PAKISTAN INTERNATIONAL AIRLINES CORPORATION vs AZIZ-UR-REHMAN

MAQBOOL BAQAR, J.---Brought into question through the above appeal, with the permission of this Court, is the judgment dated 10.7.2013, passed by a learned Division Bench of the High Court of Sindh, whereby the respondent No.1 's Constitution Petition bearing No.D-1073 of 2009 was allowed with a direction that the said respondent, being affected of MLR-52, shall be treated by the appellant as have the twenty three other affected of MLR-52 been treated by them.

2. The relevant facts of the case, in brief, are that under MLR-52, the services of the respondent No.1 along with about 300 other employees were dispensed with on 24.8.1981. However , upon review of the cases of such affected by the Review Board constituted by the Government of Pakistan, the said affected were re-employed. Through letter dated 28.2.1990, respondent No.1 was offered such reemployment, which offer was accepted by him and through appointment letter dated 10.4.1990 he was accordingly re-employed. The appointment was clearly a fresh appointment and was made on the terms and conditions as contained in the appointment letter . The respondent No.1 was accordingly issued a fresh employee number whereas clause 6 contained as in the appointment letter clearly provided that on reemployment respondent No.l's seniority will be fixed from the date he joins his duty. The respondent No.1 continued to serve the appellant-corporation as such, and on reaching the age of supreme superannuation retired from service of the corporation on 03.6.2003. On his retirement respondent No.1 was paid his pension and other retirement benefits as per his entitlement. The case of the respondent No.1 before the learned High Court was that he has not been treated by the appellant-corporation at par with certain other affected of MLR-52. It was contended that the services of those other employees also were dispensed with under MLR-52 and like all other such affected, those few were also recommended by the Review Board for re-employment, however , such privileged ones filed a petition before this wherein, the appellant-corporation by way of a compromise agreed to re-employ them with back benefits. The respondent No.1 sought the same treatment to him also. Through the impugned judgment, the learned Division Bench allowed the petition as mentioned above.

3. On 27.12.2013, leave to appeal was granted by this Court in the present case to examine as to whether the constitution petition filed by respondent No.1, in view of the judgment in the case of Pakistan Defense Officers'

Housing Authority v . Jawaid Ahmed ( 2013 SCMR 1707 ), was maintainable before the learned High Court.

4. Mr. Khalid Javed, learned ASC for the appellant-corporation at the very outset submitted that in view of a plethora of judgments including, Abdul Wahab and others v. HBL and others (2013 SCMR 1383 ), Pakistan International Airlines Corporation and others v. Tanweer-ur-Rehman and others (PLD 2010 SC 676), and the latest judgment of this Court in the case of PIA Corporation v. Syed Suleman Alam Rizvi and others (2015 SCMR 1545 ), wherein it has been held that since the relationship between the appellant-corporation and its employees is not governed by any statutory rules and is that of master and servant, therefore, a constitution petition relating to a services matter does not lie against the appellant-corporation. The learned counsel further submitted that the respondent No. l's petition before, the learned High Court also suffered from lases, as through such petition the petitioner challenged the terms and conditions of his re-employment agreed by him and were in force since 10.4.1990, and after enjoying all the perks and privileges in pursuance of such terms and conditions over a period of 13 years and that too after his retirement. Learned counsel further submitted that since respondent No.1 after serving for 13 years after his reinstatement, has, upon retirement, received all his retirement benefits, the matter pertaining to his service/retirement benefits could not have been entertained, the same being a past and closed transaction. He further submitted that the petition of the respondent No.1 before the learned High Court was also hit by the principle of res-judicature, as the issue decided through the impugned judgment was earlier raised by various employees of the appellant-corporation, including the respondent No.1, and has conclusively been decided by this Court through order dated 13.5.2002 passed in Civil Review Petitions Nos.7-K to 13-K of 2001 in Civil Petitions Nos.365-K, 373-K to 375-K and 383-K to 385-K of 2000 on 13.5.2002 wherein the respondents, for seeking back benefits relied upon the cases of certain affected, namely , Ghulam Mustafa Shah, Inayat Rasool, and Akbar Khan, who were given full back benefits on re-employment. However , this Court whilst observing that since the Review Board did not recommend re-in statement of the respondent and recommended their re-employment instead, held that those respondents were entitled to be dealt with according to the offer made by the petitioner- corporation through letter dated 20.5.1990 which re-employment was accordingly accepted by the respondents.

The respondent No.1 despite the above fact and by in fact actively concealing the same obtained the impugned judgment and that too on the ground of alleged discrimination which did not find favour with this Court in the a fore- noted order . Learned counsel urged this Court to allow the appeal and set aside the impugned judgment.

5. The position that emerges from the foregoing is that respondent No.1. Accepted his re-employment, on the terms and conditions, as contained in the appointment letter dated 10.4.1990 and continued to serve the appellant- corporation as such until he reached the age of superannuation and retired on 30.6.2003 and received all the retirement benefits. The petition disposed of through the impugned judgment was, however , filed by him on 04.6.2009 i.e. After a passage of about 19 years from his re-employment, calling in question, the terms of such re- employment. The petition, therefore, clearly suf fers from lases.

6. Since the respondent No.1 accepted the terms and conditions of his re-employment, continued to serve the appellant-corporation as such for 13 years, until he retired, and also accepted and received the retirement benefits, his claim for back benefits was also hit by the doctrine of past and closed transaction.

7. Above all, such claim of various affected including that of respondent No.1 had already been rejected by this Court through its order dated 13.5.2002 passed in Civil Review Petitions Nos.7-K to 13-K of 2001 in Civil Petitions Nos.365-K, 373-K to 375-K and 383-K to 385-K of 2000 in which proceedings also, the affected including respondent No.1 alleged discrimination and sought back benefits on the ground that certain other affected were allowed such back benefits. However , respondent No.1 succeeded in obtaining the impugned order by concealing rejection of his earlier claim by this Court. The impugned judgment in the facts and circumstances of the case, more particularly , for the reason that the same is in conflict with and violation of the a fore noted order of this Court and is hit by the principle of res judicature is set aside and the appeal is allowed with no order as to cost.