2017 PLP (C (PLC(CS))

JAWAD HASSAN, J.

Through this single judgment we intend to decide the instant Intra Court Appeal as well as Criminal Original No.279-W of 2012 as both the same are outcome of the impugned judgment dated 08.06.2009 passed by the learned Single Judge in Writ Petition No.2161/2009 whereby the, petition of the Respondent for reinstatement in service was accepted.

2. Learned counsel for the Appellants submitted that the impugned judgment is against the law and facts and liable to be dismissed on the grounds that when the Respondent had already availed alternate remedy by way of appeal before the Labour Appellate Tribunal, the writ petition was not competent before the High Court; that the learned Single Judge has exceeded its jurisdiction while passing the impugned judgment; that the writ petition was liable to be dismissed on the sole ground laches as the same was filed after a delay of five years; that the impugned judgment is result of misreading and non-reading of material available on record as the learned Single Judge has ignored the fact that the termination orders of the Respondent were issued under non-statutory Rules and no writ is competent against non-statutory Rules as such the impugned judgment is liable to be set aside. In support of his contentions learned counsel for the Appellants has placed reliance on the case titled George v. Pakistan International Airlines Corporation (PLD 1971 Lahore 748), Shahid Khalil v. Pakistan International Airlines Corporation, Karachi (1971 SCMR 568); Raziuddin v. Chairman, Pakistan International Airlines Corporation and 2 others (PLD 1992 Supreme Court 532) and Ms. Zeba Mumtaz. v. First Women Bank Ltd. and others (PLD 1999 Supreme Court 1106).

3. On the other hand learned counsel for the Respondent contested the arguments advanced by the learned counsel for the Appellants and prayed for dismissal of the instant appeal being not maintainable on the grounds that there is no illegality or jurisdictional error in the impugned judgment which has been passed in accordance with law; that the learned Single Judge has rightly invoked the jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution") as the order dated 31.12.2004 was passed by the Appellants keeping aside the specific law which was sufficient ground for competency of the writ petition.

4. Arguments heard and record perused.

5. From the perusal of impugned judgment it reveals that the learned Single Judge while setting aside the impugned order therein dated 31.12.2004 has held that Petitioner's ouster from service is a nullity in the eye of law and she shall be deemed to be in service of the PIA. The order dated 31.12.2004 clearly reflects that the contract of the Petitioner was not extended for the year 2005 and she was not allowed to be detailed on any flight/ duty w.e.f. 01.01.2005, as such the said order exclusively falls within the domain of terms and conditions of service of an employee rather the said order was passed in connection with affairs of the Federation.

6. Admittedly the Appellant Pakistan International Airline has no statutory rules and the relationship between the Respondent and the Appellants is that of master and servant. It is an established principle that in such like cases the Constitutional petition is not maintainable. The question involved has been finally settled by the Honourable Supreme Court in case titled Pakistan International Airline Corporation and others v. Tanveer ur Rehman and others (PLD 2010 SC 676) wherein it was as follows: "

19. However, this question needs no further discussion in view of the fact that we are not of the opinion that if a corporation is discharging its functions in connection with the affairs of the Federation, the aggrieved persons can approach the High Court by invoking its constitutional jurisdiction, as observed hereinabove. But as far as the cases of the employees, regarding their individual grievances, are concerned, they are to be decided on their own merits namely that if any adverse rules, only then such action should be amenable to the writ jurisdiction. However, if such action has no backing of the statutory rules, then the principle of Master and Servant would be applicable and such employees have to seek remedy permissible before the Court of competent jurisdiction." Reliance can also be placed on the case titled Hassan Mehmood v. Habib Bank Limited Through President and 4 others (2016 PLC (C.S.) 315).

7. Reading of above Para indicates that the Hon'ble Supreme Court of Pakistan has held in George case, Shahid Khalil case and PIA case supra that if there are no statutory rules then relationship is (and, if created, would be) that of Master and Servant. Hence, these judgments are binding on the High Court under Article 189 of the Constitution of the Islamic Republic of Pakistan, 1973. One of the essential and fundamental precepts of relationship of Master and Servant is that servant cannot be thrust upon an unwilling master. Therefore, whether such thrusting is sought by setting aside of termination or by ordering initial appointment would be immaterial in this regard.

8. Moreover, the Respondent had alternate remedy against the order dated 31.12.2004 before the appropriate forum. It is trite law that where alternate and efficacious remedy is available to the Respondent the extra ordinary jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 cannot be invoked.

9. In view of above, the instant appeal is accepted and consequently the impugned judgment dated 08.06.2009 is set aside. The above-mentioned Criminal Original stands disposed of accordingly. ZC/P-3/L Appeal allowed.