2013 P L C 345

[Peshawar High Court]

Before Dost Muhammad Khan, C.J. and Mrs. Irshad Qaiser, J

PAKISTAN TELECOMMUNICATIONS COMPANY LTD. through President and 5

others

Versus

AZHAR ALI BABAR and 2 others

Writ Petitions Nos.223 to 251 and 890 to 898 of 2011, decided on 11th September, 2012.

(a) Industrial Relations Ordinance (XCI of 2002)---

----Ss. 46 & 50(3)---Industrial and Commercial Employment (Standing Orders) Ordinance

(VI of 1968), S.2(b)(i)---Constitution of Pakistan, Art.199---Constitutional petition---Option
for Voluntary Separation Scheme---Withholding of payment of commutation and monthly
allowance--- Grievance petition--- Jurisdiction of Labour Court---Scope-Employer company
launched a Voluntary Separation Scheme, and employees who availed that option/offer, were
paid some amount on. account of severance pay etc., but the payment of commutation and
monthly allowance were withheld by the employer company---Grievance petition filed by the
employees was accepted by the Labour Court which was upheld by the Labour Appellate
Tribunal---Counsel for the employer raised objection' that Labour Court had no jurisdiction
to entertain the grievance petition as the employees were not workmen and the employer
company was not Commercial Establishment---Employer company, had come within the
definition of industry as well as Commercial Establishrnent as per definition under S.2(b)(i)
of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, as it had hired
the services of their employees to do skilled, unskilled, manual as well as clerical work---
Since in the present case, the employees had been deprived of the emoluments and pensions
etc., they had rightly knocked the doors of Labour Court being workmen---Grievance
petitions involved both factual and legal controversies, Labour Court, after conducting
proper trial and giving full opportunities to both the parties to produce pro and contra
evidence, decided the matter on its own merits both on facts and law---Employees had
suffered a lot, both financially and physically, for the acts of the others---Labour Court and
Labour Appellate Tribunal, in circumstance, had rightly exercised the authority vested in
them by legal provisions of law---Constitutional petition was dismissed.

Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602 and 1999 SCMR
467 rel.
(b) Industrial Relations Ordinance (XCI of 2002)---

--Ss. 46 & 53(3)---Pakistan Telecommunication Corporation Act (XVIII of 1991), Ss.2(e), 3 & 9-
--Constitution of Pakistan, Art.199---Constitutional petition---Voluntary Separation Scheme-
Right of pensionary benefits---Calculation of period---Grievance petition

Employer company launched a Voluntary Separation Scheme, wherein 20 years of service

was required for pensionary benefits---Scheme provided that date of appointment of the
employees was to be considered as the date of their initial appointment---Employees who
availed said offer, were paid some amount on account of severance pay etc., while the
payment of commutation and monthly allowance were withheld, because the payment was
calculated from the date of completion of their training, 'instead of initial appointment---
Employees had prayed that their services for the purpose of pensionary benefits were to be
calculated from the date of their initial appointment and not from the date of their training---
Both, the Labour Court and Labour Appellate Tribunal accepted the claim of the employees--
--Validity---Record showed that the benefit of initial appointment and pre-training were
extended to some of the employees which had caused discrimination and injustice to the
aggrieved employees---Employee would begin his service from the date of assumption of
charge of the office to which he had been appointed---Training should be part and parcel of
the service---Benefit of pre-training service be given to employees, and it should be counted
for calculating their monthly pension---Both the Labour Court and Appellate Court had
rightly found that employees were entitled to the pensionary benefit from the date of their
joining service, and not from the date of their regularization after training which was also
part and parcel of their service---Employees, in circumstances, were discriminated against
with regard to the calculation of their length of service---Constitutional petition was
dismissed.

I.A. Sharwani and others v, Government of Pakistan through Secretary, Finance Division,
Islamabad and others 1991 SCMR 1041; 2006 PLC (C.S.) 236; 1998 PLC (C.S.) 736; 2010
PLC (C.S.) 668 and 2010 PLC (Labour) 354 rel.

Waqar Ahmad Khan for Petitioners.

Ijaz Anwar Khan for Respondents.

Date of hearing: 11th September, 2012.

JUDGMENT

MRS. IRSHAD QAISER, J.--- This judgment shall dispose of Writ Petitions Nos.224, 225,
226, 227, 228, 229, 230, 231, 232, 233, 234, 235,236, 237, 238, 239, 240, 241, 242, 243, 244,
245, 246, 247, 248, 249, 250, 251 of 2011 and 890, 891, 892, 893, 894, 895,896, 897, 898 of
2011 as common question of law and facts are involved and all these writ petitions have been
filed to call in question the judgments and orders dated 1-11-2010 and 20-12-2010 passed by
Labour Appellate Tribunal, Khyber Pakhtunkwa, Peshawar, whereby appeals of petitioners
were dismissed. Through these writ petitions, petitioners have asked for the issuance of
appropriate writ for certiorari declaring the impugned judgments and orders dated 1-11-2010
and 20-12-2010 of Labour Appellate Tribunal illegal, unlawful, void ab initio and that the
same may be set aside.

2. Brief facts of the case are that the respondents/employees mentioned in the above noted
writ petitions had filed grievance petitions under section 46 of the Industrial Relation
Ordinance, 2002 against the Pakistan Telecommunication Company Limited on the ground
that they (i.e. respondents) were denied the right of pensionary benefits and resultant
commutation thereof under the Voluntary Separation Scheme in spite of the fact that they have
rendered continuous and uninterrupted service for more than 20 years. That PTCL launched a
Voluntary Separation Scheme (VSS) wherein 20 years of service was required for pensionary
benefits and to that effect letters were issued to the employees for exercising option. That
according to the offer of Voluntary Separation Scheme the date of appointment of respondents
was considered as the data of their initial appointment. They availed the option which was
accepted and some amount on account of severance pay etc was given while the payment of
commutation and monthly allowance were withheld/denied, because the payment was calculated
from the date of completion of their training instead of initial appointment. Through the
Grievance petition filed in Labour Courts they prayed that their services for the purpose of
pensionary benefits are to be calculated from the date of their initial appointment. Respondents/
petitioners contested the petition alleging that the pension benefit are to be calculated from the
date of their regularization in to service i.e. from the date of qualifying training and not from the
date of their initial appointment.

3. After hearing the arguments, the learned Labour Court accepted the petitions vide judgments
and orders dated 30-4-2010, 9-10-2010 and 18-12-2010. Against above orders petitioners/PTCL
filed appeals before the Labour Appellate Tribunal under sections 50(3) of the Industrial
Relations Ordinance, 2002 which was also dismissed vide impugned judgments and orders dated
1-11-2010 and 20-12-2010.

4. Feeling aggrieved from the orders of Labour Appellate Tribunal, petitioners filed present writ
petitions on the ground that the impugned orders are without jurisdiction and improper. That
tribunal failed to appreciate the fact that respondents employees have no right to invoke the
jurisdiction of Labour Court. That they have received their benefits under the Voluntary
Separation Scheme after final settlement of their dues and had ceased to be aggrieved persons.
That as per rules of PTCL, length of service of the employees will be considered as regular
employees of the department for the purpose of pension and other benefits from the date of
completion of their training/course and not from the date of initial joining/start of service.

5. We have heard learned counsel for the parties and perused the entire record and the relevant
laws on the subject.

6. The first objection raised by counsel for petitioners is that Labour Courts have no jurisdiction
to entertain the Grievance petitions filed by respondents. Now it is to be seen whether Labour
Court has jurisdiction to grant relief to the aggrieved employees of PTCL or not? To settle this
question that whether PTCL is a commercial establishment whether the present employees,
respondents come in the purview of the definitions of workman or not? For proper assistance the
definitions of Commercial Establishment and Workman, given in sections 2(b) and 2(1) of the
Industrial and Employment (Standing Orders) Ordinance, 1968 is reproduced as under:---

'2(b) "commercial establishment" means an establishment in which the business of

 advertising, commission or forwarding is conducted, or which is a commercial agency
and includes a clerical department of a factory or of any industrial or commercial
undertaking, the office establishment of a person who for the purpose of fulfilling a
contract with the owner of any commercial establishment or industrial establishment,
employs workmen, a unit of a joint stock company, an insurance company, a banking
company or a bank, a broker's office or stock exchange, a club, a hotel, a restaurant or an
eating house, a Cinema or theatre, and such other establishment or class thereof, as
Government may, by notification in the official Gazette, declare to be a commercial
establishment for the purpose of the Ordinance;"

"2(1) workman.-- means any person employed in any industrial or commercial

establishment to do any skilled or unskilled, manual or clerical work for hire or reward"

PTCL comes within the definition of Industrial as well as commercial establishment. It has hired
the services of their employees to do skilled, unskilled, manual as well as clerical work. Record
shows that the petitioners/PTCL authority itself assailed the order of Labour Courts before the
Labour Appellate Tribunal by invoking its rights under section 50(3) of Industrial Relation
Ordinance, 2002 wherein the jurisdiction of Labour Court was not challenged and when relief
claimed was refused, the present writ petition was filed and challenged the orders of Labour
Appellate Tribunal. Moreover the law on this issue is also laid down by august Supreme Court in
case title "Muhammad Mubeen-us-Salam v. Federation of Pakistan PLD 2006 SC 602, vide
which the appeals filed by/on behalf of PTCL etc. stood abated and they were directed to seek
their respective remedy from competent Courts of law.

7. Since in the present case the respondents have been deprived of the emoluments and pensions
etc. when the employer company/ petitioners on introduction of Voluntary Separation Scheme
and the employees having opted for the same, while settling their account did not count their
pre-training period of service in their total length of service, therefore, for getting relief they
have rightly knocked the doors of Labour Courts being workman as defined in Industrial
Relation Ordinance, 2002 (I.R.O. 2002). Subsection (3) of section 46 of Industrial Relation
Ordinance, 2002 provides for adjudication and determination of the grievance of worker by
Labour Court which has been replaced by Industrial Relation Act, 2008. Section 41 whereof
also provide for determination and adjudication of a grievance of worker(s) by Labour Court.
Moreover since the grievance petitioners involved both factual and legal controversies,
therefore, the Labour Court, after conducting proper trial and giving full opportunities to
both the parties to produce pro and contra evidence decided the matter on its own merits both
on facts and law. Reference in this respect is made to 1999 SCMR 467.

8. As discussed hereinafter the respondents have suffered a lot both financially and physical
for the acts of the others, therefore, keeping in view the above facts and circumstances of the
case we have no hesitation to say that Labour Courts and Labour Appellate Tribunal having
rightly exercised the authority vested in them by the aforementioned legal provisions of law.

9. Now the other main question for determination is that whether the pre-training service
period of the employees of the petitioners company who had opted to severe their relations
with the employer under Voluntary Separation Scheme, hereinafter called as VSS, has to be
counted towards their pensionary benefits or it is to be considered from the date of qualifying
training.

10. Admittedly uptil 1991 respondents were employees of the erstwhile Pakistan Telegraph
and Telephone Department. Later on they became employees of Pakistan Telecom
Corporation (i.e. PTC) and afterward PTCL. Each one of them had sufficient length of
service at their credit and they have given the detail in their respective petitions.

11. It is not disputed that prior to the establishment of Pakistan Telecommunication

Corporation under the PTC Act, 1991 the respondents were civil servants. At that time (prior
to 1991) the respondents were governed by various rules and regulations governing the
services of civil servants. The Civil Servants (Appointment, Promotion and Transfer) Rules,
1973 provide the terms and conditions of the civil 'servants.

12. In 1991, the PTC Act was legislated by the parliament, in which by virtue of section 3 of
the PTC Act the corporation was established and it also contained provisions in respect of the
employee of T&T Department such as the present respondents. These employees were
referred to as "Departmental Employees" as defined in section 2(e) of PTC Act. Section 9 of
the PTC Act expressly stipulated that "notwithstanding anything contained in any law,
contract or agreement, or in the condition of service, all departmental employees shall, on the
establishment of the corporation, stand transferred to, and become employees of the
corporation on the same terms and conditions to which they are entitled immediately before
such transfer" and under subsection (2) of section 9 the corporation was not to vary the terms
and conditions of service of such person to their disadvantages. Thereafter the Pakistan
Telecommunication Corporation (Reorganization) Act, 1996 was passed wherein certain
provisions relating to "telecommunication employees" were incorporated. This term
"employees" has been defined in section 2(t) of the Re-organization Act. It means such
employee of the corporation who are transferred to the employment of the company under
this Act other than these to whom subsection (3) of section 36 applies. The proviso of section
35(2) of Re-organization Act provides the terms and conditions of the employees. By virtue
of this. proviso, PTCL had no power to "vary the terms and conditions of service" of the
employees who were previously employees of the corporation, to their disadvantage".
Section 36(2) of the Reorganization also gives protection to the terms and conditions of
service of employees such as the respondents who stand transferred from the corporation to
PTCL on 1-1-1996. Their terms and conditions of service cannot be altered adversely by
PTCL "except in accordance with the law of the Pakistan or with the consent of the
transferred employees the award of appropriate compensation When this legal provision is
read together with section 35, it become clear that by operation of the Re-organization Act,
the terms and conditions of service of respondents as on 1-1-1996 stood conferred on them as
vested rights under the said law.

13. In the present case the petitioners have neither denied the joining of service. of the
respondent of T&T department before transfer of PTCL nor the length of service was
disputed but their main contention is that as per rules of PTCL department all persons will be
considered as regular employees of the department for the purpose of pensionary and other
benefit from the date of the completion of their training/course. No such rules and law had
been produced. As against this the respondents produced and exhibited different letters
including letter, dated 1-6-1995 and 29-6-2005 clearly indicates that the intervening period
between the appointment and training shall be treated as duty.

14. Keeping in view the above legal and factual discussion we are of the opinion that the
above noted alleged rules, if any, are against the terms and condition of the employees as
well as against the principle laid-down by constitution. It appears from the record that
Voluntary Separation Scheme was introduced by the petitioner/PTCL and the same was
offered to the respondent. According to the offer of Voluntary Separation Scheme the date of
appointment of respondents was considered as the date of their initial appointment but the
payment was calculated and made from the date of completion of their training and thus they
were deprived without any justification from their pension and other benefit. During trial,
statements of officials of PTCL were recorded as RWs. RW2 Saddidullah, Assistant
Manager, Manpower and Planning PTCL Head Quarter, Islamabad had clearly admitted it
correct that in the first offer letter of Voluntary Separation Scheme the pension of the
pensioners were calculated and the date of joining service was mentioned before training. He
also admitted that when the Voluntary Separation Scheme package was offered the letter
dated 1-6-1995 was in the field. He further admitted that there were more than 30000
employees and there is possibility of human's error. According to the contents of above letter
the intervening period between the appointment and the training was treated as duty. It is
also on record that the benefit of initial appointment and pre-training were extended to some
of the employees. This also caused great discrimination and injustice to the, aggrieved
employees. It may at this juncture be mentioned that in a case titled "I.A. Sharwani and
others v. Government of Pakistan through Secretary,' Finance Division, Islamabad and others
1991 SCMR 1041 the Hon'ble Supreme Court of Pakistan in the said elaborated judgment
highlighted the conception of pension after considering number of precedents, encyclopedia
etc and calculated "A pension is intended to assist a retired person in providing for his daily
wants so long he is alive in consideration of his past service". In this case Article 25 of
Constitution was also considered the substance of which is that a pensioner may have a
legitimate grievance if he is not treated alike with the other pensioners and the one who is
deprived of same benefit which is being given to other it would be violation of Article 25 of
Constitution. It is repeatedly held by Superior Courts, that by depriving employees of their
emoluments besides other service benefits etc apparently amounts to have been grossly
violated as against the guaranteed rights under Articles 2-A, 4, 25 and 27 of Constitution of
Islamic Republic of Pakistan 1973."

15. It is also the consistent view of the superior Courts that for giving benefit to employees
even the period of service of Daily Wages and ad hoc appointment was also counted and
taken into consideration for calculation of pensionary benefits. Provided there is no break in
service. Reference is made to 2006 PLC (C.S.) 236, 1998, PLC (C.S.) 736. It is settled law
that an employ begins his service from the date of assumption of charge of the office to
which he has been appointed. Training is and should be part and parcel of the service. The
benefit of pre-training service be given to employees and it should be countable for calculating
their monthly pension. Reference is made to'2010 PLC (C:S) 668, 2010 PLC (Labour) 354.

16. Thus it has rightly been held by both the trail and appellate Courts that respondents are
entitled to the pensionary benefit f r o m the date of their joining service and not from the date of
their m regularization after training which is also part and parcel of their service.

17. We are of the considered view that the respondents were discriminated against with regard
to the calculation of the their length of service. Thus the writ petitions being without any
substance are hereby dismissed.

HBT/329/P Petition dismisse