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Appeals Nos. 110/1757, 538/118 of 1982 and 282/223 of 1983, decided on 15th January, 1984.

‑‑‑S. 4‑‑Service Tribunal only meant for civil servants and none else‑ Appellants having accepted and enjoyed status of employees of Punjab Urban Transport Corporation, a private limited Company, cannot be termed civil servants to claim jurisdiction of Tribunal.

Fayyaz Ali Khan v. Government of Pakistan and another 1971 SCMR 454 ref.

Muhammad Zaman Qureshi for Appellants.

Zia Mahmood Mirza, Muhammad Saleem Khan and Amiruddin Ansari for Respondents.

A.G. Humayun, District Attorney on behalf of the Government.

‑‑Messrs Abdul Salam, Bashir Ahmad Chaudhry and Abdul Ghafoor Lodhi, have filed these appeals under section 4 of the Punjab Service Tribunals Act, 1974, in which legal point involved is identical in nature, we are, therefore disposing of all the three appeals by our this single judgment.

2. In Appeal No. 110/1757 of 1982, Abdul Salam has impleaded the Secretary to Government of the Punjab, Services, General Administration (Transport Cell), Civil Secretariat, Lahore, the Managing Director, Punjab Road Transport Board, Lahore, Secretary to Government of Pakistan, Ministry of Communications, Pakistan Secretariat, Islamabad and the Director Finance, Punjab Urban Transport Corporation, Court Street, Lahore, as respondents, whereas in Appeal No. 583/118 of 1982, Bashir Ahmad Chaudhry has impleaded the Secretary to Government of Punjab, General and Information Department (Transport Cell), Civil Secretariat, Lahore, the Secretary to Government of Pakistan, Ministry of Communications, Islamabad and Managing Director, Punjab Urban Transport Corporation, Courts Street, Lahore as respondents and in Appeal No. 282/223 of 1983, Abdul Ghafoor Lodhi has impleaded the Government of Punjab, Services, General Administration and Information Department, Civil Secretariat, Lahore, the Punjab Road Transport Board, Egerton Road, Lahore through its Managing Director, the Punjab Urban Transport Corporation, Court Street, the Mall, Lahore through its Managing Director and Director Operations, Punjab Urban Transport Corporation, Court Street, the Mall, Lahore, as respondents.

3. By virtue of these appeals, appellant Abdus Salam has prayed that the respondents be directed to grant him L.P.R. with pay in accordance with Rules and likewise pay, pension, gratuity and Provident Fund on his retirement from service; whereas, Bashir Ahmad Ghaudhry (appellant) has prayed that order of his dismissal issued by respondent No. 3 vide order, dated 15‑7‑1982, be declared as illegal, without lawful authority and of no legal effect and he be re‑instated in service with full back benefits and Abdul Ghafoor Lodhi (appellant) has prayed that the order issued by respondent No. 4, dated 23‑2‑1983/7‑3‑1983, be set aside and respondent be directed to re‑instate the appellant in service with full back benefits and treat him as a Government servant.

4. In all these appeals, the stand taken by the respondents is common in which it has been stated that as all the three appellants being employees of the Punjab Urban Transport Corporation, which being a Private Limited Company incorporated under the Companies Act, 1913, therefore, they cannot be treated as Civil Servants and thus are excluded from the jurisdiction of this Tribunal, which has been set up to deal with the matters of all the civil servants in the province only.

5. Brief facts of these appeals are as under:

Abdus Salam:

He was employed in the Government Transport Service, Rawalpindi on 7‑3‑1951 and after the formation of Punjab Road Transport Board in 1952, he became the employee of the Board. But on 1‑2‑1977, when Punjab Urban Transport Corporation (Private Limited Company) was incorporated, the appellant became the employee of the Punjab Urban Transport Corporation and his last post was of Senior Ledger Keeper.

The appellant's services were extended for a period of one year from 7‑3‑1981 to 6‑3‑1982 beyond the age of 59 years on attaining the age of 60 years in accordance with the rules of the Corporation. The appellant applied for L.P.R. for 120 days under the Corporation Rules; before his retirement which was granted to him from 7‑11‑1981 to 6‑3‑1982. The appellant submitted an application, dated 9‑12‑1981 to the District Manager, wherein he took a plea that since he was Government servant, he was entitled to pension benefits in accordance with the Rules of the Government. The District Manager, informed the appellant that he was a servant of the Corporation and was only entitled to the benefits under the rules of the Corporation.

Bashir Ahmad Chaudhry:

He was initially appointed as Cashier in Government Transport Service, Rawalpindi on 5‑12‑1951 and on the formation of Punjab Road Transport Board in 1952, his services were transferred to the Board. The appellant was permanently transferred to the Punjab Urban Transport Corporation w.e.f. 31‑3‑1977, to which he never objected and remained on that strength throughout. However, he was charge -sheeted on certain allegations, which were enquired into by the Enquiry Officer and after holding independent inquiry and affording defence to the appellant, held that the charges of unauthorised absence and producing fake medical certificates were proved. After the report of the Enquiry Officer, action was taken against the appellant and he was retired compulsorily from service by the Managing Director, Punjab Urban Transport Corporation, Lahore vide his order, dated 15‑7‑1982. However, the history of the case reveals that there were some litigations on the behest of the appellant before the Labour Court/Labour Appellate Tribunal and ultimately the matter came before Justice Irshad Hasan Khan, of the Lahore High Court, in writ petition moved by the Punjab Urban Transport Corporation. The matter was finally resolved by the said learned Judge of the High Court vide his judgment, dated 16‑2‑1982, that the Corporation was the Employer of the employees and the concerned District Managers of the Depots of the Corporation were competent to dismiss or take any disciplinary action against the employees originally appointed by the Board and serving in any of the Depots of the Board at Lahore, Rawalpindi and Islamabad but subsequently transferred to the Corporation on 1‑2‑1977; in committing a misconduct while performing their duties in the Corporation. It was held by the learned Judge of the Lahore High Court that the employees were estopped by their conduct to challenge the status of the Corporation as their employer for taking disciplinary action against them and claiming the Board as their employer for the aforesaid purpose.

Abdul Ghafoor Lodhi:

The appellant was appointed as Junior Clerk on 8‑12‑1949 in the Punjab Transport Service, Rawalpindi, and was promoted as Senior Clerk on 1‑5‑1951. The services of the appellant were transferred to the Punjab Road Transport Board and he became the employee/ servant of the P.R.T.B. The appellant was confirmed as Senior Clerk and then promoted as officiating Superintendent in N.P.S. 11 w.e.f. 1‑12‑1971, and confirmed on 21‑5‑1973. Finally he was promoted as Superintendent in N.P.S.‑13 on 17‑1‑1976. The appellant was issued a notice on 23‑2‑1983 to the effect that according to his date of birth as entered in the column provided for the same, he attained the age of superannuation on 31‑3‑1983, therefore, he was liable to be retired from service. However, the appellant was retired from service w.e.f. 31‑3‑1983 on the expiry of the notice so served upon him on 23‑2‑1983. He was allowed leave preparatory to retirement from 10‑3‑1983. Hence these

appeals.

6. We have heard the learned counsel for the appellants Mr. Muhammad Zaman Qureshi as well as learned counsel for the respondents Mr Zia Mahmood Mirza and learned District Attorney on behalf of the Government and have perused the entire record carefully with their assistance

7. Mr. Zia Mahmood Mirza, learned counsel for the respondents has raised preliminary objection by submitting that the appellants for all intents and purposes, were the employees of the Punjab Urban Transport Corporation, which was a corporate body, established under the Companies Act, 1913 and could not be termed as civil servants, therefore, the jurisdiction of this Tribunal was excluded. For this he has relied on the judgment of Mr. Justice Irshad Hasan Khan Judge of the Lahore High Court, in Writ Petition No. 3744 of 1979, which according to the learned counsel for the respondents, is of a great pursuasive value, wherein this matter has been dealt with extensively by the learned Judge after hearing the arguments of Mr. Muhammad Zaman Qureshi, now learned counsel for the appellants, with the findings that all the appellants, for all practical purposes were the employees of the Corporation and were also estopped from raising a fresh plea of their being servants of the P.R.T.B. and thus ineligible to the status of civil servants. Learned counsel for the appellants Mr. Muhammad Zaman Qureshi, has submitted that there was no estoppel against the statute and the fact that no protest lodged by the appellants would not affect their rights to agitate this question of law once again. It has been further argued that when the arrangements were finalised between the Board and the P. U. T. C. for the transfer of the staff of the Board to the Corporation, decision was taken in unilateral manner without consulting the will of the employees, therefore, the same was not binding upon them. He has also relied on the case of Fayyaz Ali Khan v. Government of Pakistan and another 1971 S C M R 454.

8. We have given our anxious thought to the arguments submitted by both the parties at length to justify their stand so taken by them. While assessing the strength of the arguments we will like to refer to the provision laid down in rule 137(i) of the Motor Vehicles Rules, 1969, as well as the decision taken on 28‑1‑1977 and 31‑1‑1977, between the P.R.T.B. and the P.U.T.C., what we find is that the entire assets of Board stood transferred to the Corporation and the Board ceased to have any authority over those depots, assets as well as of its employees as the said authority stood vested in the Corporation according to the decision so taken by them on 1‑2‑1977. It will be useful to mention at this stage that all the employees so transferred from the Board to the Corporation accepted the status as such; and did not raise this issue even after a long passage of time as this would be a case of approbation and reprobation on their part.

9. While referring to the judgment in Fayyaz Ali Khan case so relied upon by the learned counsel for the appellant, we have no hesitation to hold that the same is distinguishable and benefit of the same cannot be allowed in favour of the appellants on the ground that Fayyaz Ali Khan was a Government servant and his services were transferred by Government to the Road Transport Corporation, in the form of deputation and thus he was entitled to the constitutional protection available at the relevant time; whereas in the case of the appellants no such constitutional protection was available to them after coming into force of Constitution of 1973, which specifically took away these specific privileges from the Government servants. Moreover, we have fully satisfied ourselves, that there is nothing on. the record to show that the appellants were sent on deputation to the Punjab Urban Transport Corporation and thus would be entitled to be treated as Civil Servants. Therefore, it would be incumbent upon the appellants to show that they were civil servants as defined in the Punjab Civil Servants Act, 1974. The appellants have enjoyed the status of the employees of the Punjab Urban Transport Corporation for the last 30 years, therefore, they would in no manner, be termed as civil servants, in order to claim jurisdiction of this Tribunal, which is only meant for the civil Servants and none else. We are also persuaded in our findings by the elaborate judgment of Mr. Justice Irsdad Hasan Khan, Judge of the Lahore High Court, which we have carefully perused and which has clearly held that the appellants for all purposes were the employees of the Road Transport Corporation and were estopped from agitating against their status as employees of the Punjab Road Transport Board, which they have accepted for the last 30 years, or the principle of approbation and reprobation.

10. In view of the above detailed discussions we proceed to dismiss all the three appeals as not maintainable and uphold the objection of Mr. Zia Mahmood Mirza, learned counsel for the respondents. There will be no order as to costs.

M.I.

Appeals dismissed.

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