PLJ 2013 Islamabad 171
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,
1973, Art. 199--Employees of Pakistan T&T Department--Pensionary
benefits--Terms and conditions of pensionary benefits cannot be altered or
modified--Notification for not paying increase in pension and medical allowance
to petitioners--Challenged validity of notification--Basically they were
employees of P.T.T.D. thereafter were transferred to PTCL--After their
retirement pension is to be enhanced to increase as made by Government--All
employees of T&T Department, who were called departmental employees of
corporation--Assets and liabilities were transferred to corporation--When at
time of filing of writ petition, the notification was not in existence,
therefore, petitioners could not challenge and they had filed amended petition
and challenged it after getting permission from the Court--No prejudice was
caused due to filing of amended writ petition--Since notification was issued
during pendency of writ petition, therefore, proposed amendment was allowed by
the Court and no fresh cause of action had accrued--If other notifications were
issued during pendency of writ petition, then whether petitioners would be
compelled to file fresh writ petition--Terms and conditions of service
employees could not be varied to disadvantage, same could not be altered
adversely by company without consent of employees that company could not alter
pensionary benefits without consent of individuals--Federal Government had
guaranteed existing terms and conditions of service and rights including
pensionary benefits of employees and Federal Government had assumed
responsibility of pensionary benefits of employees--Although same powers had
been vested to Board of Trustees in respect of pension but where rights of
employees and even pensionary benefits had been protected, no rules can be made
by Board of Trustees against employees/pensioners except intervention--Board
cannot be allowed to take away legal right of pensioners--Impugned
notifications were issued illegally and same were inequitable and violate of
provision of Act, 1996--Petitions were accepted. [Pp. 182, 183, 186 & 187] A, B, C, D, E, F, G & H
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 in respect of management of
trust property and there was no mention that beneficiary can approach to Civil Court for
redress of grievance--High Court had jurisdiction to interfere in the matter. [P. 189] J
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
Telecommunication Employees Trust was established, which can sue and to be sued
by its name. In compliance with the provisions of Section-44 of the Pakistan
Telecommunication (Re-organization) Act, 1996, Respondent No. 2 was
established. It is averred that the petitioners were retired from the office of
Pakistan Telecommunication Limited Company and their pensions were fixed by the
Director Pension, PTCL Accounts as per Government Rules and thereafter pension
had been increased in accordance with increase made by the Government from time
to time. On 11.8.2010, Respondent No. 3 issued a letter in which a direction
has been issued to all Post Masters throughout Pakistan for not paying increases
in pension and medical allowance to pensioners until the same is approved by
Respondent No. 2. Thus in the original writ petition the petitioners have
challenged the said Notification on the ground that the same was illegal, void,
unlawful and issued without lawful authority being violative of Pakistan
Telecommunication (Re-organization) Act, 1996. It was further prayed that the
respondents be directed to pay and reimburse the increase pensionary benefits
to the petitioners as envisaged in government notification dated 5th July 2010
w.e.f 1st July, 2010. Thereafter, the petitioners filed CM No. 282 of 2011 for
grant of permission to amend the writ petition by contending that after
issuance of notice Respondent No. 2 had issued Notification No.
Pen/PTET/LHR/1110 dated 27.1.2011 with malafide intention and sought certain
amendments in the writ petition. The said application was allowed on 04.2.2011
and consequently the petitioners have submitted amended writ petition; whereby
they have also challenged the validity/propriety of Notification dated
27.1.2011 and Letter No. PTET/P-R/2010-11 dated 20.1.2011 and draft rules as
well with the prayer that the same may be declared as illegal, void and without
any lawful authority.
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
(1991 SCMR 1041). He laid much emphasis that it is a sheer discrimination
inasmuch the pensioners who had been retired before 01.01.199§ has been granted
pension increase @ 20% and who retired after 01.01.1996 @ 8%.
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. It is next
contended that the petitioners have heavily relied upon the trust deed as well
as rules of Pakistan Telecommunication Corporation employees Pension Fund, but
the trust has been superseded by the instrument of Trust, which is the Act of
1996. Learned counsel while referring Section 52(2) of Pakistan
Telecommunication (Re-organization) Act, 1996 emphasized that according to said
section "instrument of trust" shall be this Act and such rules; that
the alteration can be made through legislation and not by the trustees. Further
asserted that this is a trust and rules attached to the trust is not statutory
nature but those are nature of contract of trustee and beneficiary in case of
violation could not invoke the jurisdiction provided under Article 199 of the
Constitution. None of the petitioners are employees but are retirees; that
various matters went before the Hon'ble Supreme Court of Pakistan in which one
of the question raised was whether rules of P.T.C.L were statutory or otherwise
and now law is completely set that employees can invoke the jurisdiction of
this Court if rules are statutory. He further asserted that according to
Section 36 of the Act, 1996, only Federal Government is restricted to the
guarantee. He explains that sub-section (5) of Section 36 ibid is a key section
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 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 Telecommunication
has cheqeured history. Initially, Telegraph and Telephone Department was
functioning. In the year 1990, the President of the Islamic Republic of
Pakistan made and promulgated the Pakistan Telecommunication Corporation
Ordinance, 1991 establishing the Pakistan Telecommunication Corporation.
Subsequently, in the year 1991, the Pakistan Telecommunication Corporation Act,
1991 (Act No. XVIII of 1991) was introduced. By virtue of Section-9 of the Act,
1991, all the employees of Telegraph and Telephone Department, who were called
departmental employees stood transferred in the Corporation and became
employees of the Corporation. Further in view of Section 12 of the said Act all
the assets and liabilities of Telegraph and Telephone Department were also
transferred to the Corporation. Thereafter, the Pakistan Telecommunication
(Re-organization) Ordinance, 1996 came into existence and then while repealing
all the previous enactments (vide Section 59) on the subject, the Pakistan
Telecommunication (Re-organization) Act, 1996 was promulgated. By virtue of
this Act, certain other organizations were also created including Pakistan
Telecommunication Company Ltd. Section 34 of the Act, 1996 provides that as
soon as may be, after the commencement of Act, the Federal Government shall
establish a company to be known as the Pakistan Telecommunication Company,
Limited and caused it to be incorporated under the Companies Ordinance, 1984.
Under Section 35 of the Act, 1996, Federal Government was empowered to transfer
the rights, property and liability of the Corporation to the Company or other
organizations and proviso of sub-section (2) of Section 35 provides that such
order shall not vary the terms and conditions of service of such employees to
their disadvantages. Under sub-section (2) of Section 36 of the Act, the terms
and conditions of the service of any transferred employee could not be altered.
In view of Section 44 of the Act, Federal Government was authorized to
establish a Trust, which was stated to be Corporate body having perpetual
succession and a common seal with power to acquire and hold property and can
sue and be sued by its name. Under Section 45 of the Act, all assets of the
Pakistan Telecommunication Corporation Employees Pension Fund, after Notification
by the Government was to be assets and liability of the Trust.
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
through Letter No. Pen/PTET/LHR/Misc/5085 dated 21.7.2009. Before this the
pension had been increasing according to increase made by the Government and in
this regard the petitioners have placed on file certain other letters. The
claim put forth by the respondents for not increasing the pension is that huge
budget is involved and it would amount to liquidate the PTCL. PTCL is earning
huge amounts from the country and under the Act, 1996 and rules, it is duty
bound to increase the pension. For the sake of arguments if the company is
liquidated, even then, the Federal Government is duty bound to pay the pension
to the pensioners. The purpose of creation of Trust was to facilitate and given
benefit to the pensioners but surprisingly the Trust is looking after the
interests of Company. It was the duty of the trust to act in accordance with
law, without fear, favour and nepotism.
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
or with the consent of the Transferred Employees and the award of appropriate
compensation.
(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 versus Shamim Khan through L.Rs. and
5 others (PLD 2005 Supreme Court 792). In the instant case, pure legal
questions are involved, which do not require recording of any evidence.
Therefore, the objection raised by the learned counsel for the respondents is
untenable.
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 in
respect of management of trust property and there is no mention that a
beneficiary can also approach to civil Court for redress of his grievance. Even
in case of malafide, this Court has jurisdiction to interfere in the matter.
Reliance in this regard is placed on the case of Muslimabad Cooperative Housing
Society Ltd. through Secretary versus Mrs. Siddiqa Faiz and others PLD 2008
Supreme Court 135, wherein the Hon'ble Supreme Court of Pakistan laid down this
principle. The operative para of the esteemed judgment is re-produced as under:
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
