2010 PLP (C (PLC(CS))

IFTIKHAR MUHAMMAD CHAUDHRY, C.J.

These petitions have been filed by Messrs Pakistan International Airlines Corporation (PIAC) seeking leave to appeal against the order dated 9-10-2008 of the Federal Service Tribunal, Islamabad whereby the learned Tribunal on a miscellaneous petition filed by the respondents in the appeals decided by it vide judgment dated 28-2-2004 directed the PIAC, petitioner herein, to implement its afore-said judgment and pay the dues of the respondents including the annual increments and the amount of accumulated privilege leave/leave preparatory to retirement (PL/LPR) as admissible under the rules/regulations of the PIAC.

2. Brief facts leading to the filing of these petitions are that the respondents, who were the employees of the PIAC, were retired under the Mandatory Retirement Scheme dated 31-10-1997, which provided that all those employees of the PIAC who attained the age of superannuation between 31-10-1997 and 1-7-2000 would be retired after paying them in lump sum their salaries, allowances and perquisites as admissible to the regular employees in the same pay group. Subsequently, another scheme called Voluntary Golden Handshake Scheme was introduced on 2-12-1997. The respondent in C.P.No.1588 of 2008, who was retired under the first mentioned scheme, filed a Constitution petition in the High Court of Sindh against the scheme dated 31-10-1997 with the prayer that he may be allowed the benefits admissible under the latter scheme because the same was more beneficial. His petition was dismissed and later a petition for leave to appeal was filed in this Court, but that too was dismissed and he was advised to approach the Tribunal for the redressal of his grievance. Accordingly, he filed appeal before the Tribunal, which was dismissed vide afore-said judgment dated 28-2-2004. However, the learned Tribunal held that the respondents were entitled to payment of dues inclusive of annual increments as if had they continued in service until the age of superannuation and also the encashment of PL/LPR as would accrue to the regular employees in the same pay group. The learned Tribunal directed the PIAC to pay the dues of the respondents accordingly. The petitioner did not challenge the afore-said judgment of the learned Tribunal, but also did not pay the dues to the respondents as directed in the judgment dated 28-2-2004 of the learned Tribunal. The respondents moved miscellaneous petition before the Tribunal seeking implementation of its judgment dated 28-2-2004. Vide the impugned order dated 9-10-2008, the learned Tribunal directed the PIAC to make payment of the afore-said dues of the respondents. Thus aggrieved, the petitioner filed the present petitions for leave to appeal against the order dated 9-10-2008 of the learned Tribunal.

3. The learned counsel for the petitioner contended that under the scheme dated 31-10-1997 the respondents were not entitled to the increments of the period during which they did not actually serve in the department or encashment in lieu of PL/LPR. According to the learned counsel, the respondents, at the time of their retirement under the scheme, opted to accept the amount worked out in lump sum on the basis of their salary, allowances and perquisites as admissible to a regular employee of the same pay group, rank and status. Further, the expression "lump sum" used in the scheme dated 31-10-1997 indicated that they would not be entitled to any other dues. On the other hand, the learned counsel for the respondents contended that the PIAC failed to pay their dues in terms of the policy dated 31-10-1997 particularly as incorporated in para. 2 (a, b, c & d) thereof and caused them financial loss against the letter and spirit of the policy. The learned counsel submitted that the term "perquisites" used in the scheme included annual increments of the remaining period of the service of the respondents, PL/LPR, etc.

4. We have heard the learned counsel for the parties and have gone through the record. The contentions now urged before us were raised before the learned Tribunal, and vide paras. 17 and 20 of its judgment, the learned Tribunal dealt with the same as under:-- "

17. The contention of the respondents to the contrary is that the judgment of this Tribunal has been fully implemented in terms of the Admin Order No.15 of 1997, dated 31-10-1997. It is elaborated that the salary, allowances and perquisites as admissible to the petitioners in their respective substantive pay group and rank have been paid in lump sum with effect from the date of retirement up to the date of reaching the age of superannuation. It is submitted that future annual increments in the intervening period could not be granted as the same could not accrue automatically. Regarding the payment of accumulated privilege leave/leave preparatory to retirement, it is contended that the lump sum payment made to the petitioners includes the payment for accumulated privilege leave/leave preparatory to retirement also. "

20. When viewed in this context, it is only but natural to assume that the compensation was upon the sound premises that each such retiring employee shall complete satisfactorily his tenure of service up to the age of superannuation. In our view the assumption of satisfactory performance of duties during the intervening period is the corner stone of the mandatory early retirement benefits scheme for the corresponding accrual of benefits of salary, allowances and perquisites to which the retired employee would have become entitled had he remained in service till superannuation. The appellants would have in normal course of service unless there was anything repugnant to good conduct or behaviour would have been entitled to annual increments in accordance with law. This being the intention of conferment of benefits upon the mandatory early retiring employees, it was axiomatic to allow them the benefit of annual increments as they accrued in the pay group of the appellants till they reached the age of superannuation. Resultantly the claim of the appellants regarding payment of annual increments in the intervening period is allowed. This shall also be counted for calculating pension of the appellants." The learned counsel for the petitioners was unable to point out any perversity in the reasoning, or any illegality in the exercise of jurisdiction by the learned Tribunal. We have perused the scheme dated 31-10-1997 issued by the PIAC. Para. 2 of the scheme clearly provides that upon retirement, such employees, shall be entitled to salary, allowances and perquisites as admissible to a regular employee of his substantive pay group and rank in lump sum with effect from the date of retirement to date of reaching sixty years as per personal record with the Corporation (hereinafter referred to as "intervening period"). It is further provides that the said lump sum payment shall include payment for accumulated PL/LPR as per PIAC's rules/regulations. Clearly, the PIAC was required to pay in lump sum all the dues of the intervening period which would have accrued to them had they continued in service. Besides the other benefits calculated by the petitioner, the annual increments would also accrue to the respondents in the intervening period as they accrued to regular employees in the same pay group. The learned Tribunal, therefore, rightly concluded that the respondents were entitled to lump sum payment of all the dues accruing to regular employees in the same pay group including annual increments as well as PL/LPR as would be admissible to the regular employees of the same pay group.

5. In our considered opinion the expression "intervening period" is very important to resolve the controversy between the parties. It may be noted that an employee, who is retired under the scheme, would be paid salary, allowances and perquisites till the date of reaching the age of 60 years, i.e. for a period during which he would not be in actual service of the PIAC. Under the scheme, he is deemed to be in service during the intervening period for all intents and purposes and shall be entitled to all such benefits as are available to a regular employee of his pay group and rank. Therefore, such an employee shall be treated at par with the regular employees of his pay group and rank in the matter of annual increments and PL/LPR also. The argument of the learned counsel that such an employee, being not in actual service in the intervening period, would not be entitled to annual increments or PL/LPR is devoid of merits and is hereby repelled. Furthermore, as held in Abdul Hameed Nasir v. National Bank of Pakistan 2003 SCMR 1030, instruments such as the policy of early retirement in the instant case, are to be construed keeping in view the real intention behind them for taking such decision, which is to be explored by scrutiny of the attending circumstances and in particular the instrument as a whole. It is clear from the policy in question that the concerned employees were offered certain benefits in lieu of their proceeding on early retirement for certain considerations best known to the PIAC. Thus, the beneficial aspect of the policy in question vis-a-vis the concerned employees will be dominant consideration and a construction having the effect of depriving them of the benefits envisaged therein cannot be adopted. Admissibility of annual increments and encashment for PL/LPR are not allowed by way of concession. On the contrary, they are the normal benefits/entitlements admissible to the concerned employees. Therefore, the same could not be withheld on any ground or a principle governing the interpretation of instruments, such as the scheme dated 31-10-1997.

6. The learned counsel for the petitioner also contended that section 5(2) of the Service Tribunals Act, 1974 did not confer upon the Federal Service Tribunal the power of implementation of its judgments. The learned Tribunal has held in the impugned order that it is possessed of the power of implementation of its judgments. Further, SI.No.11 of the ESTACODE, 2007 Edition Vol.11, p.1272 provides that on acceptance of an appeal by the Federal Service Tribunal, a written order is communicated to the parties and respondent Ministry/Division/ Department. On receipt, the judgment is to be examined on top priority basis with a view to filing a civil petition for leave to Appeal (CPLA) before the Supreme Court for which 60 days time is available to the aggrieved parties. In case, it is decided, in consultation with the Law and Justice Division that an order passed by the Tribunal does not involve any substantial question of law of public importance for moving a CPLA before the Supreme Court, the order should be implemented forthwith under intimation to the Registrar, Federal Service Tribunal, Islamabad. In the instant case, the judgment of the Tribunal was passed on 28-2-2004, but no C.P.L.A. was filed before this Court, hence it attained finality. However, the petitioner did not pay the dues to the respondents as held in the judgment of the Tribunal. These petitions were taken up for hearing on 15-6-2009 and the learned counsel for the petitioner was called upon to state as to whether the order of the Tribunal dated 20-2-2004 had been implemented in letter and in spirit. He made a statement that according to his instructions, the petitioner had implemented the same. However, he was asked to file a written statement in this behalf indicating that the payments in terms of para.2 (a), (b), (c), & (d) of the scheme dated 31-10-1997 had been made to the concerned employees. Accordingly, he has filed a statement in this behalf today in Court to substantiate his plea. Thus, keeping in view the conduct of the petitioner, we would not like to go into the question of power and jurisdiction of the Tribunal to implement its judgments in the instant case any further, and would leave the same to be dilated upon in an appropriate case.

7. For the foregoing reasons, these petitions are dismissed and respondents are directed to accept the benefit of the increments and encashment for PL/LPR within a period of one month of the receipt of copy of this order. The petitioner shall submit a report regarding receipt of the dues by the respondents to the Registrar of this Court for our perusal in Chambers. There will be no order as to costs. M.H./P-10/SC Petition dismisse