2017 PLP 75 (PLC)

S. 46

Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.4

Grievance petition

Employee of Pakistan Telecommunication Company Limited

Regularization of service

Scope

Employee was appointed on 09-06-1990

Contention of employee was that he was entitled to be regularized in service with effect from the date of his initial appointment on the basis of Circular dated 17-09-1997

Labour Court accepted the grievance petition directing the employer company to regularize the employee with effect from his initial appointment with all the back benefits

Labour Appellate Tribunal decided in appeal that employee should be regularized in accordance with the terms recorded in the Circular

Validity

Impugned judgment had been passed in consonance with the spirit of law after taking into consideration all the material made available

Pakistan Telecommunication Company Limited Circular dated 17-09-1997 had a sanction of S.4 of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968

Employee had availed the benefit of said Circular in the shape of regularization of his service

Employee, in circumstances, could not claim to be regularized otherwise than the conditions of the Circular and could not be allowed to partly accept and partly disown the Circular

Standing Orders might be modified by means of collective agreement and not otherwise

Employee had failed to point out any discrimination by the employer-company

Labour Appellate Tribunal had passed the detail judgment after examining all the record including the Circular of employer

Constitutional petition was dismissed in circumstances. The Workmen of Tando Jam and its Feeders v. Director, Agricultural Engineer, Sindh and 8 others 1981 PLC 47; Mohammad Hussain and 3 others v. Syed Ahmed Masood and another 1974 PLC 61; Sindh Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another PLD 1975 SC 450; Ibrahim v. Muhammad Hussain PLD 1961 SC 119; Faysal Bank Limited v. Punjab Labour Court and another 2002 PLC 244 and The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan Works Division and 2 others PLD 1972 SC 279 ref. Managing Director, Sui Southern Gas Company Ltd. Karachi v. Ghulam Abbas and others PLD 2003 SC 724; Executive Engineer, Central Civil Division, Pak PWD Quetta v. Abdul Aziz and others PLD 1996 SC 610; Punjab Seed Corporation and 2 others v. Punjab Labour Appellate Tribunal and 2 others 1996 SCMR 1947; Izhar Ahmed Khan and another v. Punjab Labour Appellate Tribunal, Lahore and others 1999 SCMR 2557; Province of Punjab through Secretary Communication and Works Department and others v. Ahmad Hussain 2013 SCMR 1547 and Tehsil Municipal Administration v. Muhammad Amir 2009 SCMR 1161 distinguished. Muhammad Mubeen us Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602; Allied Bank Ltd. v. Muhammad Ilyas 2010 PLC 13; M.C.B. Bank Limited through Authorized Representative v. State Bank Pakistan through Governor and 2 others 2010 CLD 338; Hashwani Hotels Limited v. Federation of Pakistan and others PLD 1997 SC 315; Army Welfare Sugar Mills Ltd. v. Federation of Pakistan and others 1992 SCMR 1652; Dadabhoy Cement Industries Ltd. v. M/s. National Development Finance Corporation, 2002 CLC 166 and IMC v. Federation of Pakistan PLD 2011 Kar. 494 rel.

Notifications, instructions and circulars issued by the government or statutory bodies could operate prospectively and not retrospectively. ORDER JAWAD HASSAN, J.

Through the instant petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner while challenging the legality of judgment dated 20.03.2013 passed by the Respondent No.1, has sought modification in the same and regularization of his service w.e.f. 09.06.1990.

2. Brief facts of the case are that the Petitioner joined service with Pakistan Telecommunication Company Limited ("PTCL") as Telephone Operator w.e.f. 09.06.1990 and after rendering service of three months under Standing Order No.1(b) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (the "Ordinance") became permanent Workman/Regular employee but was considered as temporary employee. The Petitioner after exhausting remedy of departmental appeal filed appeal before the Federal Service Tribunal at Lahore which was declared as abated vide notice dated 02.08.2006 in pursuance of case titled as Muhammad Mubeen us Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others (PLD 2006 SC 602). Thereafter, the Petitioner served a grievance notice to the Respondents and then filed Grievance Petition which was accepted by the learned Punjab Labour Court No.4, Faisalabad vide judgment dated 07.09.2009 directing the Respondents to regularize the services of the Petitioner w.e.f. the date of his first appointment along with all the back benefits. The said judgment was implemented in letter and spirit. Feeling aggrieved thereby the Respondents Nos.2 and 3 preferred an appeal before the Respondent No.1 which was partly allowed vide the impugned judgment dated 20.03.2013. Hence, the instant petition.

3. Pre-admission notice was issued to the Respondents vide order dated 06.12.2013 and in pursuance of which the Respondents Nos.2 and 3 put appearance through their representatives.

4. Learned counsel for the Petitioner submitted that the impugned judgment to the extent of date of regularization of Petitioner's services i.e. 17.09.1997 is against the law and facts as the same has been passed in violation of the Ordinance. Learned counsel further argued that the Respondent No.1 has failed to take into consideration the findings of the learned Labour Court which had been passed in accordance with law. Learned counsel also contended that the judgment to the above extent is not sustainable in the eye of law as the same has not been passed keeping in view the Ordinance and the latest pronouncements of the Hon ble Supreme Court of Pakistan in this regard. Learned counsel also maintained that the appeal of the Respondents Nos.2 and 3 was not competent as the judgment of the Labour Court had been implemented much before assailing the same. Learned counsel also pointed out that the impugned judgment of the Respondent No.1 is in clear violation of the fundamental rights of the Petitioner guaranteed under the constitution. To further strengthen his contentions learned counsel has placed reliance on the cases titled Managing Director, Sui Southern Gas Company Ltd. Karachi v. Ghulam Abbas and others (PLD 2003 Supreme Court 724), Executive Engineer, Central Civil Division, Pak PWD Quetta v. Abdul Aziz and others (PLD 1996 Supreme Court 610), Punjab Seed Corporation and 2 others v. Punjab Labour Appellate Tribunal and 2 others (1996 SCMR 1947), Izhar Ahmed Khan and another v. Punjab Labour Appellate Tribunal, Lahore and others (1999 SCMR 2557), Province of Punjab through Secretary Communication and Works Department and others v. Ahmad Hussain (2013 SCMR 1547) and Tehsil Municipal Administration v. Muhammad Amir (2009 SCMR 1161).

5. On the contrary learned counsel for the Respondents has contested the arguments advanced by the learned counsel for the Petitioner and contended that the Petitioner cannot claim his regularization from the date of his appointment on the basis of Respondents' circular dated 17.09.1997 as the same was having prospective effects. Learned counsel also argued that the grievance notice to the Respondents was time barred because it relates to the grievance of 1997. Learned counsel further stated that the Petitioner was not entitled to the relief claimed for as he was matriculate and fell short of the prescribed qualification of intermediate. Learned counsel further argued that the instant Petitioner is liable to be dismissed as there is no illegality or infirmity in the impugned judgment. Learned counsel has placed reliance on the cases titled The Workmen of Tando Jam and its Feeders v. Director, Agricultural Engineer, Sindh and 8 others (1981 PLC 47), Mohammad Hussain and 3 others v. Syed Ahmed Masood and another (1974 PLC 61), Sindh Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another (PLD 1975 Supreme Court 450), Ibrahim v. Muhammad Hussain (PLD 1961 SC 119), Faysal Bank Limited v. Punjab Labour Court and another (2002 PLC 244) and The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan Works Division and 2 others (PLD 1972 Supreme Court 279).

6. I have heard the arguments of the learned counsel for the parties and have gone through the record.

7. The main grievance of the Petitioner is that he is entitled to be regularized in service with effect from the date of his initial recruitment i.e. 09.06.1990 instead of 17.09.1997. The perusal of impugned judgment reveals that the same has been passed in consonance with the spirit of law after taking into consideration all the material made available. In the impugned judgment the Appellate Tribunal has rightly observed as follows: "The main issue is whether the Respondent has any right to be regularized in view of PTCL's circular dated 17.09.1997. A perusal of the said circular reveals that in fact it records the agreement between PTCL management and its CBA. No doubt, the said agreement is not a "Settlement" as defined in section 2(xxvi) of the Industrial Relations Ordinance, 2002, for having not entered into during the pendency of an industrial dispute. Nevertheless, this agreement is a collective agreement as defined by section 2(a) of the Industrial and Commercial (Standing Orders) Ordinance, 1968, as it specifies the conditions of employment and has been entered into by and between the employer, PTCL and the CBA, the duly authorized representatives of the workmen. Reference may be made here to section 2(g) of the Industrial and Commercial (Standing Orders) Ordinance, 1968, which provides that Standing Orders include any modifications made pursuant to section 4 of the Industrial and Commercial (Standing Orders) Ordinance, 1968. According to section 4 ibid, a collective agreement has the effect of modifying the Standing Orders provided that no rights conferred by the Standing Orders are diminished or taken away. The collective agreement or the circular dated 17.09.1997 is, thus, recognized and sanctioned by section ibid as it confers additional rights on the PTCL's employees to be regularized in accordance with the terms recorded therein. As such, the Respondent cannot be denied the benefits conferred by the collective agreement which include the Regularization of the PTCL's Telephone Operators provided that they have remained in continuous service for a period of 4 years. Applying the criteria specified in the circular, there is no doubt that the respondent was qualified to be regularized as he had completed 4 years' service counted from 09.06.1990."

8. From the above, it is clear that the PTCL circular dated 17.09.1997 has a sanction of Section 4 of the Ordinance. For the sake of brevity Section 4 of the Ordinance is reproduced herein blow: "

4. Modification of Standing Orders. The Standing Orders may be modified by means of a collective agreement and not otherwise. Provided that no such agreement shall have the effect of taking away or dismissing any right or benefit available to the workman under the provisions of the Schedule."

9. As, from the above, it is clear that the Petitioner has availed the benefit of said circular in the shape of his regularization, therefore, now cannot claim to be regularized apart from the conditions of circular. The Petitioner derived benefits of circular through regularization of his services but cannot be allowed to partly accept the same and partly disown it thought he had taken full benefit of it. Reliance in this regard can be placed on the case, titled Allied Bank Ltd. v. Muhammad Ilyas (2010 PLC 13 [Lahore High Court]) wherein it has been held as follows: "Coming to the merit of the case, the scheme was launched on 4-9-2002 and a freezing date was fixed as 30-6-2002 for the purposes of calculation of pension at any time when the employee retires but with this disadvantage a major advantage was also given to the employees in the shape of major jump in their salary package. Respondent on 23-4-2005 in unequivocal terms giving reference to the scheme of 4-9-2002 gave his option to continue with the pensionary scheme payable in terms of the said scheme, therefore, he cannot be allowed to partly accept the scheme and partly disown to the portion which is disadvantageous to him although he has taken all the benefits in the shape of increased pay." Furthermore, in case titled M.C.B. Bank Limited through Authorized Representative v. State Bank Pakistan through Governor and 2 others (2010 CLD 338) before Hon'ble Mr. Justice Mian Saqib Nisar, it was held as follows: "In the present case, not only that the petitioner's members during the time when they were in the employment of the MCB have subscribed/assented to the RPP which admittedly was acted upon and they derived all the benefits on account of the said package, which (the package) is not shown to be the one hit by the provisions of section 23 of the Contract Act. The petitioner's members, therefore, are estopped by their own conduct to challenge the RPP; besides, the rules of acquiescence and waiver are also duly attracted to discard their stance in this behalf."

10. Based on 1997 Circular, the Petitioner was regularized by the Labour Court which was partially upheld by the Appellate Tribunal in detail as reproduced in paragraph 7 above, hence the Petitioner cannot disown the circular under which he has been regularized. Section 4 of the Ordinance clearly states that the Standing Orders may be modified by means of collective agreement and not otherwise. It was rightly held by the Appellate Tribunal that the circular contemplates regularization of an employee with effect from 17.09.1997.

11. Furthermore, the Petitioner has failed to establish from the record that any discrimination has been made as nothing with the file has been annexed to show that the colleagues/similarly placed persons have been regularized from the date of their initial appointment in view of the said circular or otherwise. The judgments relied on by the Petitioner are not relevant to the issue whether the effect of circular is prospective or retrospective. In view of above, this Court fully agrees with the findings of the Appellate Court which are as follows: However, the PTCL 's circular dated 17.09.1997 is prospective in effect and does not allow regularization with effect from the date of initial appointment. The circular, thus, contemplates regularization of an employee with effect from 17.09.1997 provided he had completed four years' service as on 06.10.1996."

12. From the above it is clear that the Appellate Tribunal has passed the detail judgment after examining all the record including the circular dated 17.09.1997 by holding that the circular is prospective in effect and does not allow the regularization with effect from the date of initial appointment which is as per the requirements of the Section 4 of the Ordinance. It is settled law that notifications, instructions, circulars etc., issued by the Government or statutory bodies operate prospectively and not retrospectively. In this regard one may refer to Hashwani Hotels Limited v. Federation of Pakistan and others (PLD 1997 SC 315), Army Welfare Sugar Mills Ltd. v. Federation of Pakistan and others (1992 SCMR 1652), Dadabhoy Cement Industries Ltd. v. M/s. National Development Finance Corporation, (2002 CLC 166) and IMC v. Federation of Pakistan, (PLD 2011 Karachi 494).

13. In view of what has been discussed above, I see no merit in the instant petition and the same is hereby dismissed. ZC/M-7/L Petition dismissed. ***