2001 PLP C (PLC(CS))

IRSHAD HASAN KHAN, C.J.

Through this common judgment, we propose to dispose of the above 2 sets of Civil Petitions Nos. 12 to 63 of 2001, 65 to 92 of 2001, 112 to 180 of 2001, 185 of 2001, 2020 of 2000, 1974 of 2000 and 2019 of 2000 filed by the employees and Civil Petitions Nos.950 to 1113 of 2001 brought, respectively, by 153- employees of the State Bank of Pakistan and 164 by the State Bank of Pakistan and others against the impugned judgment dated 19-10-2000 of the Federal Service Tribunal (hereinafter referred to as the Tribunal) passed in Appeal No.277(R) of 1998 and other connected appeals.

2. Briefly stated, the facts of the case are that petitioners-employees were holding different posts in the State Bank of Pakistan. The SBP floated a scheme called "Voluntary Golden Handshake Scheme" (hereinafter referred to as the VGHS vide its Personnel Department Circular N6.9, dated 23-10-1997, salient features whereof are reproduced as under:-- "in addition to normal retirement benefits, the State Bank will provide the following financial and benefit pack under the Golden Handshake Scheme to all employees: (a) Three (3) months' Basic ach completed years of service OR (b) One and a half months' Basic Pay for each remaining months of service, whichever is less, however, subject to a maximum of 90 months' basic pay. (a) Benevolent Fund, Grant equivalent to 10 years to be paid in lump sum in advance at the time of settlement of dues, as a final payment as per entitlement. The following normal retirement benefits will be available to the employees: (a) Employees who have completed 25 years of service or more (i) Under Old Retirement Benefits Provident Fund own and Bank's contribution & Gratuity @ one month's Basic Pay for each completed year of service. (ii) Under New Retirement Benefits General Provident Fund contribution and 50% Commutation of Gross Pension and payment of pension on monthly basis. (b) Employees whose services are less than 25 years. (i) Under Old Retirement Benefits Provident Fund own and Bank's contribution & Gratuity @ one month's Basic Pay for each completed year of service. (ii) Under New Retirement Benefits. General Provident Fund contribution Although, such employees are not entitled to pensionary benefits, it has been decided, as a special case and without creating any precedent to allow them compensation towards pensionary benefits equivalent to 50% Commutation of Gross Pension as a full and final settlement. (a) Leave Encashment subject to a maximum of 180 days. (b) Post retirement medical facilities as admissible under the Bank's Rules or an amount equivalent to two months' pay for every year for a total period of 10 years, at the option of the employee. (c) Post retirement benefits (other than medical facilities) as admissible under the Rules. Every employee who is in the employment of the Bank as on 23rd October, 1997 may opt for the Scheme. The Scheme will be open for option upto 22nd November, 1997. No option will be entertained after expiry of the prescribed date of option and an option once exercised will be irrevocable. It will be at the absolute discretion of the employee to exercise his/her option for Golden Handshake Scheme. Also it will be at the discretion of the Management to accept or refuse to accept the option exercised by an employee in favour of Golden Handshake Scheme or it may defer the acceptance of the option with such modifications as it deem appropriate keeping in view the interest of the Bank. OTHER TERMS AND CONDITIONS (a) The Scheme will be applicable to all employees, whether on leave or in service. (b) The above Scheme will not be applicable to persons engaged on contract/temporary basis. (c) While computing the length of service, the period exceeding six months will be treated as full year. (d) The period of extraordinary leave without pay will not be counted for purpose of calculation of any benefit of voluntary retirement. (e) All amount outstanding against and due from the employees, who opt in favour of the Scheme, will be liable to be adjusted against final settlement of dues. Within about a week, each employee will be sent a print out showing his/her approximate benefit if he/she was to avail of the package. He/she will have to give his/her consent in writing to Chief Manager/Head of Department on a prescribed form attached herewith by 22nd November, 1997. If for any reason, an employee does not receive the said print out by 30th October, 1997, then he/she may contact the Regulation Division, Personnel Department, Karachi. "

3. The petitioners exercised their option within the stipulated period and they were informed in writing on 3-12-1997 that their such options have been accepted and that they would be relieved of their duties with effect from 15-12-1997. It so happened that the Bank raised the salary structure of its employees vide its Personnel Department Circular No. 12 dated 29-11-1997 which was to become effective from 1-12-1997 and certain other changes in the earlier Scheme were also introduced vide its Personnel Department Circular No. 13, dated 29-11-1997. The petitioners-employees continued performing their duties till 15-12-1997, were relieved on the said date and were paid remuneration as 'per revised salary structure of the period from 1-12-1997 to 15-12-1997. But to their surprise, the Bank prepared and calculated the emoluments to be paid to the petitioners under the aforementioned Voluntary Golden Handshake Scheme and not on the basis of last pay drawn i.e. having become effective from 1-12-1997 (Revised Salary Structure) but on the basis of pay drawn on 22-11-1997 i.e. old pay structure. Thus, according to the petitioners, they were deprived of huge amounts by less payment under various heads. It was also alleged that the aforementioned option was obtained under threat and coercion and by misrepresenting the facts. They pleaded that they were officially relieved from service of the respondent-Bank on 15-12-1997, therefore, the Tribunal erred in taking the view that the petitioners stood retired from service of the Bank on 23-11-1997, i.e., the day after the last date for making an application to opt for voluntarily retirement under the VGHS introduced by the Bank; are entitled to retirement benefits under the VGHS and the same are to be calculated in accordance with the salary structure in effect on the date on which they were relieved from their official duties, i.e.. 15-12-1997- are entitled to the increase in pension allowed by Bank's Circular No.9 dated 1-8-1998 and Circular No.4 dated 9-5-2000 which provided fur calculation of pension on the basis of the salary structure in effect since 1-12-1997 and that Tribunal has erred in failing to examine in depth the plea that the VGHS was introduced by suppressing the date of 23-10-1997 when the respondent-Bank had issued Circular No.9 introducing the Golden Handshake Scheme and had also taken a decision to increase the pay scale by 47% . Since the decision to increase pay scales was kept hidden from the' petitioners, therefore, the petitioners were entitled to reinstatement in the service of the Bank. Among others, the following prayers were made before the Tribunal: (i) To declare the amount of payment of retiring pensionary and other benefits is incorrect, improper and in violation of the rules/regulations governing the said benefits; (ii) to direct the respondent to correctly calculate the pensionary dues on the basis of last pay drawn as on .15-12-1997 as well as the retiring benefits enunciated in paras. supra strictly in accordance with rules/regulations and pay the correct residue admissible amount to the petitioner. In some of the appeals, a further prayer for reinstatement in service with all back benefits was also trade.

4. After hearing the parties the Tribunal by its majority decision dated 19-10-2000 held that so far as the contention of the petitioners that they were coerced and pressurized to exercise option is concerned, it cannot be taken to be gospel truth as a heavy onus lay upon their shoulders to prove such a wild allegation. A long period of one month was at the disposal of the petitioners to carefully and minutely examine terms and conditions of aforementioned Scheme. It was clarified by the Bank to the petitioners that once option was exercised the same was to become irrevocable. Thus, those who claimed that they have requested for withdrawal of option, seem to be labouring under some misconception in this regard. Such stand taken by the concerned petitioners was brushed aside by the Tribunal. As regards the contention of the petitioners that they should have been paid according to the revised pay structure coming into effect from 1-12-1997, the Tribunal held that undoubtedly the petitioner had opted under PDC No.9 dated 23-10-1997 which envisaged that last date of exercise of such option was 22-11-1997 thus they stood retired since 23-11-1997 on acceptance of their option from last date of exercise of such option i.e. 22-11-1997 and as certain formalities were to be completed before the petitioners could be actually relieved of their duties on 15-12-1997 hence the Bank was magnanimous enough to make payment of emoluments for the period from 23-11-1997 to 15-12-1997 on the basis of salary structure applicable for the respective period i.e. till 30-11-1997 on the basis of old pay structure and, for the period from 1-12-1997 to 15-12-1997, as per revised salary structure which is to be termed as good-will gesture towards the optees keeping in view their long association with the Bank and the performance of duties for the period from 23-11-1997 to 15-12-1997 is to be considered as on work-charge basis. Therefore, the optees were to be governed by the terms and conditions of VGHS floated vide PDC No.9. With these observations the Tribunal by majority dismissed all the appeals filed by the petitioners. Not feeling satisfied with the decision of, the Tribunal, the petitioners have filed these petitions for leave to appal against this decision before this Court.

5. We have heard Mr. Fakhruddin G. Ebrahim, learned Senior Advocate Supreme Court for the petitioners in Civil Petitions Nos. 12 to 55 of 2001; Mr. Abdul Mujeeb Pirzada, learned Senior Advocate Supreme Court for the petitioners in Civil Petitions Nos.2019 of 2000 and 112 to 180 of 2001; Mr. Muhammad Munir Peracha learned Advocate Supreme Court for the petitioners in Civil Petitions Nos. 56 to 63 of 2001 and 65 to, 92 of 2001; Mr. M. Bilal, learned Senior Advocate Supreme Court and Mr. K.M.A. Samdani, learned. Advocate Supreme Court on Court's Notice for the State Bank of Pakistan and others.

6. It is an admitted position that the above exercise of option by the petitioners/employees in favour of VGHS circulated vide Circular No-9 dated 23-10-1997 by the Bank was accepted by the competent authority vide Letter No.PD(SSD-6)/PF/2347/97 dated 3-12-1997. It is also an admitted fact that by virtue of said letter the petitioners herein were directed to be relieved from service with effect from the close of business on 15th December, 1997. Same is the position with regard to the fact that all the petitioners/employees were in service up to 15-12-1997.

7. It is also common ground between the parties that the Bank, vide its Personnel Department Circular No.12 dated 29-11-1997, informed all its employees that the Central Board in its meeting held on 22-10-1997, approved a revised salary package for its employees effective 1-12-1997 in respect of Scales 1, 2, 3, 4, 5, 6 and 7; Scales, I, Il, III and IV; OGs III, II & I, Sr. Grs.III, II & I and Exec. Gr. Accordingly, the above revised salary of each employee was fixed in the new Scales on the basis of his/her respective position in the present scale in accordance with the approved formula. It is also an admitted fact that all the petitioners herein were in the employment of the Bank on 1-12-1997, when the revised salary structure became effective notwithstanding the fact that they had earlier opted for the VGHS and the same was accepted by the Bank on 3-12-1997. Parties are also one on the point that all the petitioners/employees were paid the revised salary in accordance with Personnel Department Circular No. 12 dated 29-11-1997 for the period from 1-12-1997 to 15-12-1997 i.e., up to the date when they were relieved from service under the VGHS. The question therefore arises whether while calculating the pension available to the petitioners the revised salary paid to them for the period between 1-12-1997 to 15-12-1997 could be denied. The learned counsel for the Batik have not been able to satisfy the Court as to on what principle of law such treatment can be meted out to petitioners/employees. When faced with this Messrs M. Bilal and K.M.A. Samdani vehemently argued that these cases do not involve any substantial question of law of public importance, therefore, notwithstanding their individual grievances, the relief sought for cannot be allowed to them in these proceedings. 8 It is true that in terms of clause (3) of Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the Constitution) an appeal to the Supreme Court from a judgment decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that .the case involves a substantial question of law of public importance, grants leave to appeal. Here the admitted position is that those persons who are adversely affected by the contrary decision are a group in themselves. For the purposes of resolution of the dispute to the extent of a group/substantial number of the employees of the Bank the question of its general application will be considered in the, context of the above situation. Thus visualized, we are satisfied that these cases do involve a substantial question of law of public importance within the contemplation of clause (3) of Article 212 of the Constitution.

9. In the result, we convert all these petitions into appeals and dispose of the same by modifying the impugned judgment of the Tribunal to the extent indicated above The result is that the, pension admissible to the petitioners/employees shall be calculated after bringing it to bear upon such calculation the number of days spent by them in service after their volition to abide by VGHS. Put differently, all the pensionary benefits shall be calculated by taking into account the period between 1-12-1997 to 15-12-1997. No costs. Civil Petitions Nos. 950 to 1113 of 2001

10. Needless to observe that in the connected petitions brought by the Governor, State Bank of Pakistan and others against the respondents/employees, the sole grievance of the petitioners therein is that the observation of the learned Chairman of the Tribunal in the impugned judgment to the effect: " during the course of hearing, the departmental representative candidly submitted that the income-tax recovered from the appellants will be reimbursed to them.", is based on erroneous assumption of fact in that neither any counsel for the Bank nor any representative of the Bank made any statement before the Tribunal during the course of proceedings that income-tax will be reimbursed to the respondents/employees. With consent of Mr. Fakhruddin G. Ebrahim, Mr. Abdul Mujeeb Pirzada, Mr. Muhammad Munir Peracha, Mr. M. Bilal and Mr. K.M.A. Samdani learned counsel for the parties, we remit the case to the Tribunal to examine this question afresh in the light of the affidavit of Mr. Abdul Aziz, Deputy Director, Human Resources Department, State Bank of Pakistan, copy whereof may be forwarded to the Tribunal, after hearing the parties and holding such inquiry as the Tribunal may deem fit. If it is established that no such statement was made as attributed to the departmental representative of the Bank, the above observation shall be deleted otherwise it shall remain intact.

11. With the above observation Civil Petitions Nos. 950 to 1113 of 2001 are also converted into appeals and disposed of in terms of the above observations in paragraph

10. No costs. M.B.A./140/S Order accordingly.