2010 PLP 13 (PLC)

MUHAMMAD KHALID ALVI, J.

Brief facts of the case are that respondent who was an employee of Allied Bank Limited retired on 23-4-2005. On 4-9-2002, a scheme was launched by the appellant-Bank by the name of Restructuring of Salaries of Executives and Officers. In para.4 of the scheme, certain restrictions were imposed with reference to pensionary benefits provided in the said para. and options were invited from the employees. Respondent on 23-9-2002 filed his option accepting the terms and conditions as a whole of the said scheme. On 21-5-2005 after his retirement an order was issued which was conveyed to him on 25-5-2005 with regard to his pensionary emoluments. He feeling dissatisfied filed grievance notice which, according to him was not responded, therefore, he filed grievance petition before the learned Labour Court on 2-8-2005. This grievance petition was contested by the appellant. However, the same was allowed vide order, dated 28-2-2008 which is being challenged through the instant appeal.

2. It is contended by learned counsel for the appellant that the grievance petition filed by the respondent was barred by time. According to him, the grievance accrued to him from the date of issuance of scheme i.e. 4-9-2002 while the petition was filed on 12-8-2005 whereas period of limitation provided under section 46 of the Industrial Relations Ordinance, 2002, is tree months.

3. It is next submitted that respondent having accepted/opted to accept all terms and conditions contained in circular dated 4-9-2002 is estopped to challenge the same or to challenge its effect on his pensionary benefits. It is next argued that respondent had been enjoying all benefits by way of which a substantial rise in salary was given to the employees but he never challenged the freezing date fixed for fixation of pensionary benefits i.e. 30-6-2002.

4. On the other hand, learned counsel for the respondent contends that instant appeal has been filed by Allied Bank Limited through its attorneys namely Kaleem Akhtar Malik and Muhammad Ramzan. Power of attorney in favour of Kaleem Akhtar Malik was executed on 16-6-1994 while that of Muhammad Ramzan was executed on 10-10-1993 by the President of the Bank. At that time, name of the Bank was Allied Bank of Pakistan Limited whereas name of the appellant was changed in the year 2005 from Allied Bank of Pakistan Limited to Allied Bank Limited, therefore, it is contended that the attorneys in favour of the said two persons are not validly constituted attorneys from Allied Bank Limited. It is further added that power of attorney was issued by the President whereas according to Article 133(vii) of the Articles of Memorandum of Association of the appellant, the President was not authorized to delegate powers to the said attorneys.

5. I have considered the arguments of the learned counsel for the parties.

6. Starting with the question of limitation, admittedly an order with regard to the pensionary benefits was issued on 21-5-2005 which was intimated to the respondent on 25-5-2005 whereafter on 21-6-2005 respondent filed his grievance notice within a period of one month from the date of communication which was not responded, therefore, grievance petition was filed on 12-8-2005 which was well in time, therefore, this objection is overruled.

7. Coming to the objection of maintainability raised by the respondent, admittedly name of the Bank was changed in the year 2005, however, the power of attorneys were issued in the years 1993 and 1994 and the said attorneys have been performing their duties ever-since. Although attorney were issued when the bank was holding previous name but it does not mean that their authorities ceased to exist by the change of name. This would be a hypertechnical objection. Apart from this, the Article of Memorandum of Association referred by the learned counsel for the respondent also does not debar or restrict authority vested in the attorneys issued in their favour way back in the years 1993 and 1994.

8. Coming to the merit of the case, the scheme was launched on 4-9-2002 and a freezing date was fixed as 30-6-2002 for the purposes of calculation of pension at any time when the employee retires but with this disadvantage a major advantage was also given to the employees in the shape of major jump in their salary package. Respondent on 23-4-2005 in unequivocal terms giving reference to the scheme of 4-9-2002 gave his option to continue with the pensionary scheme payable in terms of the said scheme, therefore, he cannot be allowed to partly accept the scheme and partly disown to the portion which is disadvantageous to him although he has taken all the benefits in the shape of increased pay.

9. For what has been stated above, this appeal is allowed, order passed by the learned Labour Court, dated 28-2-2008 is set aside. Bank guarantee furnished by the appellant in terms of order, dated 15-4-2008 shall be returned to the appellant. MUY/A-243/L F.A.O. allowed.