ORDER SHEET

IN THE HIGH COURT OF SINDH, KARACHI

Constitutional Petition No.D-2224 of 2007

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Date Order with signature of Judge

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1. FOR KATCHA PESHI

2. FOR HEARING OF CMA No.8143/2009

29.3.2010

Petitioner in person.

Mr. Ashiq Raza D.A.G. for respondent No.1.

Mr. Gohar Iqbal, Advocate for respondents No.2 to 4

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Only grievance of petitioner is that he should get medical benefit as he is an old retired employee of the respondent Nos.2 to 4. Mr. Gohar Iqbal counsel for respondent Nos.2 to 4 states that petitioner will get medical benefits as per Policy of respondent Nos.2 to 4. Petitioner states that about 4 months back he has started getting medical benefits and has received all medical benefits and is still receiving the same but now such medical benefit may be discontinued to him.

We have asked counsel for respondent Nos.2 to 4 as to whether respondent Nos.2 to 4 intend to discontinue the medical benefits to the petitioner, counsel simply states that respondent Nos.2 to 4 will continue medical benefits to petitioner as per its policy. Petitioner states that since the date of his retirement respondent Nos.2 to 4 have made certain changes in the policy which has drastically effected his right to receive medical benefits and that such policy is not in accordance with law.

Counsel for respondent Nos.2 to 4 was asked that under what law medical policy, that existed at the time of retirement of the petitioner can unilaterally be changed to the detriment of the petitioner who has already retired and has delivered his part of consideration. To this, counsel for the respondent Nos. 2 to 4 only made request to adjourn the matter to bring case law.

It may be noted that the petitioner who is in attendance states that he is 73 years of age and cannot afford to pursue the matter further and requests that Court decides his case preferably today. It is settled principle that employee who retries from service acquires vested right to his retirement dues so also the other benefits which were existing at the time of his retirement and such benefits cannot unilaterally be curtailed or amended to the detriment of an employee who has already retired. If any such unilateral change is affected, the same will operate prospectively and will only apply to the employees who retire subsequently to such change. The earlier retired employees will get the same benefits to which they became entitled at the time of their retirement. The petitioner case apparently is on the same footing. No law was cited before us to show that petitioner will not have right to receive medical benefits which were enforce at the time of his retirement. It is not merely a question of fulfillment of contractual obligations but inherently it includes obligations of morality and a social order devoid of inequity and its application and result across the board.

Counsel for the respondents, after we have dictated the above order, argued that respondent Nos.2 to 4 is a private organization and petition is not maintainable.

In this respect, it may be noted that respondent Nos. 2 to 4 have filed their reply to the petition with which they attached a copy of the Memorandum and Articles of Association of Mari Gas Company Limited, which indicate that it was incorporated on December 4^th 1984. Letter issued by the Controller of Capital Issues on October 29^th, 1984 indicates the share holding structure of Mari Gas Company Limited (hereinafter referred to as Company) is as under:-

(a) The Government of Pakistan Rs. 60 million.

(b) Fauji Foundation Rs. 60 million.

Memorandum of the Company indicates that it is signed by 7 persons all of whom connected with Fauji Foundation. Admittedly Fauji Foundation is an institution of Pakistan Army. It is also not denied that controlling shares in Oil and Gas Development Corporation are still retained by the Government of Pakistan. In view of such situation and in line with the tests laid down by the Hon’ble Supreme Court in SALAHUDDIN V. FRONTIER SUGAR MILLS AND DISTILLERY LTD. (PLD 1975 SC 244) and reiterated by the Supreme Court in its judgment announced on March 12^th, 2010 in Pakistan International Airlines Corporation V. Tanweer-ur-Rehman, Civil Appeal Nos. 172-K to 175-K to 182-K of 2009 as well as in MUHAMMAD MUBEEN-US-SALAM v. FEDERATION OF PAKISTAN (PLD 2006 SC 602), Mari Gas Co. Limited is exercising public power and is therefore a person within the contemplation of Article 199 of the Constitution of Islamic Republic of Pakistan 1973.

Next contention of Mr. Gohar Iqbal was that there are no statutory rules in Mari Gas Company Ltd and therefore petition will not be maintainable. As far as, law of master and servant is concerned, this case does not involve that particular question as it is neither of taking into employment nor of an employee who has been removed from service and who is pleading for reinstatement. It is a case where an employee retired after 30 years of service and in whose case retirement policy of post retirement benefits, medical benefits, has been changed to the detriment of the retired employee. Even otherwise right to receive medical treatment particularly by a senior citizen, and as the petitioner claims to be 73 years of age, is included in right of life in line with the principles laid down by the Supreme Court in SHEHLA ZIA V. WAPDA (PLD 1994 SC 693) and reiterated in ARSHAD MEHMOOD AND OTHER V. GOVERNMENT OF PUNJAB, THROUGH SECRETARY, TRANSPORT CIVIL SECRETARIAT, LAHORE AND OTHERS (PLD 2005 S.C. 193). It was observed, Right of “life” includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally.” Sustenance can also be drawn from the principle of policy particularly Article 38 of the Constitution and it is settled law that although the directives of policy do not confer legal rights and do not create legal remedy, they appear to be like an instrument of Instructions, or general recommendations addressed to all authorities in the State reminding them of the basic principle of the new social and economic order which Constitution aims at building. Reference may be made MS. FARHAT JALEEL & OTHERS V. PROVINCE OF SINDH AND OTHERS (PLD 1990 Karachi 342).

Since legally a person who has retired from service is entitled to continuation of all the benefits which were available to him at the eve of retirement it is not available to the employer to make any change in such benefits in respect of any such employee who has already retired. Mari Gas Company Limited being a person within contemplation of Article 199 of the Constitution of Islamic Republic of Pakistan 1973, can not be allowed to violate its legal obligation in this regard.

For the above reasons this Constitution Petition is allowed and Mari Gas Company is directed to allow the same benefits as were applicable in the case of the petitioner at the time of his retirement and not to make any change in any of such benefits to the detriment of the petitioner or any other person after the petitioner or any such person has retired.

J U D G E