PLJ 2013 Islamabad
Present: Iqbal Hameed-ur-Rehman, C.J.
MUHAMMAD ARIF etc.--Petitioners
versus
FEDERATION OF PAKISTAN etc.--Respondents
W.P. No. 148 of 2011, decided on 21.12.2011.
Pakistan Telecommunication Corporation (Employees Pension Fund) Rules--
----Rr. 8(e) & 15--Pakistan Telecommunication (Re-organization) Act, 1996, Ss. 36, 44 & 59--Constitution of Pakistan
PLD 1970 SC 453; PLD 1966 SC 188; 1995 SCMR 1840; 1989 SCMR 353 and 2010 SCMR 253 rel.
Non-Statutory Rules--
----Draft rules--Challenge to--Writ jurisdiction--Maintainability--Draft rules cannot be challenged before any other forum except in constitutional jurisdiction. [Pp. 187 & 188] I
Trust Act, 1882--
----S. 34--Alternate remedy--Truste can approach Civil Court Civil Court
PLD 2008 SC 135 rel.
Mr. Khalil-ur-Reman Abbasi, Advocate for Petitioners.
Mr. Imran Haider Shah, Advocate (in W.P. No. 522/2011).
Ch. Mushtaq Hussain, Advocate (in Writ Petition No. 2372/2011).
Syed Kausar Ali Shah, Advocate (in W.P. No. 984/2011).
Mr. Tariq Mehmood Jehangiri, Deputy Attorney-General.
M/s. S. Naeem Bokhari & Mr. Ejaz Janjua, Advocates for Respondents No. 2 and 3 (and on behalf of Respondent No. 1 in W.P. No. 984/2011).
Date of hearing: 29.11.2011.
Judgment
By means of this single judgment, the instant writ petition as well as three other connected writ petitions i.e. W.P No. 522 of 2011 titled Fida Hussain etc. Vs. Federation of Pakistan etc., W.P. No. 2372 of 2011 titled Muhammad Anwar Shahid etc. Vs. Federation of Pakistan etc. and W.P. No. 984 of 2011 titled Fazli Malik etc. Vs. Chairman Pakistan Telecommunication Limited etc., are being decided as all the four petitions carry common questions of law and facts.
2. The epigrammatic salient features of instant matter are that the petitioners were the employees of Pakistan T&T Department, Government of Pakistan and their rights including the pensionary benefits are protected by the Pakistan Telecommunication Act, 1991 and Pakistan Telecommunication (Re-organization) Act, 1996, therefore, the terms and conditions of pensionary benefits of the petitioners cannot be altered or modified. The Pakistan Telecommunication Act, 1991 and the Pakistan Telecommunication (Re-organization), Ordinance, 1996 were repealed by virtue of Section-59 of the Pakistan Telecommunication (Re-organization Act), 1996. The terms and conditions of the transferred employees pertaining to their pensionary benefits have been guaranteed by the Federal Government under Section 36 of the Pakistan Telecommunication (Re-organization) Act, 1996. It is further alleged that Pakistan Pakistan
3. In Writ Petition No. 984/2011, the petitioners have also challenged the Notification dated 27.1.2011. In Writ Petition No. 2372/2011, the petitioners have prayed that pension be granted as per Government Notifications. The petitioners of Writ Petition No. 522/2011 request for grant of pension and medical allowance according to Government Notifications and further challenged the Notification dated 27.1.2011.
4. Respondents have vehemently opposed all these petitions.
5. Mr. Khalil-ur-Rehman Abbasi, Advocate learned counsel for the petitioners vociferously contended that according to Rule 8 (e) of Rules of Pakistan Telecommunication Corporation (Employees Pension Fund), the increase in pension of the existing pensioners is to be granted as allowed by the Government from time to time and according to Rule 15 ibid all the amendments etc. promulgated by the Federal Government for the improvement of pension benefits to its employees, these rules stood modified. He maintained that by virtue of notification dated 27.1.2011, pension was increased into two categories i.e. 20% for pensioners who had retired before 01.1.1996 and 8% for pensioners who had retired on or after 01.1.1996. Learned counsel for the petitioners referred the Pakistan Telecommunication (Re-organization) Ordinance, 1995 and read definition clause 2(t) wherein definition of employees has been elucidated which depicts that "Telecommunication employees" means the employees of the Corporation who are transferred to the employment of the Company under this Ordinance, other than those to whom sub-section (3) of Section 36 applies, and all persons who, on the effective date for the Company, were employees of the Corporation, the former Telegraph and Telephone Department of the Federal Government and are receiving, or are entitled to receive, pensionary benefits from the Corporation."
6. Learned counsel then read out Section 35 of said Ordinance, which provides that "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." It is next contended that in compliance with this provision, S.R.O. 1(I)/96 dated 01.01.1996 was issued by the Government and suppression of the same another S.R.O No. 115(I)/96 dated 07.2.1996 was issued. The learned counsel relied upon Section 7 of the same, according to which "with effect from the 1st of January, 1996, the liability of the Corporation in respect of payment of the pension of the Telecommunication employees shall be transferred to the Pakistan Telecommunication employees Trust (Trust) and the Company shall be liable for, and has assumed the responsibility to contribute to, the Trust, the amount determined in accordance with Section 45 of the said Ordinance." Learned counsel invited the attention towards Sections 44 & 45 of the Pakistan Telecommunication (Re-organization) Ordinance, 1995; whereby the Federal Government was to establish a trust. Section 45 ibid reflects that "the Federal Government shall, by notification in the official Gazette, order that from the effective date, all assets of the Pakistan Telecommunication Corporation Employees Pension Fund as created by a Trust Deed dated, the 2nd April, 1994, hereinafter referred to as the "Pension Fund", and such liabilities are specified in the notification, shall vest in and shall become the assets and liabilities of the Trust." He expressed the view that in pursuant to Section 44 ibid Notification No. 5(3)/93-PTC dated 3.1.1996 was issued by the Government of Pakistan; whereby trust was created and trustees were nominated. Learned counsel pointed out that the department was bound to pay the pension according to increases made by the government and the same has been paid till 30th June, 2010, but thereafter the respondents after taking a U-turn did not pay the pension according to increase made by the Government. Learned counsel then particularly referred Letter No. F. 4(I)-Reg-6/2009 dated 13.7.2009 issued by the Government of Pakistan, Finance Division (Regulations Wing), according to which pension was enhanced and in pursuant thereof Pakistan Telecommunication Employees Trust vide Letter No. Pen/PTET/LHR/Misc/5085 dated 21.7.2009 increased the pension as enhanced by the Government. He also referred certain other letters to demonstrate that previously the pension had been enhanced according to increase made by the Government. Learned counsel invited attention of the Court towards Office Memorandum dated 27.8.2011 issued by the National Assembly Secretariat and according to clause-iv "Committee recommended that the retired telecom employees be given pension increase, as per rules which remained in vogue during the last 14 years and no amendment in pension rules be made till the receipt of the verdict of the Court." He went on to argue that draft rules were prepared and Notification was issued on 27.1.2011, which is against the law and procedure. The rules were not framed according to policy and Government Notification. According to Section 52 of the Pakistan Telecommunication (Re-organization) Ordinance, 1995, Trust Act, 1882 was applicable to the Trust. He also referred Section 59 of the Ordinance ibid, according to which the Telecommunications Ordinance, 1995 (CIII of 1995) and Ministry of Communications, Government of Pakistan, Notification Nos. 5(4)/95-PTC, dated 7th August, 1995, establishing the Pakistan Telecommunication/Authority and the Frequency Allocation Board were repealed and sub-section (2) of the said Section also provides that the Pakistan Telecommunication Corporation Act, 1991 (XVIII of 1991) shall stand repealed as of the effective date for the Company. Learned counsel then referred Pakistan Telecommunication Act, 1996 and stressed upon sub-section (2) of Section 52 which provides as under:
"52. Application of Trust Act, 1882
(1) ............
(2) For the purposes of the Trust Act, 1882, the "author of the trust" shall be the Federal Government and Company, the "trustees" shall be the trustees appointed under Section 45, "beneficiaries" shall be the Telecommunication employees, the "trust property" or "trust money" shall be the Pension fund, "beneficial interest" shall be the right of the Telecommunication employees specified in the rules made under this Chapter and the "instrument of trust" shall be this Act and such rules."
The learned counsel also emphasized upon Section 3 of Trust Act, 1882, which is reproduced as under:-
"3. Interpretation Clause "Trust".--A "trust" is an obligation annexed to the ownership of property, and rising out of a confidence reposed in and accepted by the owner, or declared and accepted by him for the benefit of another or of another and the owner:-
the person who reposes or declares the confidence is called the "author of the trust": the person who accepts the confidence is called the "trustee": the person whose benefit the confidence is accepted is called the "beneficiary": the subject-matter of the trust is called "trust-property" or "trust money"; the "beneficial interest" or "interest" of the beneficiary is his right against the trustee as owner of the trust-property: and the instrument, if any, by which the trust is declared is called the "instrument of the trust"."
7. According to learned counsel the same has been defined in Section 45 of Ordinance, 1995 and S.R.O 116(I)/1996 dated 7.2.1996 was issued and according to its para 4 "all books, documents, instruments and records pertaining to the assets, properties, rights and liabilities vested in the Trust and the employees transferred to the Trust pursuant to this Order, with effect from the 1st January, 1996, are the property of, and stand transferred to, the Trust."
8. The learned counsel invited the attention towards Trust Deed, which provided that "These Presents" shall mean this Trust Deed and the Rules, schedule and appendix annexed hereto as modified from time to time." Learned counsel also relied upon clause 15 of Rules of Pakistan Telecommunication Corporation (Employees Pension Fund), which reads as under:-
"15. Applicability of changes, modifications or amendments notified by the Federal Government for its employees.
These regulations will stand modified/amended in respect of all such changes, modifications or amendments made by the Federal government for the improvement of pension benefits to its own employees through circulars or notifications or administrative orders issued from time to time."
He further highlighted that Employees Pension Fund was formulated in compliance with Section 45 of Pakistan Telecommunication (Re-organization) Ordinance, 1995 and Court according to clause 17 of Trust Deed, the trustee is bound to comply with and carry out all such directions as may be given to them by the employer from time to time.
9. Learned counsel submits that the impugned notification is against the scheme of Articles 23 and 24 of the Constitution. Reliance in this context is placed on I.A Sharwani and others Vs. Government of Pakistan through Secretary Finance Division, Islamabad
10. Learned counsel for the petitioners further explains that in respect of increase in pension, the respondents had been adopting the rules of Government w.e.f. 1996 to 2009, therefore, they are barred to change the criteria. Reliance is placed on Nazir Ahmad Vs. Pakistan and 11 others (PLD 1970 Supreme Court 453), Government of West Pakistan and another Vs. Dr. A.A Aziz, Medical Superintendent (PLD 1966 Supreme Court 188), Muhammad Zafar Khan Vs. Secretary, Establishment Division, Islamabad and 155 others (1995 SCMR 1840) Messrs RADAKA CORPORATION and others Vs. Collector of Customs and another (1989 SCMR 353), and Pakistan Telecommunication Company Ltd. Vs. Muhammad Zahid and 29 others (2010 SCMR 253).
11. Learned counsel for the petitioners further asserted that petitioners' rights have been protected under Section 36 as well as under sub-section (2) of Section 59 of the Act, 1996. He while referring Section 46 of Pakistan Telecommunication (Re-Organization) Ordinance, 1995; whereby the functions and powers of the trust have been provided emphasized that it is the liability of respondents. To elaborate entitlement of the petitioners, he has relied upon PLD 1976 Supreme Court 6. He was of the view that S.R.O 116 dated 07.2.1996 has not been redundant and same is still continued as is apparent through the resolutions. He explains that even if alternate remedy is available, even then the writ petition is maintainable and in this regard strength was sought from PLD 1961 Supreme Court 119. PLD 1962 Karachi 151, PLD 1978 Karachi 132, 2004 SCMR 400, KLR 2009 CC 302, 2007 PLC (CS) 1244, KLR 2009 CC 325, 2009 AC 758 and (2005 SCMR 678) in order to prove the discrimination, learned counsel for the petitioners has made reliance upon 2010 PLC (C.S) 966. On the point of mala fide he has relied upon Chief Justice of Pakistan Iftikhar Muhammad Chaudhry versus President of Pakistan through Secretary and others, (PLD 2010 Supreme Court 61). Learned counsel also alleged that in appropriate cases, the lapses or wrongs and non quoting in rules etc. can be rectified by the Courts and in this respect reliance was made upon Zaman Cement Company (Pvt.) Ltd. versus Central Board of Revenue and others (2002 SCMR 312) and Dr. Mobashir Hassan and others versus Federation of Pakistan and others (PLD 2010 Supreme Court 265).
12. It is next contended with full vehemence that the rules, could not have been amended without petitioners/beneficiaries, intervention and in this regard he has relied upon Section 36(5) of the Pakistan Telecommunication (Re-Organization) Act, 1996, which reads as under:-
"(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 Corporation shall not alter such pensionary benefits without the consent of the individuals concerned and the award of appropriate compensation."
He, therefore went on to argue that the very requirement of Act has been violated. Reliance was placed on upon 2010 PLC (C.S) 718.
13. According to learned counsel for the petitioners the rules could not be framed without approval of Federal Government and in support of his claim he has referred Section 44 (9) of the Pakistan Telecommunication (Re-organization) Ordinance, 1995 which reads as under:-
"The Board of trustees may with the approval of the Federal Government and by notification in the official Gazette, make rules for the management and conduct of business of the Trust."
That previously rules were made which are called the Pakistan Telecommunication Employees Trust (Investment) Rules, 2003 under S.R.O. 77(KE)/2003 which still hold the field and the same could not be superseded as provided in clause 27 of Trust Deed. Learned counsel further asserted that winding up of the trust has been provided in clause 53 of the Act, 1996 and there is no other procedure for said purpose; that Respondent No. 1 is guarantor of the petitioners.
14. In view of submissions mentioned supra and while relying upon an unreported case i.e. Masood Ahmed Bhatti Vs. Federation of Pakistan etc. (Civil Appeals No. 239 to 241 of 2011) decided on 1.8.2011, by the Hon'ble Supreme Court of Pakistan, it is prayed that the petition may be accepted.
15. Syed Kausar Ali Shah, Advocate, learned counsel for the petitioners in W.P No. 984/2011 (Fazli Malik etc. Vs. Chairman PTCL etc.) while relying upon the case of Masood Ahmed Bhatti as mentioned above adopted the arguments of learned counsel for the petitioners Mr. Khalil-ur-Rehman Abbasi, Advocate.
16. Ch. Mushtaq Hussain Advocate in Writ Petition No. 2372/2011 (Muhammad Anwar Shahid etc. Vs. Federation of Pakistan etc.) pleaded that his petitioners were employees of T&T, therefore, they were departmental employees and they were transferred to Corporation. The definition of employees has been explained in Section 2-E of the Pakistan Telecommunication Corporation Act, 1991 and at that time there was no option but there was compulsion to go into Corporation. Further alleged that no extraordinary benefit was given to the petitioners and the guarantee was given by the Government and counter guarantee was also given by the company. He submits that the pension of the petitioners is to be enhanced according to increase made by the Government. Learned counsel has also relied upon the case of Masood Ahmed Bhatti.
17. Mr. Imran Haider Shah Advocate in W.P. No. 522/2011 (Fida Hussain etc. Federation of Pakistan etc.) while referring Section 11 of Trust Act adopted the arguments advanced by other learned counsel.
18. While repelling the arguments advanced from petitioners' side, S. Naeem Bokhari, Advocate learned counsel representing respondents, on his turn firstly attacked on filing of amended writ petition and asserted that amended petition should not had been filed, rather the petitioners should resorted to file fresh writ petition in view of changed circumstances. Learned counsel read out ground 2 of original writ petition (W.P. No. 148/2011); wherein it has been mentioned that the respondents with mala fide intention has failed to increase the pensionary benefits of the petitioners which is illegal, void and is liable to be set aside. Learned counsel also read relevant portion of ground-4 of original writ petition, wherein it has been alleged that "the Respondent No. 3 should not have issued the impugned order dated 11.8.2010. The said order stands in clear violation to the provision of Section-45 of Pakistan Telecommunication Act, 1996 read with provision of Trust Deed contained in Para-2." He also stressed upon the last lines of ground-7, wherein it has been narrated that "the impugned order issued by Respondent No. 3 is violative of Constitution as well as statutory provision of law and is mala fide on the face of it thus liable to struck off. Mr. Bokhari then referred Notification dated 11.8.2010 to contend that in the original writ petition the same was challenged; that the amendment in the petition was made and the said order was superseded by Notification dated 27.1.2011; whereby increase was given and as soon as the notification dated 27.01.2011 was issued the original writ petition had become infructuous, because a new cause of action had arisen in favour of the petitioners. According to learned counsel since the provisions of C.P.C are applicable to the proceedings of writ petitions and Order VI, Rule 17 of C.P.C. controls the amendments about which plethora of case law is available. Under the law amendment should not be allowed if there is a new cause of action and the relief is sought to be substituted through amendment. Reliance in this regard is placed on Muhammad Hussain Vs. Sani Hussain and 2 others (2000 SCMR 391) Mst. Imam Hussain Vs. Sher Ali Shah and others (1994 SCMR 2293) and Atlantic Steamer's Supply Company Vs. M.V Trustee and others (PLD 1993 Supreme Court 88). It is further added that instead of filing repeated C.Ms and changing the entire complexion of writ petition which was initially against a specific order, the petitioners should have filed fresh petition. Learned counsel further states that all the petitioners have raised question of facts as to when they were employed, in what capacity and when they did retried and what was their entitlement at the time of their retirement and all these questions require recording of evidence, which is job of Court of preliminary jurisdiction and the same is not permissible in Constitutional jurisdiction. He also vigorously contended that the petitioners had adequate remedy of filing civil suit as provided in Section 34 of Trust Act. Learned counsel relied upon Section 56 of Trust Act, which provides that "the beneficiary is entitled to have the intention of the author of the trust specifically executed to the extent of the beneficiary's interest." He further referred Section 61 ibid, which contemplates that "the beneficiary has a right that his trustee shall be compelled to perform any particular act of his duty as such and restrained from committing any contemplated or probable breach of trust." Therefore, learned counsel stresses that in view of these provisions of law, resort to Article-199 of the Constitution is uncalled for. In order to strengthen his contentions, he has placed reliance on an unreported case of Bridg. (R) Muhammad Arbi Khan Vs. Federation of Pakistan etc. dated 30.1.2002 passed in Writ Petition No. 1165 of 1999 by the Lahore High Court, Lahore
"(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."
Whether the Board of Trustees is bound to match the Government increase of its retirees, he explains that there is no provision in the statutes to match the increases. While referring sub-section (3) of Section 36 ibid, he states that the same is limited to those who exercised the option available to them under Section 36(3) of the Act, 1996 and in this regard he has heavily relied upon Ejaz Ali Bughti Vs. P.T.C.L and others (2011 SCMR 333). Reliance has also been placed on Pakistan Telecommunication Co. Ltd through Chairman Vs. Iqbal Nasir and others (PLD 2011 Supreme Court 132) and the case of Pakistan Telecommunication Company Ltd. Vs. Muhammad Zahid and 29 others (2010 SCMR 253).
19. While referring the case of Masood Ahmed Bhatti as heavily relied upon by the opponent side, he maintained that the petitioners in that matters were in service. The Pakistan Telecommunication Employees Trust (PTET) is not performing any functions in connections with the affairs of the Federation nor is a local authority. Neither PTET nor its Managing Director is amenable to the extraordinary writ jurisdiction. Moreover, the said judgment is under review; that in PTCL, Voluntary Separation Scheme (VSS) was introduced and 29873 employees took premature retirement and they had to pay an amount of Rs. 46-Billion. That if the increases are made according to increase made by the Government, the company shall be liquidated; that it is not a discrimination. There is no bar on the board of trustees that they must compete with the Federal Government. By the dint of above submissions, it is prayed that the petitions be»dismissed.
20. In rebuttal Mr. Khalil ur Rehman Abbasi, Advocate maintained that the petitioners have given all the details i.e. date of their appointments and date of retirement etc. and so much so they have attached the documents of pension and presumption of truth is attached to the same; that civil suit cannot be filed as agitated by other counsel inasmuch as Section 34 of the Trust Act is regarding dispute amongst trustees; that categories have been made against Section 2-S of the Act, 1996.
21. Ch. Mushtaq Hussain Advocate, in rebuttal, further added that petitioners were employees of T&T and they only received pension and no other benefits were received by them. That no employee of Corporation has been retried; that no factual controversy is involved in this case, therefore, the instant petitions are very well competent before this Court.
22. I have heard the learned counsel for the parties at length, surveyed the documents appended with these petitions meticulously, studied the provisions of Pakistan Telecommunication (Re-organization) Act, 1992 and attended their rival submissions very carefully.
23. The claim of the petitioners, in brief, is that basically they were employees of Pakistan T&T Department, thereafter they were transferred to Pakistan Telecommunication Corporation and further to Pakistan Telecommunication Company Ltd. and after their retirement, their pension is to be enhanced according to increase as made by the Government. Previously, the pension had been increasing according to Government Notifications till June, 2010, but thereafter in complete departure from previous practice, the pension etc. are not being increased as per Government notifications.
24. The Pakistan
25. The first attack of the learned counsel for the respondents was that the instant petition (W.P. No. 148 of 2011) is not maintainable on account of filing of amended writ petition, wherein certain changes were made therein. I am unable to see eye to eye with the learned counsel for the respondents for the simple reason that the writ petition was filed on 20.1.2011; whereas the impugned Notification was issued on 27.1.2011, therefore, when at the time of filing of writ petition, the impugned Notification was not in existence, therefore, the petitioners could not challenge the same and they have filed amended petition and challenged it after getting permission from the Court. The application for seeking permission to amend the petition was allowed on 04.2.2011 and at that time, Respondents No. 2 and 3 had not put their appearance. Since the respondents have filed report and para-wise comments to the amended writ petition, therefore, no prejudice was caused to the respondents due to filing of amended writ petition. In the, original writ petition the petitioners had prayed for the grant of pensionary benefits in accordance with Government notifications and after amendment the claim of the petitioners remained the same and thus the very complexion of the writ petition was not changed through the amendment. Since the Notification dated 27.1.2011 was issued during pendency of writ petition, therefore, the proposed amendment was rightly allowed by the Court and no fresh cause of action had accrued in favour of the petitioners. For the sake of arguments, if certain other Notifications are issued during the pendency of writ petition, then whether the petitioners would be compelled to file fresh writ petition, the answer is in the negative, therefore, the objection raised does not appeal to mind. Moreover, in two other Writ Petitions i.e. No. 984/2011 and 522/2011, the petitioners have directly challenged the Notification dated 27.1.2011 without filing any amended writ petition. In view of this scenario, the objection of learned counsel for the respondents regarding filing of amended writ petition holds no water.
26. Now adverting to merits of the case. Indubitably, before 1st July, 2010, the petitioners had been receiving the pension etc. according to increases made by the Government from time to time. Respondents No. 2 and 3 (W.P No. 148/2011) in their amended report and para-wise comments, in reply to ground-7 of the amended Writ Petition No. 148/2011 have admitted this fact in the following words:-
"In previous years, the Board of Trustees did grant increases in pension."
In the year 2009, Government of Pakistan increased pension @ of 20% and 15% and O.M No. F.4 (1)-Reg-6/2009 dated 13.7.2009 was issued. In pursuant to said increase, Pakistan Telecommunication Employees Trust, Board of Trustees while referring to the above notification of Government approved the pension of pensioners at the same rate through Letter No. PTET/Pen-increase/2009 dated 17.7.2009 and the directions were also issued to all the Postmasters in Pakistan
27. The employees of Pakistan Telecommunication Corporation were to be transferred to Company (PTCL) or other organizations under Section 35 of the Pakistan Telecommunication (Re-organization) Ordinance, 1995. While promulgating Pakistan Telecommunication (Re-Organization) Act, 1996, a proviso to sub-section (2) of Section 35 was also inserted. The same is of wider import, which runs as under:-
"Provided that such order shall not vary the terms and conditions of service of such employees to their disadvantage."
Section 36 of the Ordinance, 1995 is also very imperative. It will be instructive to re-produce the said section which reads as under:-
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 Employees shall not be altered adversely by the Company except in accordance with the laws of Pakistan
(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 Employees, 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) On transfer of a Transferred Employee under sub-section (3), the Federal government shall assume responsibility of or his pensionary benefits without recourse to the Pension Fund referred to in Section 45(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 individual concerned and the award of appropriate compensation.
28. The situation which crystallizes from the above quoted provisions of law is that the terms and conditions of service of employees could not be varied to their disadvantage, the same could not be altered adversely by the Company without consent of the employees and sub-section (5) of Section 36 further stresses that the Company could not alter pensionary benefits without the consent of the individuals. It also manifests from the above provisions that the Federal Government has guaranteed the existing terms and conditions of service and rights including pensionary benefits of the employees and the Federal Government has also assumed the responsibility of pensionary benefits of employees. It is not the case of the respondents that before taking the impugned action, they had ever consulted the pensioners. The same can be termed as disadvantage. It is crystal clear that the impugned action is illegal and flagrant violation of provisions of Act, 1996. It is also against the principle of "A communi observantia non est recedendum" (where a thing provided to be done in a particular manner that must be done in that manner and not other than that). The Hon'ble Supreme Court of Pakistan in the matter of: HUMAN RIGHTS CASES NOS. 4668 OF 2006, 1111 OF 2007 and 15283-G of 2010 has held that "Things are required to be done strictly according to law, or it should not be done at all".
29. In view of Section 44 of the Ordinance, 1995, a Trust was created through Notification No. 5(3)/93-PTC dated 03.1.1996. Section 45 of the Ordinance, 1995 provides that all the assets of the Pakistan Telecommunication Corporation Employees Pension Fund was to be the assets and liabilities of the Trust and under sub-section (2) the Company was to contribute. Learned counsel for respondents has laid much emphasis on sub-section (1)(d) and sub-section (2)(a) of Section 46 of the Ordinance, 1995, which provides that:
46. Functions and powers of the Trust:
(1)
a
b
c
d. make provision for the payment of pensions to Telecommunication employees to the extent of entitlement.
2. In performance of its functions, the Board of Trustees shall--
a) have the exclusive right to determine the amounts, if any, payable in respect of pension benefits to the telecommunication employees;
In view of above provisions of law although some powers have been vested to the Board of Trustees in respect of pension, but keeping in view the above provisions of law where the rights of employees and even pensionary benefits have been protected, no rules or provisions can be made by the Board of Trustees against the employees/pensioners except their intervention as laid down in above sections. Under the garb of said provisions, the Board cannot be allowed to take away the legal right of the pensioners. It can be said without fear of contradiction that it was the clear legal right rather, recognized statutory right of the petitioners that they should have been treated strictly in accordance with provisions of Pakistan Telecommunication (Re-organization) Act, 1996, but it was not done so. Therefore, the impugned notifications were issued illegally and the same are inequitable and violative of the provisions of Pakistan Telecommunication (Re-organization) Act, 1996.
30. Another aspect of the case which has engaged the attention of the Court is Trust deed dated 2.4.1994. Clause 2 of Trust Deed clearly provides that "All departmental employees transferred to the Corporation as defined in Section 9 of the Pakistan Telecommunication Corporation Act, 1991 shall be entitled to benefits as defined under the Federal Government Pension Rules as applicable to such employees before the formation of PTC. The above clause clearly provides that the petitioners are entitled to increase in pension as made by the Government. The learned counsel for the respondents while denying the existence of trust deed stressed upon sub-section (2) of Section 53 of the Act, 1996, wherein it has been mentioned that "instrument of trust" shall be this Act and such rules. Suffice it to say that the learned counsel for the respondents could not point out any provision of Pakistan Telecommunication (Re-organization) Ordinance, 1995 or Pakistan Telecommunication (Re-organization) Act, 1996 to prove that trust deed has been superseded, rather in Section 59 of the Act, 1996, the previous enactments were repealed and there is no mention in the said section that Trust Deed had also been superseded.
31. Learned counsel for the respondents has also raised objection on maintainability of these petitions on account that the respondents are not amenable to writ jurisdiction and the rules are non-statutory. The petitioners in addition to other reliefs have also challenged the draft rules. The draft rules cannot be challenged before any other forum except in constitutional jurisdiction. As regards statutory or non-statutory rules, there is an unreported recent classic judgment dated 11.8.2011 of The Hon'ble Supreme Court of Pakistan erstwhile in the case of Masood Ahmed Bhatti Vs. Federation of Pakistan etc. (passed in CA 239/2011 to CA 241/2011) wherein while dilating upon the different propositions of P.T.C.L, the Apex Court accepted the appeals of employees. The dispute in said appeals as mentioned in Para No. 2 of the esteemed judgment was inter alia pensionary benefits, promotion and voluntary separation scheme and ratio deducible from the above venerated judgment is that the employees of T & T and Pakistan Telecommunication Corporation could knock the portal of High Court. In the said judgment the case of Ejaz Ali Bughti Vs. P.T.C.L and others (2011 SCMR 333) was also discussed. As far as the case of Pakistan Telecommunication Co. Ltd. through Chairman Vs. Iqbal Nasir and others (PLD 2011 Supreme Court 132 is concerned, in view of Masood Ahmed Bhatti's case and as the dispute of pension was not involved in the case of Iqbal Nasir, so the facts and circumstances of said case are poles apart to that of the matter in issue of the instant matter.
32. It is also claim of the respondents that the petitioners have raised some question of facts and some factual controversy is involved in the instant matter, which cannot be resolved in constitutional jurisdiction. This contention of respondents has no legs to stand, inasmuch as there is no need to see that when the petitioners were appointed and when they did retired, because it has to be seen whether the impugned notifications were in accordance with law or not. It has not been denied by the respondents that the petitioners were not the pensioners. It is settled law that where material facts are admitted by the respondents High Court can interfere. Reliance in this regard is placed on Pakistan Defence Officers Housing Authority, Karachi
33. As far as alternate remedy is concerned, learned counsel for respondents has relied upon Section 34 of the Trust Act, 1882. It would be advantageous to re-produce Section 34 ibid for reference:-
"Right to apply to Court for opinion in management of trust-property. Any trustee may, without instituting a suit apply by petition to a principal Civil Court of original jurisdiction for its opinion, advice or direction on any present questions respecting management or administration of the trust-property other than questions of detail, difficulty or importance, not proper in the opinion of the Court for summary disposal."
The above provision of Trust Act clearly demonstrates that a trustee can approach Civil Court
Impugned act of statutory functionary being mala fide--Alternate remedy, availability of--Effect--Availability of alternate remedy would not bar jurisdiction of High Court to entertain constitutional petition
34. As regards the setting aside of draft rules are concerned, it appears that the same have not yet been approved by the Federal Government. Before approval of Federal Government the same have no value in the eye of law. The Federal Government may accept or may not, hence before approval, the same cannot be set aside. Even the Federal Government is bound to look into that whether the rules approved by the Board of Trustees are in accordance provisions of law as embodied in Pakistan Telecommunication (Re-organization) Act, 1996 or not. Therefore, it appears expedient that a copy of this judgment be sent to Ministry of information and Technology as well as Ministry of Law with the direction to look into that the proposed rules sent by the PTET are in accordance with Pakistan Telecommunication (Re-organization) Act, 1996 or not.
35. In view of circumstances enumerated above, all the above mentioned four constitutional petitions are accepted in the terms that Pakistan Telecommunication Employees Trust is directed to pay the pension etc. to the petitioners according to increase made by the Government alongwith arrears if any.
(R.A.) Petitions accepted
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