2018 PLP (C (PLC(CS)N)

MUZAMIL AKHTAR SHABIR, J.

Through this constitutional petition, the petitioner has made the following prayer: "Under above submitted facts and circumstances, it is most respectfully prayed that this petition may kindly be accepted, the impugned order dated 07.11.2016 passed by respondent No.1 be set-aside and the petitioner be reinstated with all back benefits and arrears under the law of persistency, orders and judgments of FST, Labour Tribunal and directions of the August High Court and Apex Supreme Court in the larger interest of justice."

2. The brief facts of the case are that the petitioner was employee in State Life Insurance Corporation of Pakistan ("Corporation") and served at different positions. He claims that respondent No.2 forced him to sign few papers. Thereafter, the petitioner was surprised to receive letter of retirement dated 02.12.2000 under V.R./S.S. Scheme ("Scheme"). The petitioner submitted appeal against the afore referred order with respondent No.1 which was not decided. Therefore, the petitioner along with others filed a constitutional petition bearing W.P. No.9146 of 2009 titled "Muhammad Nawaz and others v. Chairman State Life Insurance Corporation" before this Court which was decided on 26.11.2009 whereby respondent No.1 was directed to adjudicate the appeals filed by the petitioner within one month and convey the decision to the petitioner as well as Deputy Registrar (Judicial) of this Court. Respondent No.1 refused to accede to request of the petitioner for reinstatement in service vide order dated 14.01.2010. The petitioner again pointed out to the said respondent that some of the persons who had applied for voluntary retirement under the afore referred scheme had been reinstated in service and the petitioner is also entitled to receive benefit as per the principles of judgment of the Hon'ble Supreme Court of Pakistan reported as Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others (1996 SCMR 1185) but respondent No.1 did not pay any heed to the request of the petitioner, therefore, the petitioner again filed a constitutional petition bearing W.P. No.1504 of 2010 which was disposed of on 09.06.2016 with a direction to respondent No.1 to decide the matter within a period of 60 days. The said respondent has again dismissed the application filed by the petitioner vide order dated 07.11.2016. The said order has been challenged through instant constitutional petition.

3. Learned counsel for the petitioner has relied upon the order dated 18.09.2003 passed in Civil Appeal No. 1539 of 2002 titled State Life Insurance Corporation of Pakistan v. Rana Ashiq Ali wherein the Supreme Court has held as under: "Respondents, who are employees of the appellant Corporation were given option to opt for Voluntary Retirement/Separation Scheme framed by the Board of Directors of the Corporation. Respondents exercised of the option and intimated the Corporation but before the formal order or decision by the Corporation about their retirement in pursuance thereto, they made applications for withdrawal of the said options. However in spite of that, they were retired from service. They filed appeals before the Federal Service Tribunal, which have been accepted through the judgment against which these appeals are directed."

4. The petitioner seeks the same relief. From perusal of the afore referred order passed by the Supreme Court of Pakistan, it is clear that the said order relates to the respondents/employees who had exercised option to opt for voluntary retirement/separation scheme framed by the Board of Directors of the Corporation but the said employees exercised the option to withdraw their request for retirement under the afore referred scheme before any final order was passed by the respondents. However, in spite of the said withdrawal, the Corporation still passed an order of retirement against the said employees which orders were challenged by them before the Service Tribunals where their appeals were accepted and the respondents were directed to reinstate the said employees in service. In the present case, although the petitioner claims that he had filed applications time and again with the respondents to withdraw the order of his retirement and the said applications are also available as annexures with this petition but from the said applications, it is apparent that the same had been filed after passing of orders by respondent No.1 to retire the petitioner. Therefore, the petitioner cannot be put in the same position as the employees that had withdrawn their offer to be considered for retirement under the afore referred scheme. Besides although the applications filed by the petitioner are dated 03.12.2000, 20.12.2000, 15.01.2001, 10.04.2001, 05.03.2002, 20.02.2003, 10.02.2004, 01.02.2005, 15.01.2006, 10.01.2007, 01.01.2008, 15.01.2009 and finally on 16.12.2009 but no steps had been taken by the petitioner to approach any court or authority for redress of his grievance prior to filing of a constitutional petition bearing W.P. No.9146 of 2009. Had the petitioner been serious in pursuing the remedy, he would have definitely approached the court for redress of his grievance as had been done in the case of other employees. Moreover, all the afore referred applications appear to be in the same handwriting and no date of receiving of the same by the respondents has been mentioned except the last application dated 16.12.2009 which appears to have been sent through UMS on 17.12.2009. As nothing is available on record to show that any representation or application was previously filed except photocopies of the applications placed on record, therefore, it cannot be presumed that the petitioner had challenged the order of voluntary retirement prior to the year 2009 when application through UMS was filed and the aforesaid constitutional petition was filed before this Court. Therefore, this petition is liable to be dismissed as barred by laches. Moreover, as the facts of the petitioner's case are different from the facts of the other employees who had withdrawn their option to voluntary retirement, prior to its approval and acceptance, therefore, the judgment of the Hon'ble Supreme Court i.e. 1996 SCMR 1185 (Supra) would not applicable to the present case.

5. Even otherwise, the petitioner has enjoyed benefits of voluntary retirement for quite some years. The petitioner had never tried to return the benefits received by him. Although the petitioner claims that benefits were not received by him but had it been so, he would have mentioned this fact in his applications allegedly filed with the respondent corporation. Besides he would not have remained silent for such a long period. Once having opted to receive voluntary retirement and benefits thereunder and after availing the same, the petitioner is now estopped by his conduct to challenge the same. The petitioner cannot be allowed to approbate and reprobate in the matter and seek reinstatement in service at this stage. Even otherwise, the petitioner claims that benefits have not been received by him, this would fall within the domain of factual controversy which cannot be ascertained in the constitutional jurisdiction of this Court.

6. Once right of voluntary retirement is exercised and availed under the VSS, the same cannot be recalled. Reliance in this regard is placed on State Bank of Pakistan v. Khyber Zaman and others (2004 SCMR 1426) wherein the employees of State Bank had opted to avail Golden Handshake Scheme which was similar to the VSS and some employees thereafter challenged the said scheme and claimed further benefits, the Supreme Court observed that the Golden Handshake Scheme was purely voluntary in nature and once option is exercised to avail its benefits, the employee would be bound by the said terms and conditions of the said scheme and could not claim any other benefit and the exercise of option to avail such scheme would be irrevocable.

7. For what has been discussed above, this petition being devoid of any merit is dismissed. ZC/M-5/L Petition dismissed.