2012 PLP (C (PLC(CS))

Petitioner was employed on 2-10-1994 as Junior Instructor (Welder) and his employment was terminated on 28-8-1996. Immediately after termination the petitioner was employed on the same post on contract basis vide letter dated 4-9-1996 but he was again dismissed from service on 2-5-1997. The Sacked Employees (Re-instatement) Ordinance, 2009 was promulgated by the President of Pakistan and ultimately it was converted into an Act (Sacked Employees (Re-instatement) Act, 2010) and was duly published in the Gazette of Pakistan on December 08, 2010. Petitioner claims that he is a person falling within the definition of the Sacked Employee as contained in the Act of 2010 and he has not been granted either re-instatement or benefits contained in the Act of 2010. He consequently filed this constitutional petition with following prayers:

(a) to declare that the petitioner is entitled to be reinstated against the post of Junior Instructor (Welder) on permanent basis and not on contract basis and direct the respondents to reinstate the petitioner in service w.e.f. 1-10-2009 on regular/ permanent basis with all consequential benefits as provided in the Ordinance (clause 3). (b) any other relief as this Honourable Court may deem fit and proper under the circumstances of the case.

2. This petition came up for Katcha Peshi today. Law Officer/departmental representative of respondent No.2 Foundation admitted that in terms of definition of Sacked Employees petitioner fall within that definition. He further submitted that this petition is not maintainable. In this regard he relied upon Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others (PLD 2010 SC 676), Nasiruddin Ghori v. Federation of Pakistan through Secretary and 4 others (2010 PLC 323), and Pakistan Telecommunication Company Ltd. through Chairman v. Iqbal Nasir and others (PLD 2011 SC 132), as according to the Law Officer respondent No.2 does not have statutory rules of service. He further relied upon section 3 of the Sacked Employees (Re-instatement) Act, 2010 and contended that the Act was published in Gazette on December 8, 2010 and petitioner was required to make an application within 90 days and since he has not made such an application he is not in any case entitled to the benefits under the Act of 2010. Learned Deputy Attorney General supported contention of departmental representative.

3. We have considered submissions of learned counsel as well as departmental representative of respondent No.2.

4. As far as question regarding maintainability of petition is concerned, the petitioner has not put forward any claim in respect of any of terms and conditions of his employment. His claim is based on a statutory provision. He has claimed that a Statute i.e. the Sacked Employees (Re-instatement) Act, 2010 confers upon him right and concomitant obligation on respondent Foundation to act in accordance with provision contained in the Statute in respect of employment of the petitioner. Such aspect has been considered by this Court in Shahid Mehmood Usmani v. House Building Finance Corporation through Managing Director and others (2010 PLC (C.S.) 1360) and it has been held that if a particular aspect of employment is protected or is governed by a particular Federal Statute the petition would be maintainable in respect of that aspect of employment which is governed by a Federal Statute. Therefore, contention of learned Law Officer of respondent No.2 Foundation is repelled.

5. Second objection by the respondent No.2 Foundation was that petitioner required to make application under section 3(1) within period of 90 days of the Enactment of the Sacked Employees (Re-instatement) Act, 2010, Said Subsection reads as under:

"

3. Application of sacked employee.

(1) A sacked employee, as defined in section 2 above, may file an application, within ninety days of the enactment of this Act, to an officer of his employer for re-instatement of his service where the sacked employee shall clearly write the date of application appearing on the face of application."

6. As stated above the Act received assent of President of Pakistan on December 6, 2010 and was published in the Federal Gazette on December 8, 2010. Therefore, in terms of Article 75 of the Constitution of the Islamic Republic of Pakistan the Act came into force on December 6, 2010 and, therefore, the application under section 3(1) of the Act should have been made within a period 90 days of December 6, 2010 which period of 90 days expired on March 7, 2011. However, this constitutional petition was filed on 9-6-2010 and is being disposed off today and therefore petitioner is entitled to exclusion of period till to-date and therefore his case is not barred by section 3(1) of the Act of 2010. Therefore this objection raised by the Law Officer of respondent No.2 Foundation is also repelled.

7. Upon promulgation of the Ordinances order of re-instatement of petitioner was issued on February 15, 2010 and then through letter dated May 27, 2010 he was called upon to join within 15 days. However, petitioner felt that he should have been placed in a particular scale. In this regard he submitted appeal to the departmental authorities. Nothing has been placed by the respondent No.2 that any response to appeal was given. Law Officer submitted that the Act came on December 6, 2010 whereas this petition was filed in June, 2010 and, therefore, when this petition was filed Act was not in force and it was the preceding Ordinance which is relevant and since provision regarding application under section 3 (which section was not there in the earlier Ordinance) cannot be made applicable to the case of petitioner. Suffice it to say that it has been held by the Honourable Supreme Court in Mst. Amina Begum and others v. Mehar Ghulam Dastgir (PLD 1978 SC 220) that High Court while dealing with constitutional petition can take into consideration changed circumstances.

8. Since it is admitted that the petitioner falls within the definition of Sacked Employee as contained in section 2(f) of the Act, 2010 respondent No.2 Foundation is directed to re instate the petitioner in terms of provisions contained in the Sacked Employees (Re-instatement) Act, 2010 and grant him benefits in accordance with provisions of the Act of 2010. This must be done within the period of four weeks of the date of this order.

9. This constitutional petition is consequently admitted to regular hearing and is allowed in the above terms. H.B.T./M-60/K Petition allowed.