MUHAMMAD ASIM And Other vs TELECOMMUNICATION And Others

1. The petitioners were appointed on daily wages basis as Telephone Operators in the Telephone and Telegraphic Department of the Government of Pakistan in early 1990 and were adjusted in BPS-7.

2. They were continued in the service as Telephone Operators as on daily wages/ad hoc of work charge since 1990 or on leave vacancy basis with or without artificial breaks. By order dated 18-1- 1997 the services of petitioner No.2 were terminated by respondent No. 2. Similarly, petitioner No. 1 was also threatened with the termination of service. Both the petitioners moved the writ petition for securing their service rights and calling in question the impugned action on the part of the respondent.

3. 2.The learned counsel for the petitioners submitted that the respondents were bound by law to regularise the services of the petitioners as permanent workmen and to keep them as such in the matter of their salary/wages/seniority and promotion, etc. He further submitted that the petitioners and similarly placed employees had been discriminated against in violation of Articles 25 and 27 of the Constitution of Pakistan inasmuch as a number of other employees who were recruited like that of the petitioners but subsequent to the petitioners and even other persons who were not in service had been regularised/appointed on regular-basis on political considerations under the directions of the Prime Minister's Secretariat, Islamabad, during the years 1995 and 1996. Not only that certain appointments were also made in 1997 on regular-basis by the respondents by ignoring the petitioners and other similarly placed employees in disregard of their seniority and experience.

3. Ch. Hameed-ud-Din, Advocate, learned counsel for the petitioners argued the case at length. He submitted that the Government Department of Telephone and Telegraphic was converted into Pakistan Telecommunication Corporation by Act No. XVIII of 1991 with effect from 15-12-1990 called the Pakistan Telecommunication Act. Subsequently, there were some legislative changes introduced for the re-organization of the Corporation and Ordinance No. XXIII of 1995 called the Telecommunication Ordinance was promulgated with effect from 7-3-1995 whereby the organization was split into four authorities as under:-

(i) Pakistan Telecommunication Authority;

(ii) Frequency Allocation Board; (i.e) National Telecommunication Corporation; and

(iv) Pakistan Telecommunication Company Limited.

4. Under section 12 of the Ordinance, the employees of the Corporation became the employees of Pakistan Telecommunication Company Limited and ceased to be the employees of the Pakistan Telecommunication Corporation from the date of the Company commenced its business, i.e., 31- 12-1995 when the Company was incorporated as a Public Limited Company under section 154(2) of the Companies Ordinance, 1984, by the Deputy Registrar of Companies, Islamabad. The learned counsel pointed out that now Act No.XVII of 1996 called the Pakistan Telecommunication (Reorganization) Act, 1996, has been enacted by the Parliament effective from 31-12-1995 which is in the terms of Ordinance No. XXIII of 1995. The learned counsel submitted that the petitioners were neither civil servants nor were entitled to any legal protection in respect of their terms and conditions of service as they had become employees of the Company. He relied on the case of Arif Ali v Government of Pakistan (1994 PLC (C.S.) 178). He also referred to the case of Amin Ahmad v.

5. Government of Pakistan (PLD 1996 Karachi 27) wherein it was held that after the completion of process of privatisation by the Government of Pakistan the employees of the Government became the employees of the Company. He further submitted that in any case all these employees who were employed on or after 1-1-1996 were the employees of the limited company to whom no legal protection was available in respect of the service conditions. The General Manager, L.T.R. (South)

6. (Muhammad Aleem) was also called for to provide the details of the employees who were otherwise appointed/regularised on permanent basis and were either appointed on daily wages/ad hoc/against leave vacancy/work-charge or otherwise subsequent to the petitioners with lesser length of total service. List was also called for of permanent incumbents who were not at all in service and were outsiders who were appointed on regular basis during the years, 1995, 1996 and 1997. He pointed out that in his Region about 481 employees were appointed on regular basis in to phases during 1995-1996 out of whom 56 were appointed/regularised as Telephone Operators. He admitted that most of such employees were initially appointed on work- charge/daily wages/ad hoc subsequent to the petitioners and a number of other employees with more length of service without having regard to their dates of appointments. He also admitted that a number of employees have been appointed during the years 1995, 1996 and 1997 from outside and that the petitioners and similarly other employees continuing as workers since 1990 on daily wages/work-charge/ad hoc or against the leave vacancies in various capacities were not considered for regularisation on permanent basis against the permanent vacancies. He frankly conceded that a number of other persons on daily wages/work-charge, etc. Junior to the petitioners and other employees were regularised on permanent basis or even the persons who were not in service were appointed on permanent basis on the directions of the Prime Minister's Secretariat during the years 1995-1996. Mr.Attiq-ur-Rehman, Director (Rules, Regulations and Recruitment) Headquarter, P.T.C., Islamabad, appeared in Court and stated that about 3,500 appointments were made on permanent basis in Punjab under the centralised scheme of recruitment under the directions of the Prime Minister's Secretariat. Such appointments were made of persons who were in service but without having any regard to their dates of appointments on daily wages or work-charged, etc., in various capacities such as Telephone Operators, Lineman, Assistant Lineman, etc. He also stated that appointments of 8,500 persons were made for Pakistan in to phases during 1995-96. He further disclosed that amongst these appointments 15 per cent were the appointments which were recommended by the C.B.A. Union of the P.T.C. Irrespective of the seniority or original appointment position of the employees/workers. Even the persons who were previously not in service were also appointed. It was further pointed out that a number of employees who were employed with or without artificial breaks for so many years have been terminated or likely to be terminated shortly.

7. 4.I have heard the learned counsel for the parties at length. It is a shocking state of affairs to know that a large number of persons were appointed in the Pakistan Telecommunication Corporation/National Telecommunication Company Limited under the orders of the Prime Minister's Secretariat in various capacities such as Telephone Operators, Linemen, Assistant Linemen, etc. Without considering the claim of the sittingemployees with much more length of service for regularisation or permanent appointment. It was arbitrary and discriminatory on the part of the respondents to have ignored to petitioners and other similarly placed employees from being considered for appointment on regular basis. The principle of first come first served or first come last go was to be applied in such like cases. The petitioners and other such employees who have rendered valuable service to the respondents could not be thrown out merely for the consideration that some other persons yielding influence on the political side had managed to get themselves appointed/regularised on permanent basis although they were either junior to the petitioners and other employees or they were not in service at all. The fundamental rights of the petitioners and other similarly placed employees guaranteed under Articles 2A, 25 and 27 of the Constitution of Pakistan were grossly violated by the respondents.

8. 5.The question of regularisation in service is required to be examined keeping in mind the historical as well as the Constitutional perspective during the pre-partition colonial rule, the growth in the country was trading and most of the large size industries were controlled by the British interest. The relationship between the employer and the employee was governed by the rule of hire and fire.

9. Those were the days of laissez fair when the contractual rights were placed above the human rights. The concepts of dignity of labour and just remuneration for work for workers were wholly alien. The workers were forced to work in appalling conditions at low wages without any job security. But " under our Constitution which specifically provides for enforcement of Islamic values and Islam being the State religion guarantees the social, economic, justice and fundamental freedoms and rights to the citizens. The employer is not allowed to dictate his terms of appointment taking advantage of the absence of the bargaining power in the employees and to force an employee to accept employment on take it or leave it terms offered by the employer. The human dignity and better conditions of E work with proper remuneration has also been secured by Articles 3 and 14 of the Constitution. The power of regularisation or otherwise has to be free from arbitrariness. It is to late in the day to take a position that a Company which is created by a Statute in contradistinction of a Company created under a Statute is not subject to the jurisdiction of the High Court under Article 199 of the Constitution. It is now well-settled that a Government Company created by the provisions of the Statute itself is amenable to the jurisdiction of the High Court. See the cases of Muhammad Aslam Saleemi v. Federation of Pakistan PLD 1977 Lah. 840; Mushtaq Ahmad v. The Secretary to Government PLD 1994 Lah. 417; Syed Mumtaz Shah v. Chairman, N.P.T.

10. 1994 PLC (C. S.) 810. In the case of State of Haryana v. Payara Singh 1992 (4) SCC (118), it was held that in the case of long continuance in service of work-charge/casual/daily wages workers, the presumption for regular need of service would arise obliging the authority concerned to consider with a positive mind the feasibility of regularisation. The petitioners and other employees who had rendered service with or without artificial breaks before 1-1-1996 on daily-basis /work- charge/casual or leave vacancy, etc., are entitled to be considered for permanent absorption in service. The termination of the petitioners and such other employees would be/will be invalid.

11. 6.At thin stage, the learned counsel for the respondents has objected that this Court may not grant any relief sup motu to the persons who are not the petitioners before this Court. I find that during the course of these proceedings serious irregularities and violations of the provisions of the Constitution have been noticed. There was no justification for the respondents to deprive the employees of their legitimate rights and expectations in service and to be passed over by those, employees or outsiders who had either less length of service than the petitioners o7 were not even in service were regularised under the directions of the Prime Minister's Secretariat. This is not a case of exercise of sup moor jurisdiction but the low paid employees have to be protected for their due rights of service. Even otherwise it is not conducive to the inexpensive dispensation of justice that each of such employees should be forced to engage a lawyer to pay his fee and other expenses for knocking at the doors of the Court when the same relief can be granted in these proceedings.

12. The objection of the learned counsel is, therefore, overruled.

13. 7.In this view of the matter, the impugned action if the respondents against the petitioners is declared to be without lawful authority and of no legal effect. The similar action on administrative grounds otherwise than as a penalty against all other employees/workmen Who save either been terminated from service recently or in the process of termination is declared to be without lawful authority and of no legal effect provided they were appointed before 1-1-1996 on daily wages/ad hoc/work-charge, etc., with or without breaks.

14. 8.The respondents are directed to formulate by 3(h of June, 1997, a policy for the purpose of consideration for regularizing of service of employees/workmen under them who were appointed fore 1-1-1996 on daily wages/ad hoc/leave vacancy, etc. And had rendered Service for 180 days or more with or without artificial break.

15. 9.The writ petition is accepted with no order is to costs.