2015 PLP 1545 (SCMR)

MAQBOOL BAQAR, J.

The appellant, through the above appeal, filed with the permission of the Court, has assailed the judgment dated 13-5-2010, whereby a Division Bench of the learned High Court of Sindh allowed the Constitution Petition of the private respondents and directed the appellant (PIAC), to pay to the private respondents certain benefits being their employment benefits such as encashment of accumulative leave and leftover increments since 1997 onwards.

2. The background of the matter, in brief, is that 24 retired employees of the appellant Corporation filed a Constitution Petition before the learned High Court of Sindh for the above benefits. The said petitioners/present respondents were retired on 31-10-1997 under a Mandatory Early Retirement Scheme as per Administrative Order No.15/1997. It was pleaded that earlier 238 employees of the Corporation, who also were affectees of the above Administrative Order, filed an Appeal before the Federal Services Tribunal for the above benefits. The Tribunal through its judgment dated 28-2-2004 directed the Corporation to pay to the appellants before it the above benefits and to report compliance within a period of two months. The Corporation did not challenge the above judgment but failed to implement the same. The said affectees thus approached the Tribunal, whereupon the Tribunal through its order dated 9-10-2008 directed the Corporation to implement the judgment and to pay the dues as ordered.

3. The said order was challenged by the Corporation before this Court through C.Ps. Nos. 1588-1825 of 2009, which were through a detailed order dated 17th June 2009, dismissed with direction to the Corporation to "accept the benefit of increment and encashment for PL/LPR within a period of one month of the receipt of the copy of this order". The private respondents being placed as were the petitioners in the aforesaid case, approached the Tribunal, however, in view of the case of Mubeen-us-Slam and others v. Federation of Pakistan (PLD 2006 SC 602), the appeal abated.

4. The private respondents Nos. 1 to 24, thus filed C.P. No. 1927 of 2006 before the learned High Court. The respondents Nos. 25 and 26 were also joined in the said Petition being affectees of Administrative Order No. 15/1997. The petition was allowed as noted earlier.

5. Mr. Khalid Javed learned counsel for the appellant submitted that the impugned judgment has been passed without jurisdiction as neither the respondents' petition was maintainable nor was the High Court competent to entertain the same. He further submitted that it is now well settled that where conditions of service of employees were not regulated by statutory rules, such employees would be governed by the principle of "master and servant" and Constitution Petition in such matters, will not be maintainable and since the terms and conditions of employment in the appellant Corporation are admittedly not governed by any statutory Rules and the employees of the Corporation are amenable to the Rule of "master and servant", the petitions pertaining to the matters relating to the terms and conditions of service of PIA employees are not maintainable. In support of this proposition, learned counsel relied on the following judgments: (i) Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others (PLD 2010 SC 676). (ii) Abdul Wahab and others v. HBL and others (2013 SCMR 1383) (iii) Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707). (iv) Syed Nazir Gillani v. Pakistan Red Crescent Society and another (2014 SCMR 982).

6. Learned counsel further submitted that the private respondents failed to invoke the appropriate jurisdiction at the relevant time and approached the High Court as late as in September 2006 i.e. about 9 years after their retirements and have remained indolent. Learned counsel submitted that the learned Division Bench reliance on the case of Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others (1996 SCMR 1185), is wholly misplaced, as the same pertains to civil servants and the principle enunciated thereby, as obvious from the language employed therein, can be applied in the service matters of civil servants only and not otherwise.

7. On the other hand Mr. A.S.K. Ghori learned counsel for the private respondents submitted that the private respondents wrongly and unjustly denied the employment benefits pertaining to encashment and PL/LPR increments and so has been held not only by the Services Tribunal but also this Court through a detailed order dated 17-6-2009 in C.Ps. Nos. 1588-1825 of 2009, dismissing the said petitions filed by the appellate Corporation with direction to the Corporation to pay the benefits of increments and encashment for PL/LPR. Mr. Ghori further submitted that the respondents being similarly placed as were the petitioners before the Service Tribunal and the judgment of the Tribunal, upheld by this court, is equally applicable to the private respondents and they are entitled to be treated and dealt with in the manner as were the petitioners before the Service Tribunal. He further contended that the principle that "if the Service Tribunal or Supreme Court decides a point of law relating to the terms of service of a civil servant which covers not only the case of civil servant who litigated, but also of other civil servants, who may have not taken any legal proceedings, in such a case, the dictates and rule of good governance demand that the benefit of such judgment by Service Tribunal/Supreme Court be extended to other civil servants, who may not be parties to the litigation instead of compelling them to approach the Service Tribunal or any other forum," as enunciated by this Court in Hameed Akhtar Niazi's case (supra) is fully applicable to the present case and urged dismissal of the present Appeal.

8. There is a plethora of judgments to the effect that no petition lies in the matters pertaining to the terms and conditions of service of employees of a Corporation, where such terms and conditions are not governed by statutory rules. It is an admitted position that the terms and conditions of the employees of the appellant Corporation are not governed by any statutory Rules, and is now well settled that the relationship between the appellant Corporation and its employees is that of a "master and servant". The case of Hameed Akhtar Niazi (supra) is of no avail to the private respondents, as the same, as discussed above, pertains to the matters relating to the civil servants, whereby the relationship and terms and conditions of service are governed by Civil Servants Act and such relationship is not that of master and servant. The private respondents remained indolent in the matter and approached the Federal Service Tribunal only after the Tribunal's judgment dated 28-2-2004, being relied upon by them for seeking benefits, was passed by the Federal Service Tribunal. There proceedings before the Tribunal abated as noted above, and thus the only course left to the said respondents was to file a suit for redressal of their grievance. Since as noted above, the petition was clearly not maintainable, the impugned judgment is thus liable to be set aside.

9. We, therefore, allowed this appeal and set aside the impugned judgment. The private respondents may however, if so advised, file suit for redressal of their grievance before the appropriate forum, which may, keeping in view that the matter has already been delayed inordinately and also that the private respondents are of advance ages, be disposed of, as expeditiously, as possible. MWA/P-5/SC Appeal allowed.