordance with provisions contained in Section 4(a) of the Act, 2010. Petitioner is also consequently entitled to other benefits provided by the Act, 2010. Somewhat similar constitutional petition has been allowed by this Court in the case of Abdul Jabbar Mastoi and others v. Federation of Pakistan, through Secretary, Ministry of Information Technology & Telecommunications, Islamabad
12. Result of the above discussions is that this petition is allowed and petitioner is ordered to be re-instated in service in accordance with Section 4(a) of the Act, of 2010 within a period of two weeks of the date of this judgment. It is also ordered that petitioner is to be paid benefits according to the provisions of the Act, of 2010.
(R.A.) Petition allowed.
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