2004 PLP 1426 (SCMR)

JAVED IQBAL, J.

The above captioned petitions for leave to appeal arising out of the same judgment, dated 24-1-2003 passed by learned Federal Service Tribunal, involving the identical questions of facts and law, are being disposed of by this common judgment.

2. Precisely stated that facts of the case as enumerated in the judgment impugned are to the effect "that the Appellants who had opted Golden Handshake Scheme floated by the Respondent-Bank on 23-10-1997 and on acceptance of their option for this Scheme they were relieved from the service of the Respondents on 15-12-1997. Meanwhile the Respondent-Bank issued a Circular bearing No.20, dated 7-11-2000 whereas the respondents allowed its employees the increased monthly Grant under State Bank of Pakistan Employees Benevolent Fund Scheme. The Appellants who had retired effectively on 15-12-1997 after exercising option under Golden Handshake Scheme requested the Respondent-Bank to pay them the benefits of increased Benevolent Fund Grant as admissible under Circular No.20, dated 7-11-2000 which benefit has been denied by the Respondents. Feeling aggrieved by, this action of the Respondents, the Appellants have filed these appeals before the FST under section 4 read with section 2-A of the Service Tribunals Act, 1973, " which were accepted, hence these petitions.

3. Heard Mr. Khalid Anwar, learned Senior Advocate Supreme Court on behalf of the State Bank of Pakistan (petitioner) and Mr. Abdul Hafeez Pirzada, learned Senior Advocate Supreme Court alongwith Mr. Muhammad Akram Sheikh, learned Senior Advocate Supreme Court for respondents at length. The entire controversy revolves around the fact as to whether pursuant to `Golden Handshake Scheme' (GHSS) launched by the State Bank of Pakistan on 23-10-1997, the respondents are entitled to get increased `Benevolent Fund Grant' (BFG) under Circular No.20 issued on 7-11-2000 or otherwise? In order to set the controversy at naught it seems appropriate to reproduce the GHSS issued by the State Bank of Pakistan by mean of Circular No .9, dated 30-10-1997 which is as under: "STATE BANK OF PAKISTAN CENTRAL DIRECTORATE POST BOX.NO.4456 KARACHI Personnel Department Circular No.9 23rd October, 1997. Dear Employees, Voluntary Golden Handshake Scheme As you are aware, major amendments in the legal framework have been affected in the recent past, which have significantly enhanced and changed the work requirements of the State Bank. To fulfill these responsibilities effectively, it has become necessary to restructure the organization, reorient, functions and moderanise procedures. It would involve measures to improve the skill levels, introduce technology, reduce administrative costs, review the existing pay structure, and incentives system and streamline the recruitment and separation policies. The re structuring process is likely to result in redundancies and the need of creating a "Surplus Pool" of staff and officers at all levels. Such staff and officers would be entitled to a reduced compensation as compared with their present employments. They, however, would be provided an opportunity to acquire new skills and training at the State Bank expenses for possible new job assignment. In case, they fail to acquire the necessary skills to fit in a new structure, a compulsory retirement scheme could be introduced for them. However, before a need of a "Surplus Pool" is established, it has been decided to offer an attractive Voluntary Golden Handshake Scheme to all employees that is totally voluntary. Under the Scheme, the staff and officers will be entitled to the retirement benefits available under the existing rules and regulations. In addition to normal retirement benefits, the State Bank will provide the following financial and benefits package under the Golden Handshake Scheme to all employees:-- (a) Three (3) months Basic Pay for each completed years of service. or 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. Plus (b) 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.

2. The following normal retirement benefits will be available to the employees:-- (a) Employees who have completed 25 years of Service of More (i) Under Old Retirement Benefits.

Provident Fund own and Bank's contribution and 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 and 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, 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. (c) Leave Encashment subject to a maximum of 180 days. (d) 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. (e) Post retirement benefits (other than medical facilities) as admissible under the rules: (3) 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 oh 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, or may accept the option with such modifications as it deem appropriate keeping in view the interest of the Bank. (4) 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 amounts outstanding against and due from the employee, who opt in favour of the Scheme, will be liable to be adjusted against final settlement dues. Within about a week each employee will be sent a print out showing his/her approximate benefits if he/she was to avail of the package. He/she will have to given 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 Please acknowledge receipt Yours securely, (Sd.) (Shah Abdul Hassan) Director"

4. A careful perusal of the GHSS as reproduced hereinabove would reveal that it was totally "voluntary" in nature and it was optional for the A employees of the State Bank of Pakistan to accept it or otherwise. It was, however, made clear in the GHSS that option once exercised would be irrevocable. There was no element of inducement or compulsion. The relevant portion qua BFG is reproduced hereinbelow for ready reference:

(b) 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.

5. A bare perusal reveals that there can be no other payment after "final payment" and BFG equivalent to ten years payment whereof was to be made in lump sum. The said portion of the scheme from whatever angle it may be examined cannot be stretched too far to include payment of BFG on monthly basis for ten years or till the age of seventy years. It is not understandable how any deletion, amendment, addition or insertion can be made by us in GHSS specially when it is free from any ambiguity and does not call for scholarly interpretation. In fact the lump sum BFG was in lieu of monthly BFG for fifteen years which was to be paid under the normal/existing rules. We are afraid that both the benefits under GHSS as well as existing rules cannot be obtained. In fact the respondents had "impliedly" surrendered their "claim" to receive BFG on monthly basis for fifteen years or upto the age of seventy years "in lieu of lump sum payment" equivalent to ten years BFG. It is to be noted that every employee was made aware to remove any doubt or ambiguity by, means of a computer print indicating "the different and approximate benefits the said employee was to receive if he/she opted for this scheme. In other words, before any employee opted for this Scheme, it was absolutely clear to all employees about what benefits were part of this `Voluntary Golden Handshake Scheme'. A bare reading of this computer print clearly shows that this lump sum Benevolent Fund Grant was a final payment of his/her entitlement of the Benevolent Fund Grant and as a consequence, each employee opting for this scheme gave up his/her claim to receive a monthly Benevolent Grant. It is also important to note here that the aforementioned computer print does not all mention the employee as being entitled to receive the monthly Benevolent Grant either as a normal or additional retirement benefit".

6. We have also adverted to Circular No.20, dated 7-11-2000 which is reproduced hereinbelow for ready reference:-- "The revised rates of monthly grant will also be applicable to those employees who retired/died between 1-12-1997 and 31-8-2000 provided they or their family member(s) were entitled to such grant as on 1-9-2000."

7. A careful scrutiny of the Circular No.20 as reproduced herein above would reveal that it hardy renders any assistance to the case of petitioner because it cannot be given retrospective effect and it can be invoked by only those employees who were entitled to get such BFG on 1-9-2000 when admittedly the respondents were not in service and stood retired w.e.f. 15-12-1997. By no stretch of imagination the Circular No.20 can be made applicable retrospectively to those employees who, at the relevant time, were not in service of the State Bank of Pakistan on the date of issuance of the said circular. The employees who had obtained BFG equivalent to ten years in lump sum had no concern whatsoever with Circular No.20 being alien as retired employees. For instance if some enhancement is made after five or ten years in BFG whether the respondents would be entitled to it-certainly not because such enhancement cannot be claimed merely for the reason that once upon a time they were employees of the State Bank of Pakistan.

8. We have also adverted to regulation No.8(v)(c) of the State Bank of Pakistan Employees Benevolent Fund Regulation, which is reproduced hereinbelow:-- (a) Grant from Fund (v) If an employee (c) retires from the service of the Bank on or before attaining the age of superannuation, he/she shall be entitled to receive benevolent grant from the Benevolent Fund for period of 15 years or upto the date the employee attains the age of seventy years whichever is earlier according to scale specified in Schedule-III. "

9. It has been couched in a very plain and simple language and inter alia, provides that if an employee retires on or before the age of superannuation he would be entitled to get BFG for fifteen years or till he attains the age of seventy years whichever is earlier. It must not be lost sight of that above mentioned provisions would only be applicable; in normal course but an employee who opted for GHSS would be governed by the terms and conditions as enumerated therein. The existing rules concerning BFG have been substituted with lump sum grant equivalent to ten years of BFG for all those employees who had opted for GHSS. Both the advantages stipulated in regulation No.8(v)(c) and in GHSS simultaneously cannot be claimed. Once the option is exercised by an employee of the State Bank of Pakistan in favour of GHSS he would have no concern whatsoever with the subsequent changes and amendments in the policy/rule qua BFG specially after 15-12-1997 i.e. the date of retirement. The respondents should have not exercised their option for GHSS if they were interested in getting BFG for fifteen years. The respondents had not only exercised the option but received the amount as well without any protest worth the name. By no stretch of imagination it can be said that they were trapped to opt GHSS which was to be opted or otherwise by an employee "freely" and "voluntary": It was made clear in the scheme that:-- "(3) 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."

10. It was also provided in GHSS that within a week each employee will be sent a print out showing his/her approximate benefits if he/she was to avail of-the GHSS. He/she was also required to give his/her consent it writing to Chief Manager/Head of the Department on a prescribed form by 22nd November, 1997. The learned counsel when asked pointedly to show as to whether any protest was made in the prescribed form, no answer could be given and rightly so as no protest whatsoever was made by any of the respondents. The mechanism evolved by the Bank was neither ticklish nor tedious or complicated inferring that it was beyond the reach, capacity or capability of the employees to understand. It is worth-mentioning that computer print made available to the employees of the State Bank of Pakistan prior to exercising their option is indicative of the fact that the lump sum BFG was final payment of the respondents entitlement of the BFG and resultantly each employee opting for GHSS was required to give up his claim to receive monthly benefit 'grant. No where it has been mentioned in the computer print that an employee of the State Bank of Pakistan who opts for GHSS would be entitled to get double benefit available in the existing rules and that of GHSS. The respondents were fully aware that lump sum grant would deprive them for fifteen years monthly BFG and this was the reason that they kept mum for considerable long time and got up from the slumber after four years that too after issuance of Circular No.20, dated 7-11-2000. It transpired from scrutiny of record that first demand to get both the benefits was made in the year, 2001. The mysterious silence on the part of respondents is not understandable. The Circular No.20, dated 7-11-2000 which was neither applicable to the respondents nor can be made applicable without any lawful justification which is badly lacking in this case.

11. Much reliance has been placed on the words "in addition to normal retirement benefits" as used in GHSS cannot be interpreted in the manner to include double benefit, one under the existing rules which provide fifteen years BFG on monthly basis plus BFG equivalent to ten years in lump sum as monthly basis plus BFG equivalent to ten years in ID lump sum as embodied in GHSS. The words "in addition to" cannot be read in isolation which is to be interpreted in view of the overall scenario, particularly the scheme itself. If double benefit is granted to respondents what fault has been committed by those employees who stood retired during normal course and would be entitled to get one benefit only, which amounts to a sheer discretion. The words "in addition to" do not create any legal right which could be enforced. Moreover, the respondents are stopped from challenging a particular portion of GHSS being hit by the principle of latches. As mentioned hereinabove GHSS was accepted voluntarily is in fact a contract between the State Bank of Pakistan and its employees, interpretation whereof does not depend merely on the words "in addition to" referred time and again by Mr. Abdul Hafeez Pirzada, learned Sr. Advocate Supreme Court for the reason that "in order to resolve such ambiguity and to ascertain the real intention of the parties, can have resort to the correspondence preceding and/or subsequent to the execution of the contract document, conduct of E the parties and the attending circumstances." Sandoz Limited v. Federation of Pakistan 1995 SCMR 1431, Muhammad Akram v. Muhammad Salim PLD 1964 (W.P.) Lah. 490, Pakistan Tobacco Co. Ltd. v. Pak. Cigarette Labour Union PLD .1977 Kar. 586, Mehendra Nath Mandal v. Samsuddin AIR 1921 Cal. 146). The conduct of the respondents is indicative of the fact that they have accepted GHSS at their own for all practical purposes including BFG which is an integral part of GHSS. We have observed that during the initial round of litigation no claim to the effect that the respondents were entitled to avail both benefits under normal existing rules as well as GHSS was made and for this reason the basic judgments of this Court, dated 3-4-2001 and 19-1-2002 are silent in this regard. In our view piecemeal relief with gap of four long years cannot he granted which otherwise seems to be devoid of merits. The double benefit as claimed by the respondents has neither any rational nor logic but appears to be a half-hearted attempt made after four years.

12. It is well entrenched legal proposition that wherein appeal before departmental authority is time-barred, the appeal before the Service Tribunal would be incompetent. In this regard reference can be made to G cases titled Anwarul Haq v. Federation of Pakistan 1995 SCMR 1505, Chairman, PIAC v. Nasim Malik PLD 1990 SC

951. We are not persuaded to agree with Mr. Abdul Hafeez Pirzada, learned Sr. Advocate Supreme Court on behalf of respondent that cause of action being recurring, the question of any time limit does not arise because in our considered view it was never a recurring cause of action but on the contrary respondents were aggrieved from a specific portion of the GHSS which was admittedly launched on 23-10-1997. It is to be noted that respondents stood retired on 19-10-1997 and first demand qua BFG on monthly basis for 15 years was made after about four years i.e. 19-10-2001, meaning thereby that the policy as enshrined in GHSS was never challenged at opportune moment and no departmental representation challenging the GHSS regarding BFG was made within 30 days. How the respondents can be allowed to approbate or reprobate after the acceptance of GHSS in toto without any objection. How after a lapse of 48 months their appeal could be in time which aspect of the matter has not been properly adverted to and discussed by the learned Federal Service Tribunal and the appeals being barred by time should have been-dismissed.

13. In view of what has been discussed hereinabove we are of the considered opinion that learned Federal Service tribunal fell into error by accepting the appeals of respondents: The GHSS and Circular No.20 have not been examined in its true perspective which resulted into serious miscarriage of justice. The claim of respondents is totally baseless having no legal sanctity behind it. The petitions are resultantly converted into appeals and accepted. The judgment of learned Federal Service Tribunal, dated 24-1-2003 is set aside. M.H./S-36/S Appeal allowed.