2010 PLP 354 (PLC)

JUSTICE (R.) ABDUL HAFEEZ CHEEMA (CHAIRMAN).--This is an appeal filed by Messrs Pakistan Telecommunication Company Limited (PTCL) through its General Manager against the judgment dated 17-6-2009 passed by the learned Presiding Officer, Punjab Labour Court No.6, Rawalpindi on the grievance petition filed by Aneesa Khatoon respondent.

2. Aneesa Khatoon, respondent joined the service of the appellant company as "Telex Operator" on 4-9-1980. The appellant company introduced a Voluntary Separation Scheme (VSS) in November, 2007. The petitioner/respondent opted for the said scheme and applied for calculation of her dues according to the length of her service to which she was entitled. The period of length of the service of the respondent was calculated as 27 years and accordingly the monetary entitlement of the respondent was declared as under:-

1. Estimated settlement cheque Rs. 19,04,845.00

2. Estimated monthly pension Rs. 7,845.00 The respondent claimed that few days prior to 30-5-2008 she came to know from her banker that instead of the estimated settlement cheque amount a sum of Rs. 15,34,862.00 have been credited to her account by the appellant company and she has also not been granted pension and medical facilities. Since the length of her service estimated by the company itself was 27 years so as per terms and conditions of the VSS she was entitled to medical facilities and monthly pension which benefits had been refused by the appellant department. The respondent accordingly served a grievance-notice-dated 30-5-2008 in which she made a request that a balance sum of Rs. 3,65,457.00, continuously monthly pension of Rs. 7,845 along with medical facilities be provided to her. The appellant raised many usual preliminary objections i.e. that the grievance notice has not been received; that the grievance petition was time barred and that the actual regular service of the respondent was 15 years 5 months and 24 days as such under the VSS scheme she was not entitled to any kind of medical facilities .and monthly pension. The learned lower court after hearing the parties, allowed the grievance petition filed by the respondent.

3. Arguments have -been heard and the record has been perused.

4. It has been pointed out with greater emphasis that the grievance petition was time barred and the learned lower court did not take notice of this fact; secondly the grievance notice was issued on 30-5-2008 whereas she was relieved of her, duties on 18-2-2008. It was further argued that the calculation made by the appellant department of her dues was mistakenly prepared and it did not depict her real entitlement because her length of regular service was only 15 years, 5 months and 24 days and as per terms of the VSS scheme no medical facility or monthly pension could have been awarded to the respondent.

5. Learned counsel for the respondent/petitioner however argued that pension was rightly calculated by the company and when according to their own calculation the length of service of the respondent was 27 years, now they cannot be allowed to take this flimsy plea that their calculation was wrong. Once this decisive step had been taken by the appellant company and that has been acted upon, the law will not permit them to retrieve from their earlier stand. As regards the pension and other medical facilities, it was pointed out that since the length of service of the respondent as computed by the appellant company itself, the respondent is entitled to both the privileges and the appellant company cannot be allowed to count the length of service only as 15 years, 5 months and 24 days because the earlier calculation shown by means of document Ex.P-2 was made by the company officials themselves and they are now estopped from claiming otherwise. It is equally note worthy that in ease of one Mumtaz Ahmed a colleague of the respondent whose case was also identical in nature, he has been granted pension as well as medical facilities. So the law does not allow to make discrimination between the two officials because low requires that likes should be treated alike. Thus discrimination is not permitted in such eventualities. As for the dispatch of notice, the respondent produced Exhs.P.6 and 7 (postal receipts) as such presumption is that it had reached its destination. It is equally noteworthy that' when these documents were produced by the respondent in the court in her evidence, its validity or genuineness was never assailed or challenged through any cross examination as such it shall be deemed that the service of grievance notice was an admitted fact. Exh.P.11 is a letter of Divisional Engineer showing that the respondent and other colleagues were granted annual increments w.e.f. 1-12-1980 i.e., from the day of joining of their service. When an employee is regularized his total length of service is to be computed from the day he joined the service that may be temporary or otherwise. In support of this contention, the respondent has relied on the case law reported as 2006 PLC (C.S.)

237. It is a judgment delivered by the learned Division Bench of the Lahore High Court, Lahore whereby their lordships have relied upon a judgment of the honourable Supreme Court passed in case of Ikram Bari and others v. National Bank of Pakistan 2005 SCMR 100, wherein it has been held that even the-service period of an employee of daily wager shall be counted for the purpose of computing pensioner/benefits. Pension is in fact a deferred part of the pay of an employee while he was putting his best efforts in rendering service to his employer during his hay days and this part was deferred to be paid to him periodically or otherwise to meet his oldage needs. This is neither bounty nor a concession from any one. While discussing the nature of the pensionery benefits and its implications in case of I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division Islamabad and others 1991 SCMR 1041 the Honorable Supreme Court was pleased to quote the judgment of the Indian Supreme Court with approval in case of D.S. Nakara and others v. Union of India AIR 1983 SC 130 and People's Union for Democratic Rights and others v. Union of India and others AIR 1982 SC 1473, the relevant para shortly reads:-- "Summing up it can be said with confidence that pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio-economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and therefore, one is required' to fall back on savings. One such saving in kind is when you give your best in the day of life to your employer, in days of invalidity, economic security by way of periodical payment is assured. The term has been judicially defined as a stated allowances or stipend made in consideration of past service or a surrender of rights or emoluments to one retired from service. Thus the pension payable to a Government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation for service rendered. In one sentence one can say that the most practical raison d'etre for pension is the inability to provide for oneself due to oldage. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon."

6. Since this has been declared as part of pay as such this was a continuing and recurring cause of action. No limitation is involved in such cases. The grievance petition thus was competent in every respect. Learned counsel for the appellant remained within the confines of technicalities. In fact the court's primary duty is to do substantial justice and of course within the frame work of law. So it does not lie in the mouth of the appellant company that the calculation was wrongly made and in fact it should have been from the day when she cleared the competitive examination. When it is an admitted fact that such pensionery benefits including medical facilities have been given to one Mumtaz Ahmed a colleague of the respondent then the same, benefits cannot be disallowed to the respondent and as such no discrimination can be made between them especially when both the 'employees are placed in similar situation. In this view of the matter, there is no merit in the appeal which is hereby dismissed. H.B.T./8/PLT Appeal dismissed.