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THE A UCUST PESHA WAR HISH:CO(Jkt iiwct ABBOTTAHAD

0 W.P. No. SckT 72016

Abdul Wahid s/o Sardar Muhammad Driver In. Estate Office, T&T Colony Haripur Muhammad Ismail s/o Muhammad 1-laleem, TIC Stares, Estate Office,

T&T Colony Haripur Saleh Shah s/c Abdur Rehman Shah, Electridan, Estate Office, T&T Colony Haripur Muhammad Mukhtar 5/0 Abdur Rahim, 551, Estate Office, T&T Colony Haripur Muhammad Saleem s/o Noor Muhammad, Qasid, Estate Office, T&T Colony Haripur Naveed Ahmed s/o Qalandar Khan, AE, Estate Office, T&T Colony Haripur Naveed Ahmed s/o Nazir Ahmed Siddiqul, A.Admin, Estate Office, T&T Colony Haripur Muhammad Rafique s/o Haji Ahmed, MW, Estate Office, T&T Colony Haripur Gulfaraz s/o Muhammad Sanar, MW, Estate Office, T&T Colony Haripur Muhammad Saleem s/o Muhammad Zarnan Khan Plumber, Estate Office, T&T Colony Haripur. Astar Shah s/o Ashraf Shah, GEl, Estate Office, T&T Colony Haripur Sher Aslam s/o Mujibullah Khan, HS, GF Estate Office, T&T Colony Haripur Abdul Ghaffar s/o Sardar Muhammad Whi Estate Office, T&T Colony Haripur Haq Nawaz s/o Muhammad Akbar, PH Estate Office, T&T Colony Haripur Nazar Gui s/o Sammandar Khan, Mali Estate Office, T&T Colony

Haripur Mehboob Khan s/o Daud Khan, PD Estate Office, T&T Colony Haripur Abdur Rehman s/o Mir Haider, MH Estate Office, T&T Colony Haripur Aziz ur Rehman s/a Niaz Mehmood, SK-I Estate Office, T&T Colony Haripur Muhammad Iqbal s/o Mian Khan, Driver Estate Office, T&T Colony Haripur

Umer Khan s/o Muhammad Akbar, Qari in Telecom Boys High School Haripur Abdur Rehman s/o Sher Afzal, Qari in Telecom Boys High School Haripur Nawab Khan s/o Aurangzeb Khan, SET Telecom Boys High School Haripur Waqar Jadoon s/o Muhammad Akram CMP INST: Telecom Boys High School Haripur

Sajida Mehboob w/o Muhammad Mehboob, SET Telecom Girls. School & College Haripur Nighat Parveen w/o Maqsood Akhtar, Telecom Girls School & Colege Haripur Gulnaz Bibi w/o Farooq Khan, JET, Telecom Girls School & College Haripur

3

/*

Judgment Sheet -

IN THE PESHAWAR HIGH CURT; / ABBOTTABAD BENCH. N

JUDICIAL DEPARTMENT•

WP No. 585-A/2016

JUDGMENT

Date of hearing. ........ 08-08-2017.........................

SYED ARSHAD All, 1:- Through this

single judgment we intend to dispose of

writ petitions No.585-A/2015, 550-A/20161

703-A/2016, 930-A/2016 and 03-A/2017,

as in the above writ petitions a common

question of law is involved.

%fiedt0" EXAMINER 2. The petitioners through the instant

2 6 SE petitions claim to be regular employees of Bench

r"ed

PeShN31 ou

Odrls , Telephone Industries of Pakistan, "TIP"

uthorized which is a Private Limited Company owned

and controlled - by Federal Government.

() Their common and precise grievance is

that they are the employees of TIP,

however, the management of TIP does not

2

recognize them as their employees. They

have chalienged the stance of the

management 61 TIP, whereby they have

been treated as the employees of Colony

Board established in the year 1957 as

independent body to look after the affairs

of housing colony of the employees of TIP

and the. erstwhile Pakistan telegraph

department "P&T".

3. In writ petition No.930-A/2016 the

petitioner is the Principal of Telecom Girls

Public School and College, Haripur and he

also claims the same relief against the

respondents.

.4. In writ petition No.703-A/2016 the

petitioner is allegedly the General

Secretary of TIP Employees and WOrkers

Union (Reg) CBA, Haripur and other

petitioners are allegedly the office bearers

of the CBA.

5. In writ petition No.550.-A/2016,

petitioner No.1 claims to be the President

of TIP Employees and Workers Union (Reg)

CBA, Haripur and other members of union

also seek appropriate orders for setting

aside the impugned actions of

respondents, however, in essence the

claim of the petitioners revolves around

factual and legal grounds as alleged in the

aforesaid other writ petitions.

3

6. Writ petition No.03-A/2017 has been

filed by Dr. Iftikhar All, Medical

I . Superintendent of T&T Colony Hôspftal,

Tehsil and .Distrkt Haripur and seeks . . indulgence of this Court f6r protection of

his service.

7. The learned counsel for petitioners

while arguing his case has referred to the

documents placed on record such as

income tax deduction certificates, whereby

income tax has been deducted from their

salaries as the employees of TIP, EOBI Registra, appointment letters and

certain posting and transfer orders of the

employees from Colony Board to other

units of TIP, and allotment of

accommodation to the petitioners in the

Colony. He has also referred to the

minutes of meeting held under the

supervision of Managing Director of the TIP

dated 07.02.2008 wherein it has been

confirmed in item (m) that Colony Board I

will be considered as part of TIP and main

power/estate will be utilized for facto ry and family quarters.

8. Learned counsel for petitioners has

also referred to the appointment letter of

the then Managing Director of TIP dated ci 06.10.2008, which reflects that the said

incumbent was also appointed as

Chairman of Colony Board. Learned

4

14

counsel has also stated that even TIP

provides uniform to the petitioners and has

also referred to the letter relating to the

budget of TIP visLavis Colony Board. In

those letters it has been confirmed that

Colony Board budget is the part of TIP

budget.

9. Learned counsel appearing on behalf of

respondent No.2/PTCL has raised

preliminary objection to the maintainability

of the petitions and stated that the

petitioners have no relation with

respondent No.2 and even their relation of

alleged employment with TIP is not

governed by any statutory rules,

therefore, the present petitions are not

maintainable.

10 Learned counsel appearing on behalf of

respondents No.3 to 7 (TIP) stated that

indeed T&T Colony Board was established

on 28.5.1957 as non-profit entity to look

after the maintenance including annual

repairs, special repairs of all buildings

located in the Haripur T&T Colony. He

further stated that T&T Colony Board was

established as non-profitable organization

by the erstwhile Pakistan Telegraph

Department of Government of Pakistan

and TIP. The expenses of the Colony Board

were to be borne by both the entities at

the ratio of 50:50.

J

or

11. Arguments heard and record

perused.

j1.2. The perusal of the record shows that

the Government of. Pakistan had acquired

V 306 aères, 03 karials and ii marlas land

through an Award dated 25.4.1953 at

District Haripur. On . the said land the

Federal Government established Telephone

Manufacturing Factory. However, the said

factory was owned by a private limited

company, Telephone Industries of Pakistan

Private Limited (TIP). In the said premises

the Federal Government also established

Telecom Staff College and National Radio

Telecommunication Corporation "NRTC".

As three differen€ organizations were

operating and functioning ( all under the

control of Federal Government) in. the

acquired area, hence it was decided by the

then competent authority to provide basic

necessities as Hospital, Schools,

Residential Quarters Security for the

facilitation of employees serving in the

aforesaid organizations in one compound.

To look after and supervise the aforesaid k thO3.,.=.r.'

amenities, a separate Board commonly

referred to as T&T Colony Board was

established as independent entity. The

then DG, T&T was administrative head of

three organizations all operating in one

compound and was appointed by the

6

Federal Government as the administrative

head of the T& T Colony Board" Board".

13. In order to. fully understand the

composition of the Board,. we deem it

appropriate to reproduce letter memo

No.N/57-3/57 dated. 285.1957 which has

given birth to the establishment of the Board.

"PAKISTAN POSTS AND TELEGRAPHS

DEPARTMENT

Office of the director general posts and telegraphs.

Memo No.57-3/57 Karachi 28Th May, 1957

Subject:- SETTING UP OF COLONY BOARD FOR THE P&T COLONY AT HARIPUR.

For the purpose of maintenance of the Colony of P&T and TIP at Haripur it has been decided to form a Colony Board consisting of following:-

IQ General Manager .... Chairman. T.LP.

Principal Member. 5o0i Training College Haripur.

Chief Accountant Member. T.LP.

0 Estate Officer Secretary. Colony Board Haripur.

7

The Colony Board will be responsible for all the maintenance, work including annUal repairs, special repairs and petty works of all the buildings .in the Hairpur P&T Colony, factory buildings, Training College and Hostel. ' The Colony Board will also be. responsible for the conservancy arrangements, horticulture, electricity, water supply, health and roads and such other work as necessary for the general' up-keep, welfare and the provision of amenities in the Colony.

The expenditure for the purpose will be met by grants under the relevant heads provided for under the bUdgets of the T.LP and Training College respectively and will be shared in proportion of 50:50 between P.& T. And T.I.P.

Sd/- Lt. Col:

(S.A.Siddiqui) Director General, Chairman of the Board,

Of T.I.P."

— / I t \Mttq /

/!

2 c Ordi

P2S' 1 or /3C'.

2?

14. The Pakistan Posts and Telegraph

Department was initially A department of

the Federa! Government, however, its

composition and restructuring have

undergone sea changes. In the year 1991

through the Act of Parliament, Pakistan

Telecommunication Corporation Act, 1991

Act No.XVIII of 1991, " Act of 1991" a

corporation was established under section

3 of the Act of 1991 known as Pakistan

Telecommunication Corporation. The task

ru.

c. 1

8

1

I

of maintaining telecommunication was

assigned to the said corporation Under

the said Act:the Federal Government has

granted a license to the • corporation to establish1 maintain and operate telegraphs

throughout Pakistan and between Pakistan

and other countries. Resultantly, the

employees of erstwhile P&T department

were transferred to the newly created

Corporation under the Act of 1991. All the

assets and liabilities of the P&T were also

transferred to the newly created Corporatio

15. In the year 1996 through Pakistan

Telecommunication (Re-organization) Act,

1996, "Act of 1996" The entire

telecommunication system of the country

was reorganized and restructured. Under the .Act of 1996, Pakistan Telecommunication Authority was established as a regulator of the

telecommunication system in Pakistan.

Under section 34 of the Act of 1996 the

Federal Government was tasked to

establish a company to be known as the

Pakistan Telecommunication Company

Limited under the Companies Ordinance,

1984 with the principal object of provision

of domestic and international

communications and related services.

.9

Whereas under section 41 of the Act, 1996

National Telecommunication Corporation

(NTC) was established for. provisions of

teleèomrnunications services within

Pakistan on non- exclusive basis only to

the Armed Forces, Defence Projects,

Federal Government, Provincial

Governments and other Government

agencies. The corporation which was

established under Act No.XVIII of 1991

was dissolved and its assets and liabilities

were transferred to the newly created

company (PTCL), NTCL and other entities

established under the Act of 1996.

16. Although no such record of transfer

of assets from the erstwhile P&T

Department to the Corporation and then to

newly created entities under the Act of

1996 has been provided to us, however, Vrt1e C

certain documents relating to the

distributions of the land upon whidi a 2 b

Colony was established is as following:- Cc

TIP 432 kanals.

NRTC 611 kanals.

PTCL 1408 kanals.

Resultantly, NRTC and PTCL stepped into

the shoes of erstwhile P&T department of

the Federal Government being partner in

the Board.

26 - coJtd Bench

Pesha!a hh -. 7,c c,rl Ordn

10

17. Due to financial constraints, all the

aforesaid stakehôlders and members of

the Board unanimously decided in its 171st

meeting. to dissolve the Board. However as

ecident: from letter dated 01-03-2007 the

said dissolution was put in abeyance.

In essence all the petitioners at the time of

filing writ petitions were aggrieved of the

letter dated 17.05.2011, wherein all the

stake holders referring to the 185th

meeting of the Board discussing the post

dissolution matter of the Board. The

petitioners hence claim that they are the

employees of TIP and not of Board,

therefore, the dissolution of the Board

would not affect their status being the

employees of TIP. However, the issue that

whether the Petitioners are the employees

of the Board or TIP has been judicially

determined by the competent court of law.

T&T Colony Board Emolovees And

Workers, Haripur through its President

filed a petition against the Chairman T&T

Colony Board before the learned Labour

Court, Haripur. Wherein, they prayed that

the employees of CBA be allowed pension

benefits in the same manner as pension as

the employees of TIP, the employees of

Colony Board also be provided residential

11

plots of 5, 7, 10 marlas and one kanal in

the same manner as allowed to other

employees of TIP and their ser ices be

also regularized. The learned Labour Court

dismissed the said petition holding that the

employees of Board are not entitled to the

said facilities as the Board is neither a

corporate body nor any commercial

industrial establishment carrying any

profitable activity, whereas TIP is an

industrial undertaking. The said decision

was challenged before the Chairman,

Labour Appellate Tribunal, Khyber

Pakhtunkhwa, Peshawar in appeal. The

Chairman, Appel!ate Tribunal also

dismissed the appeal on 13.9.2002,

wherein it was held that:-

"The pension scheme for the

employees of TIP was introduced

way back in the year 1990 on

self-finance basis. It is a matter

of record that TIP is an income

generating entity and its

employees are at so granted

rewards, bonuses, etc for the

profit earned in the process and

that is why they have been

given the benefits of pension on

self-finance basis. The T&T

Colony Board is neither an

income generating institution :8.

12

71fiCt1° be True EXIPU

2 E

Pesh3\a1H c/75 Evd2!E

npr any industrial unit rather it

is a charitable institution purely

run on the basis of funds and

donations extended by the three

independent units mentioned

above. It is also pity to note that

the pension scheme for the TIP

employees had been introduced

in the year 1990 while the

appellants are agitating the

denial of such benefits in the

year 1999 i.e. after a lapse of

nine years, meaning thereby

their case is also hit by the

principle of laches."

18. Hence the matter that the Board is a

separate and distinct entity from TIP and

its employees are also not the employees

of the TIP has been finally determined by

the Labour Appellate Court. Hence the

issue has attained finality and being a past

and closed transection cannot be re-

opened in the present proceedings.

19. During present proceedings efforts

were made by this Court to provide a

respectable package to the Petitioners on

dissolution of the Board. On 06.12.2016

this Court directed the respondents to sit

together and decide the matter relating to

13

iç4

the petitioners without any further loss of

time and also directed the concerned high-

ups of the TIP,PTCL and NRTC to appear

before the Court on the next date of

hearing with a concrete proposal. Pursuant

to the said directions all the aforesaid

stakeholders held a meeting on

23.12.2016. In the said meeting it was

agreed as below:-

a

"The three stakeholders therefore

decided to place the agreed package

before the High Court (as detailed below):

Compensation Package.

77 employees of the ex-co/ony board

including the petitioners may be given a

package of goodwill i.e. salary in lieu of

notice period as per the terms and

conditions of their individual appointment

letter plus two additional salaries, based

on salary last drawn on 30.6.2016.

GPF/Gratuity Contributions.

GPF and Gratuity to the 77 employees as

due to them as on 30.6.2016 may be

disbursed to them after required

verification of record and due

diligence/reconciliation.

('3) Opportunity of providing job in PTCL

and NTR C.

A In order to facilltate these employees to lcd

continue their earnings, it was decided in

I.

¼ I *

- 14

/ principle, that the 77 employees would be

/ given fresh employment/adjusted within

/ the two organiiatiohs i.e. PTCL and NRTC

as per their approved policies with effect

from 01.07.2016. Their starting salaries

shall be equal to their last gross salary

drawn on 30.06.2016. Fourteen (14) of the

employees out of the said 77 employees

fall within the share of NRTC while the

remaining sixty three (63) employees fall

within the PTCL share."

Despite the fact that the services of

the petitioners do not enjoy and statutory

protection, however, if the aforesaid

package is viewed through the prism of

Standing Orders Ordinance 1968, the

same appears to be more lucrative than

the rights guaranteed to employees of

commercial or industrial establishments.

Hence the package offered to the ExMtt:ç petitioners pursuant to the order of this

2 b court is appropriate and does not infringe

E J~6h~ s the rights of the petitioners.

Now moving to the preliminary

objection to the maintainability of these

writ petitions. Admittedly, the petitioners

are the employees of the Board and their

employment is not governed through any

U It

15

statutory rules, hence the relationship is

that of a master and servant.

In Pir Imran Sajid and others vs Managing Director/General Manager

(Manager Finance) Telephone

Industries of. Pakistan and others

2015 SCMR 1257, the August Apex Court

while issuing directions for regularizing the

services of the employees of TIP pursuant

to the decision of Cabinet has ruled that;-

EXAM

26

C P"h'War H4rl .. ic Evid Ord!

"Keeping in view such status of the

company, and the "Function Test" as

prescribed and applied by a five member

Bench of this Court in the case of Abdul

Wahab and others v. HBL and others

(2013 SCMR 1383), authored by one of us

(Mien Saqib Nisar, 3), which test/criterion

is fully, meet in the present case, the

status of TIP could not prevent the

appellants from seeking constitutional

remedy as the company clearly falls within

the definition of a "person" as envisaged

by Article 199 of the Constitution. The

learned counsel for respondents, in

support of his second objection i.e. lack of

statutory service rules, retied upon the

judgment in the case of Fakhrur-Islam

Qureshi (Civil Appeal No.424 of 2009),

authored by one of us (Mian Saqib Nisar,

S

r 16

3.), whereby the said appeal was dismissed

on the ground that relationship between

the appellant, retired employee and TIP is

not goveined by statutory rules: Such

reliance, in our view, is wholly mis-placed

for thereason, that unlike in the present

case the appellants therein were seeking

pensionary benefits on the basis of

pensionar-y rules, which rules were non-

statutory. Whereas in the present case,

the appellants are seeking implementation

of the directive of the Prime Minister of

Pakistan and the decision of the cabinet

sub-corn mfttee for their regularizatj on sought to be enforced by the relevant

ministry."

Hence, a clear distinction was drawn by

the August Supreme Court between the

rights accruing on account of government

decision and internal policy of an

dtobe Irue'a) EXAMINER I

26

peshWErse752 organization having no statutory statutes.

uth,jizedU._r Similarly in M/o IPC through Secretary

and others Vs. Arbab Altaf Hussain

(2014 SCMR 1573) the August Supreme

Court in para 13 of the judgment very

clearly held that;

"As regards the other respondents are

concerned, without going into the question

whether a collateral attack could be made

by them qua the supersession of the

'7

Board, when primarily they were aggrieved

of their termination orders. Suffice it to

say these petitions were. liable, to be

dismissed for two simple reasons firstly

that their services were not governed by

any statutory rules and thus their writ

petitions were not competent in terms of

the law, laid down in the judgment

reported Abdul Wahab and others v. HBL

and others (2013 SCMR1383), secondly,

the employment(s) of the said respondents

admittedly was, contractual in nature and

their services were terminated after due

I't LEXAIM~NER

couXw Bench Pesh3' "9 cJ5 Evd Ord

4-0

notice as per their contractual terms and

conditions of service. And even on this

account the wrft petitions were

incompetent and had to fail.. It may be

added here, that their termination(s) was

made by the competent authority in the

Board; for example in the case of Arbab

Altaf Hussain, as stated earlier, notice was

served upon him and ultimately his service

was terminated by Director HR & A. who

as per the Board's non-statutory rules,

was the competent (authority) to do so.

Besides to their extent the rule of exercise

of de facto jurisdiction was attracted even

if the supersession of the Board was

assumed to be bad in law. So the writ

petitions filed by all other respondents, as

18

mentioned earlier, were liable to be

dismissed on these scores." A

22. Admiftedly the petitioners are the

employees, of the Board and the

employment of the petitioners at the Board

is not governed through any statutory

rules .and the respondents have agreed to

provide the petitioners with terminal

benefits, hence the present petitions are

not maintainable.

In the light of above, these petitions are

dismissed.

ExAM;NE—T )

26 SEP 2U

Peshawar hh Cot' Md. Bench Authodzed Under 75 Evd Ordns:

Announced. 08-08-2017 /Agfl.

) U D.G E

(AFtab)