IN THE HIGH COURT OF SINDH,

CIRCUIT COURT, HYDERABAD.

 

Present :

1. Mr. Justice Irfan Saadat Khan

2. Mr. Justice Aftab Ahmed Gorar

 

 

C.P NO.D- 1172 OF 2010

 

 

Date of hearing:                 26.02.2013.

Date of decision:                05 .03.2013.

Petitioners:                   Through Mr. Abdul Ghani Khan, Advocate.

 

Respondents:                Through Choudhry Bashir Ahmed Gujjar, Assistant A.G.

 

                                      Mr. Muhammad Arshad S.O (Legal) Finance Department, Government of Sindh Karachi.

 

 

O R D E R

 

IRFAN SAADAT KHAN, J:-  This Constitutional Petition has been filed with the following prayers:-

A.   To order the Respondents to pay the aforesaid legal dues of the Petitioners.

B.    Costs of the Petition may be saddled upon the Respondents.

C.    Any other relief(s) which this Honourable Court deems fit, just and proper in favour of the Petitioners.

2.       Briefly stated the facts of the case are that the Petitioners were employees of Sindh Road Transport Corporation(SRTC) (Since defunct). That after closure of S.R.T.C the services of all employees were dispensed with vide Notification No.SO(T-I)13-39/99/823 dated 06.12.1999. That the Petitioners were then reemployed on contract basis with effect from 07.12.1999 till further orders on gross salaries as they were drawing on 02.12.1999 vide order No.SRTC/E-1/99/3096 dated 08.12.1999. That the services of the Petitioners were dispensed with w.e.f. 06.12.1999 vide Notification NOSO(T-I)13-39/99/823 dated 06.12.1999 under Golden Handshake Scheme executed between the Government of Sindh and Collective Bargaining Agent (CBA) of Sindh Road Transport Corporation (SRTC). Since in order to complete the winding up process of S.R.T.C the said Corporation needed some staff therefore, the Petitioners were retained in service as per order No.SRTC/E-1/99/3096 dated 8.12.1999. That according to the said letter dated 08.12.1999 the Petitioners were retained on contract basis on their gross salaries as stood on 02.12.1999 for preparation of service benefits, including Golden Handshake Scheme of SRTC(defunct) and to complete privatization process. However, the period of contract was not specified in the said order. That the Respondent No.1 then revised basic pay scale 2001 and increased 15% Special Relief 2003-2004 applicable to all civil servants including the present Petitioners vide Provincial Government Notification No.FD(SR)-1 C51/2001 dated 06.03.2002. That the said benefit was also available to the Petitioners but the benefits of revised pay scale 2005  i.e 15% increase in Dearness Allowance but annual increase 15% Dearness Allowance 2006, 2007, 2008 and 2009 have not been paid by the Finance Department to the Petitioners. That thereafter the services of the Petitioners were terminated without any notice w.e.f. 30.06.2010 vide Notification No.SO(TI)(Gen)/4(127)/2010. That it is against the said notification that the present petition has been filed.

 3.      Mr. Abdul Ghani Khan learned Senior Counsel has appeared on behalf of the Petitioners and stated that the services of the Petitioners have been terminated vide Notification dated 30.06.2010 without providing them an opportunity of hearing. He further submitted that the Petitioners were paid salaries without including annual increment and other benefits, which they were legally entitled to and hence the Petitioners have been deprived of their legal rights. He further stated that the services of the Petitioners were terminated without giving them one month’s notice, which is a mandatory requirement. He stated that the Petitioners have completed their services for more than 10 years and there were no complaints against them hence they are entitled not only for the annual increment w.e.f. 01.12.2000 to 01.12.2009, gratuity, leave encashment and one month’s notice and are also entitled for receiving revised pay thereof. He further submitted that the Petitioners are also entitled to have the service benefits, which are available to other government employees announced by the Government from time to time. He submitted that the Petitioners approached the Respondents a number of times but no heed in this regard was paid. He in the end submitted that since the Petitioners are entitled for the benefits, as available to them under the law, the same may be granted to them. He further submitted that some co-employees were not only allowed annual increments etc but were also approved for gratuity as per the terms of erstwhile S.R.T.C hence according to him, discriminatory treatment is being given to the Petitioners by the Respondents. In support of his above contentions the learned Counsel has relied upon the cases of ZAIN PACKAGING INDUSTRIES LIMITED, KARACHI V. ABDUL RASHID and 2 others (1994 S C M R 2222) and WASEEM ALI V. CHIEF ADMINISTRATOR AUQAF, PUNJAB and 2 others (2011 P L C (C.S.) 1630)

4.       Mr. Muhammad Arshad S.O (Legal), Finance Department, has appeared as a Focal Person on behalf of the Respondent No.2 and vehemently denies the averments of the Counsel for the Petitioners. He stated that Petitioners have no locus standi to file the present petition since they were appointed on gross salary and on contract basis hence they cannot claim any benefits as available to other regular government employees. He further submitted that hence the Petitioners are neither entitled for gratuity nor other benefits, fringe benefits etc. since they were given Golden Handshake and whatever amounts were due were paid to them. He further submitted that so far as the case of other co-employees are concerned, the same falls on totally different pedestal and hence the Petitioners cannot claim any benefit in this respect. He in the end prays that since the Petitioners have approached the Court with unclean hands, the instant petition is liable to be dismissed.

5.       Assistant Advocate General Sindh Mr. Choudhry Bashir Ahmed Gujjar has adopted the arguments of the Section Officer, Finance Department and stated that since the Petitioners were not regular employees hence they are not entitled for any benefit as are available to regular government employees.

6.       We have heard all the parties at considerable length and have perused the record and the decisions relied upon.

7.       It is noted from the facts of the case that in the year 1970 the Government of Sindh established S.R.T.C for operation of the buses in the Province to facilitate the people and when the Corporation started running into losses the Government decided to close down the operation of the said Corporation, by giving all employees Golden Hand Shake.

8.       In order to appreciate the facts of the instant petition it would be pertinent if certain Notifications/Orders etc. are reproduced. For the sake of brevity the same are reproduced herein below:-

                                       “NOTIFICATION

 

No.SO(F.D)13-30/99: With the approval of the competent authority and in pursuance of the agreement executed with the Officers Association/CBA of Sindh Road Transport Corporation the Government of Sindh is pleased to order the closure of the operations of SRTC and termination of the services of all employees of SRTC w.e.f. 06.12.1999(AN) on terms and conditions of “Golden Hand Shake” contained in the Memorandum of Agreement dated 06.12.1999.

2.       The Chairman, SRTC shall issue termination order of each employee separately.”

 

MEMORANDUM OF AGREEMENT

This agreement is executed at Karachi on the 06th day of December 1999 between the Governor of Sindh (hereinafter referred to as the Government) action through the Secretary to Government of Sindh Transport Department of the one part and the representatives of the CBA, Action Committee, Officers Association of the SRTC (herein after jointly referred to as the Committee) acting through their respective General Secretary/President/Members of the other part.

Whereas the Government have decided to close operation of the Sind Road Transport Corporation (SRTC) and dispense with the services of the employees of the Sind Road Transport Corporation herein after referred to as the employees.

AND Whereas the parties have agreed to implement the above decision subject to the following terms and conditions:

Now, thereafter this agreement witnesses as follows:

1.       The services of all employees will be dispensed with on the cut-off date on 06.12.1999, and they shall not claim salary, Eid Award, Medical Bills, Welfare Fund & Workshop Commission as per CBA Agreement for the period w.e.f 03.12.1999 to 06.12.1999.

2.       All employees whose series are terminated on the cut- off date shall be entitled to: -

(a)     the Gratuity admissible under the rules and regulations applicable to him plus 01 basic salary for each year served as Golden Hand Shake, for the whole period of service (Six Months or more to be treated as full year).

(b)     the payment of contributory Provident Fund (C.P.F), Encashment of Leave as due, unpaid dues of Salaries, Eid Award, Medical Bills, Welfare Fund and Workshop Commission as per rules/regulations applicable and agreements with CBA (SRTC).”

 

ORDER.

 

          In pursuance of Government of Sindh, Labour and Transport Department, notification No.SO(T.I)18-99/888 dated 6.12.1999, services of employees of SRTC have been DISPENSED w.e.f. 2.12.1999 under Golden Hand Shake Scheme. Therefore, following Skelton Staff of defunct SRTC is hereby engaged on contract basis w.e.f. 7.12.11999 till further orders on their gross salary as stood on 2.12.1999 for preparation of service benefits including Golden Hand Shake of SRTC employees and task to complete privatization/closure of SRTC. The period of contract service is not specified and it can be terminated on either side at any time without notice and without assigning reasons.”

 

 

“To,

 

The Accountant General Sindh

Karachi.

 

 

SUBJECT:-REVISED PAY SCALE 2001-CLARIFICATION.

 

I am directed to refer to this Department’s O.M. No. FD(SR-I)1-51/2001 dated 6th November, 2001, on the subject noted above and to clarify that:-

 

i)            Revised pay scales 2001 will also be applicable to the contingent paid staff and contract employees working under the Provincial Government.”

 

“OFFICE MEMORANDUM

SUBJECT:    GRANT OF ADHOC RELIEF @ 15% OF BASIC PAY

          The Government of Sindh has been pleased to sanction with effect from 01st July, 2004 till further orders an Adhoc Relief @ 15% of the basic pay per month to all the Provincial Government employees in BPS-1 to BPS-22 including Contingent paid staff, Retired Civil Servants re-employed against Civil posts in Basic Pay Scales on standard terms and conditions of Contract employees:-

2.       The amount of this Ad hoc Relief:-

i)       will be subject to Income Tax.

ii)      will be admissible during leave and entire period of LPR except during extra-ordinary leave.

iii)     will not be treated as part of emoluments for the purpose of calculation of pension/gratuity and recovery of House Rent.

iv)     will not be admissible to the employees during the tenure of their posting/deputation abroad.

3.       The above Relief should be accommodated within the budgetary allocation for the year 2004-05 by the respective Administrative Departments and no supplementary grants would be given on this account.”

 

 

 

                        “OFFICE MEMORANDUM

 

SUBJECT:    REVISION OF BASIC PAY SCALES AND FRINGE BENEFITS OF CIVIL EMPLOYEES (BS-01 TO 22) OF THE FEDERAL GOVERNMENT (2005) – CONTINGENT ESTABLISHMENT WORKING ON REGULAR BASIS AND CONTRACT EMPLOYEES.

 

          I am directed to refer to this department’s O.M. No.FD (SR-I)1(32)/2005, dated 14th July, 2005 on the subject noted above and to state that the Revised Pay Scales 2005 will also be applicable to all the Contingent Paid Staff and Contract Employees working in the Provincial Government of Sindh w.e.f. 01.07.2005.”

 

OFFICE MEMORANDUM

 

SUBJECT:    GRANT OF DEARNESS ALLOWANCE @ 15% OF BASIC PAY.

          The Sindh Government has been pleased to sanction with effect from 1st July, 2006 and till further orders in Dearness Allowance@ 15% of the basic pay p.m to all the civil servants in BPS-1 to BPS-22 of the Provincial Government as well as the contingent paid staff, contract employees employed against civil posts in Basic Pay Scales on standard terms and conditions of contract appointment.

 

 

2.                The amount of this Dearness Allowance:-

i)       will not be treated as part of emoluments for the purpose of calculation of pension / gratuity and recovery of House Rent.

ii)      will not be admissible to the employees during the tenure of their posting / deputation abroad.

iii)     will be admissible to the employees on their repatriation from posting, deputation abroad at the rate and amount which would have been admissible to them had they not been posted abroad.

iv)     will be admissible during leave and entire period of LPR except during extra ordinary leave.

3.                The above Dearness Allowance should be accommodated within the budgetary allocation for the year 2006-07 by the respective Departments and no supplementary grants would be given on this account.”

 

 

“OFFICE MEMORANDUM

SUBJECT:    INCREASE IN BASIC PAY & ALLOWANCES OF CONTINGENT ESTABLISHMENT WORKING ON REGULAR BASIS AND CONTRACT EMPLOYEES.

I am directed to refer to this department’s O.M of even number dated 22/07/2008 and in pursuance of Finance Division’s O.M. No.F2(1)R 1/2006, dated 21st July, 2008, it is to clarify that the increase in basic pay would also be applicable to all contingent paid staff and contract employees of this Provincial Government paid from the Civil Estimates subject to the condition that they are holding appointments against posts and drawing pay in basic pay scales.”

“OFFICE MEMORANDUM

SUBJECT:    GRANT OF AD-HOC RELIEF ALLOWANCE – 2009 TO ALL CIVIL EMPLOYEES.

 

          Government of Sindh has been pleased to sanction w.e.f. 01-07-2009 and till further orders, an Ad-hoc Relief Allowance–2009 to all civil employees of the Provincial Government including cotingent paid staff and contract employees employed against civil posts in Basic Pay Scales on standard terms and conditions of contract appointments, paid from Civil Estimates, as detailed below : -

          BPS 1 – 16             . .       20% of the basic pay

          BPS 17 – 22           . .       15% of the basic pay.”

“N O T I F I C A T I O N

NO.SO (T-1/Gen) / 4(128) / 2010:- In pursuance of directives of the Chief Minister, Sind and with the approval of the Competent Authority, the services of the following officers / officials who were retained on contract base, to complete the left over work of Sindh Road Transport Corporation, SRTC (Defunct) are hereby terminated with immediate effect: -

 

9.       Perusal of the above referred Notifications/Orders etc. would reveal that S.R.T.C was closed down w.e.f. 06.12.1999 and its employees were terminated on the terms and conditions of Golden Hand Shake Scheme, which was duly agreed between the Governor of Sindh acting through the Secretary to Government of Sindh Transport Department and Representatives of the C.B.A Action Committee, Association Committee and the Officers Association and the Petitioners admittedly were part and parcel of the C.B.A, Action Committee representing the employees of S.R.T.C. It has categorically been mentioned in the said agreement entered between the parties on 06th December 1999 that the Government have decided to close down the operation of S.R.T.C and dispense with the services of the employees of S.R.T.C on the stipulated conditions and one of the condition among others was that services of all the employees will be dispensed with on the cut-off date i.e 06.12.1999 and that they shall not claim any salary, Eid Award, Medical Bills, Welfare Fund & Workshop Commission etc. It was also agreed between the parties that all those employees, who were terminated, shall however be entitled to the gratuity admissible under the rules and regulations applicable to them plus one basic salary for each year served as Golden Hand Shake for the whole period of service. It was further agreed that the payment of Contributory Payment Fund (C.P.F), encashment of leave and other benefits would also be paid as per rules and regulations. It was also agreed that all the payments of the gratuity C.P.F, leave encashment, Golden Hand Shake shall be paid to them by 06.12.1999 and in case of non-payment they would be entitled for the additional payment thereof. It is also evident from the record that after the said agreement the services of the defunct employees of the S.R.T.C stood dispensed with however, in order to complete the task of privatization/closure of S.R.T.C Skeleton Staff was re-appointed exclusively on contract basis w.e.f 07.12.1999 till further orders on their gross salary as stood on 02.12.1999 and it was also mentioned in the order dated 08.12.1999 that though the period of contract is not specified however it can be terminated by other side at any time without notice and without assigning any reason.

10.     The Petitioners by virtue of order dated 08.12.1999 were among the persons, who were re-employed purely on contract basis with the conditions as mentioned in the said order (The contents of which have been mentioned supra). It is also an undeniable fact that the Accountant General Sindh, Secretary Finance Department, thereafter by virtue of various clarifications have mentioned that the formula of revised pay scales of the Government Employees would also be applicable to the contingent paid staff and contract employees working under the Provincial Government. These Clarifications/Office Memorandums granting ad hoc relief to the regular employees as well as contingent and contract employees were revised from time to time granting ad hoc relief. It is also noted that the employees of S.R.TC received substantial amounts in the shape of Golden Hand Shake at the time of closing of the defunct Corporation.  It is noted from the counter affidavit and the averments made by the Section Officer (Legal) Finance Department that the Respondents have nowhere denied that the Petitioner were the contract employees of the defunct S.R.T.C, the only objection raised on behalf of the Respondents is that since they were engaged purely on contract basis on a fixed pay and since they were not Government Employees hence they have no right to claim benefits as available to the other Government Servants. It is also an admitted position on behalf of the Respondents that annual increments/revised pay scales were given to the Petitioners for the years 2000 to 2004 however the said revised pay benefit was not given from 2005 till 2009 on the ground that they were not Government Employees. It is strange to note that on the one hand the Respondents state that the Petitioners are not Government Employees therefore, are not entitled for the same however, on the other hand state that they were granted ad hoc relief revision up-till the year 2004 purely on humanitarian ground which reply appears to be fallacious on their part. As, in our view, the pertinent issue involved in the petition is that admittedly the Petitioners were contract employees and the said benefit of revision in pay scale is available to both regular Government Employees as well as contingent paid staff or contract employees, as evident from the various Office Memorandums issued by the Finance Department, Government of Sindh, from time to time hence the stand taken by the Respondents that the Petitioners are not entitled for the annual increase in pay after 2005 appears to be totally incorrect and illegal, as the said increments are never given on humanitarian ground rather the increments, revised pay scales are always given as a matter of policy. Hence the rebuttal/reply given by the Respondents that the Petitioners were not given the benefit of revised pay scales since they were not the Government Employees appears to be totally incorrect.

11.      It is also evident from the record that in case of some employees of K.P.T (Karachi Transport Corporation) the arrears of those employees were ordered to be paid to them hence in our view the Petitioners are also entitled for getting the said incremental amounts not paid for the years 2005 to 2009. On perusal of these Office Memorandums would clearly depict that the said annual increase in salary is available to contract employees also which fact has not been denied and controverted by the Respondents hence we are of the view that the Petitioners are entitled for the said annual increase in their pays from the year 2005 to 2009 and the Secretary, Finance Department, Government of Sindh is hereby directed to prepare a working in this regard and to clear the dues of the Petitioners within a period of 45 days from the date of receipt of this order and to furnish report in this regard to the Additional Registrar of this Court.

12.     Now coming to the second limb of the argument of the learned Counsel that the Petitioners are also entitled for gratuity, leave encashment and one month’s notice, as per notice prior to termination of their service, here we tend to disagree with the submission made by the learned Counsel for the Petitioners. Since it is quite evident from the record that the Petitioners were contract employees and they had already obtained their dues etc. in the shape of Golden Hand Shake hence, in our view, are not entitled for any gratuity, leave encashment etc. We also tend to disagree with the Counsel representing the Petitioners that one month’s notice before termination of the Petitioners was required, as it has categorically been mentioned in the order dated 08.12.1999, through which they were engaged on contract basis, that their employment can be terminated at any time without notice and without assigning any reason. Hence in our view no vested right in this regard could be claimed or have created so far as the gratuity, leave encashment etc. is concerned. The decisions relied upon by the learned Counsel are found to be quite distinguishable on facts.

13.     We were able to lay our hands on a decision given by a Division Bench of this Court in the case of Dr. ISHAQUE MUHAMMAD SHAH VS. PRESIDNET, NATIONAL BANK OF PAKISTAN and 2 others (2010 P.L.C 748) wherein it was observed as under:-

From the above discussion, the only thing that is established is that Petitioner was appointed as part time Medical officer on retainership fee which was purely a temporary or contractual employment liable to be terminated at any time without any notice and that Petitioner having been separated at the age of 60 years, apparently no violation of contract of employment was made by the Respondent. Being not a permanent employee of the Respondent, Petitioner was also not entitled to payment of pension and gratuity so also leave encashment and that Respondent seems to have sufficiently compensated the Petitioner by extending above noted benefits on his separation.

 

14.     Perusal of the above decision would clearly reveal that since the Petitioners were contract employees and were employed on the term that their services would be terminated at any time without any notice and without any reason hence in our view the Petitioners are neither entitled for any gratuity nor any leave encashment or the Respondents were under the legal obligation to issue any one month’s notice prior to their termination or to assign any reason for terminating them in this regard therefore, so far this aspect of the petition is concerned we dismiss the same.

15.     The upshot of the above discussion is that (1) the Petitioners are entitled to annual increase in their pay from 2005 to 2009 and the Respondent No.2 shall issue them their arrears in this regard within a period of 45 days of the receipt of this order as mentioned in Para-11 of our order, and (2) the Petitioners are not entitled either for any gratuity or leave encashment or any notice prior to their termination as mentioned in Para-14 of our order.

          The petition is therefore, partly allowed in the manner as stated above.        

 

                                                                             JUDGE

                                                JUDGE