' QAZI MUHAMMAD HUSSAIN SIDDIQUI (MEMBER)---On being aggrieved and dissatisfied by the acts of respondents whereby the terms of the retirement of appellant were not fulfilled by the respondents against which a departmental appeal was preferred to the Chairman, Pakistan Steel on 8-9-2001 which remained unanswered; hence, the appellant filed this appeal before the Tribunal on 7-1-2002 under section 4 read with section 2-A of the Service Tribunals Act of 1973.
2. The facts leading to this appeal are that the appellant joined the Respondents-Organization on 10-10-1984 and since then he had been performing his duties with devotion and dedication with.
Any complaint by any of his superior officers about his work, conduct and physical condition till his retirement on medical grounds on 21-9-2000.
3. It is the case of appellant that the management of respondents had deliberately and with ulterior motives spread rumours in the Pakistan Steel Mills that a large number of employees were being sacked from the Pakistan Steel Mills on the pretext of right sizing policy of the Government. As such, the appellant succumbed to such threats and apprehension prevailed in the Pakistan Steel Mill, therefore, having been impressed by the incentive of premature retirement scheme, he applied for premature retirement on medical ground on 31-8-2000 although he was fully fit and sound in health. Under the circumstances, he stood retired from the service of Pakistan Steel Mills vide memorandum dated 21-9-2000. As per said memorandum as ex-gratia compensation of Rs,2,00,000 was recommended as per provisions para (a) of Circular No,A&P-98-4/1 (P&C) dated 18-12-1998. Such ex-gratia was allowed in addition to all other normal benefits like gratuity contributory provident fund and benevolent fund etc., admissible under the Rules Before the issuance of above-mentioned memorandum, a Medical Board was set up on 15-9-2000 which opined that the appellant had been suffering from osteo arthritis both knee an joints H/O generalized strain skin disease due to chemical and dust since 2000. The Board recommended the ex-gratia amount, as mentioned above including the other normal benefits which also included EOBI benefits/pension and benevolent fund grant etc. The appellant was advised vide memo.
Dated 20-9-2000 to produce no demand certificate from all the concerned departments of Pakistan Steel for final settlement of his accounts/dues. He obtained such no demand certificate from all the 32 relevant departments on 21-9-2000 and submitted the same to all the concerned for settlement of his legal dues including ex-gratia and other normal benefits, as mentioned above.
The Appellant was then relieved from COBP Department on 21-9-2000.
4. It has further been mentioned in the memo. Of appeal that since his retirement appellant had been continuously requesting all the concerned personnel of the respondent No,1 for settlement of his legal dues, but the entire amount particularly the ex-gratia amount was not paid to him. He claimed that in all a sum of Rs,2,50,000 was less paid to him and wrong deductions were made from the amounts due to him. He also complained that under the agreement between management and the CBA House Building Finance was free from any mark-up, but the respondents also charged the same and deducted the amount of mark-up from the amount due to be paid to him. Under these circumstances, the appellant had to file application for recovery of his outstanding amount before the Authority under the Payment of Wages Act and Workmen Compensation Act, 1923, East Division, Karachi, which was till then pending decision. He approached the EOBI for invalidity pension as per Regulation of E0B) 1981, but the EOBI declined to grant such pension to him on the ground that invalidity degree of the appellant was below 50%.
The appellant further stated that in spite of relevant documents submitted to the Manager (Pay Roll), the monthly benevolent grant had also not been released to him on one pretext or the other, hence, this appeal with a prayer to order the respondents to reinstate him in service with all consequential benefits declaring the order of respondents dated 21-9-2000 whereby the appellant was retired from service on medical grounds illegal, without lawful authority ab intio.
5. In the written comments, filed on behalf of the respondents it was stated that the appellant had voluntarily applied for retirement on medical grounds and he was examined by the Medical Board on the recommendation whereof he was retired after completing all the formalities; that the appellant had himself submitted no demand certificate and had received the retirement benefits.
It was stated that the appellant had not challenged the authenticity of the report of Standing Medical Board; that no pressure whatsoever was exerted upon the Appellant or any one else to accept the retirement scheme; that so far as the pension and benefits under EOBI were concerned, these were to be dealt with by the EOBI under its own Rules and respondents had no concern with it; that it was clearly mentioned in the last para. Of the Medical Report dated 15-2-2000 that the EOBI benefits/pension and benevolent grant etc., were subject to admissibility as per rules; that the benevolent fund grant could not be released to the appellant for want of certain formalities, which the appellant failed to comply. As to the contention of appellant to have .Been quite fit for duty before his examination by the Medical Board, it was refuted by the respondents maintaining that the appellant already had a history of skin disease in 1986 for which he had applied for medical leave and was examined by a Medical Board on 4-6-1986. It was denied that the Medical Report in respect of the appellant was false for bogus. About departmental appeal it was stated that it was examined by the respondents. The relief of reinstatement claimed by the appellant was denied as he was retired on his own request on the report of the Standing Medical Board of the Respondents.
6. We have heard the learned counsel for the parties and perused the record as well as the authorities cited at the bar.
7. The learned counsel for the appellant argued that the acceptance of retirement scheme was not voluntary in view of the fact that he was impelled to accept such scheme due to rumours of retrenchment and downsizing spread by the respondents, which amounted mala fide and mischief on the part of the respondents. He argued that the appellant was fit for performing his duties, but he was made to accept retirement on a fake and bogus medical report. He stated that offer of retirement benefits by the respondents and acceptance thereof by the appellant was binding contract which was violated by the respondent by not making payment of benefits in accordance with the benefits such as the EOBI pension and the benevolent fund grant as mentioned in the medical report as also the memorandum dated 20-9-2000; that the respondents illegally charged mark-up on the house building loan of the appellant although it was a mark-up free loan; that inspite of demand made by the appellant for constituting a fresh medical board for determination of his fitness and reinstating him in service, no heed was paid by the respondents to his request.
The learned counsel for the appellant requested to order the respondents to get the appellant examined by an independent Medical Board and if the appellant be found fit he reinstated in service in accordance with F.R. 10-A under which it was the fundamental right of the appellant to be reinstated in service. In support of his various contentions, the learned counsel for the appellant relied on 1998 PLC (C.S.) 1121, PLD 1994 SC 647 and an reported judgment of this Tribunal dated 31- 3-2004 passed in Appeal No,873 (K)(CE)/2002.
8. The learned counsel for the respondents rebutted that above-mentioned arguments of the learned counsel for the appellant by reiterating the averments made in the written comments.
9. Three points for determination arise in this appeal viz:-
(a) Whether the appellant was made to accept the VRS by the respondents in any way against his free will?
(b) Whether the VRS benefits account had not been settled by the Respondents and he was not paid the entire amount of the benefits under VRS?
(c) Whether the appellant is entitled to reinstatement in service/
10. On the above points, our findings along with reasons therefor, are as under:--
(a) The learned counsel for the appellant argued that by spreading false rumours of downsizing and retrenchment by the Respondents, the appellant was impelled to accept the VRS against his free-will on medical grounds although he was fit and healthy at the relevant time. The learned counsel for the respondents rebutted such arguments by pointing out that it was not only the appellant, but also many other employees of the Respondents who had voluntarily accepted the scheme of retirement. He pointed out that the Appellant had of his own free-will, made an application for retirement on medical grounds and he was retired on such ground after being examined by a competent Standing Medical Board comprising three senior Medical Officers. The learned counsel argued that the Appellant had a history of skin disease, which was evident from his own application made to the Authority under the Payment of Wages Act Workmen Compensation (annexure 'I') that the appellant had never challenged or object to the medical report, and had happily accepted the VRS bencfits that the Appellant had although been agitating for payment of the EOBI benefits and the benevolent fund grant, but he had never sought the withdrawal of his option of voluntary retirement. The learned Counsel for the appellant argued that the Appellant could withdraw his opinion of retirement at any time and for that he relied on the judgment of this Tribunal in Appeal No,873 (K) (CE)/2002. A perusal of such judgment shows that it is not applicable to the facts of the case of appellant, as in that case the Appellant had withdrawn his option before his retirement, therefore, his appeal was allowed and he was ordered to be reinstated. Agreeing with the learned counsel for the respondents, our finding is that there is no evidence on record to show that the Appellant was in any way made to accept the VRS against his own free-will. There appears to us no mischief or mala fide on the part of respondents, as argued by the learned counsel for the appellant. On the contrary, if the plea of appellant that he was hale and hearty and fit for duty at the relevant time, were accepted, then it would lead to the conclusion that the appellant had, with mala fide intentions, made application for his retirement on medical grounds only in order to grab more money which he would have not been entitled in case of retirement otherwise than on medical grounds. We are thus not impressed by the arguments of the learned counsel for the appellant that the appellant was retired by mischief or with mala fide.
(c) As per memo. And the medical report, the appellant was entitled to receive a sum of Rs,2,00,000 as ex-gratia compensation in addition to other normal benefits viz; gratuity, contributory provident fund EOBI benefits/pension and benevolent fund grant etc, admissible to him. The record of the respondents shows that the appellant was entitled to exgratia grant of Rs,2,00,000 plus a sum of Rs,7,285 being encashment of earned leave for 51 days. The total of this amount comes to Rs,2,07,285 out of which a sum of Rs, 1,05,106.48 was deducted. The break up of this amount is as under:--
1. 10 days overpayment for Sept 2000 Rs .3284.00
2. Welfare Loan Rs .7000 . 00
3. H.B. Loan Rs,82153.48
4. Income Tax Rs,12500.00
5. Professional Tax Rs,150.00 ' After deduction of the above-mentioned amounts, the net payable amount comes to Rs,1,05,108,48.
11. In his letter (annexure 'H'), the appellant had himself admitted to have received three cheques from the respondents as under:- First Cheque Gratuity 71997.50 21-10-2000 Second Cheque Final Cheque 102178.52 20-11-2000 Third Cheque Pro. Fund 144828.00 7-12-2000 ' In this letter, the appellant has requested for further payment of the remaining amount of benevolent fund. He has not specified the remaining amount, but so far as benevolent fund monthly payment is concerned, the contention of the respondents is that that same could not be paid to the appellant as he had failed to fulfil the requisite formalities. This shows that the respondents had never refused to pay the monthly grant to the appellant. The learned counsel for the appellant severely criticized the respondents for non payment of EOBI benefits to the appellant which he termed as contravention of the contract. In this respect, the contention of the learned counsel for the respondents was that the EOBI had their own rules and regulations for making payment to an invalid or disabled employee and that the respondents had no concern with such payment by the EOBI. We think that the contention of the learned counsel for the respondents is correct. If, for any reason, the EOBI had not entertained the request of appellant for payment of invalid pension/benefits to the appellant, the respondents cannot be held responsible for that.
12. About charging of mark-up on HBFC loan (deducted by the respondents from VRS benefits) the learned Counsel for the respondents explained that mark-up on such (mark-up free) loan was charged because the appellant failed to produce any mortgage deed in respect of house purchase building from such loan. Non-submission of the mortgage deed is not denied. In the absence of mortgage deed it will be presumed that the appellant had not utilized the loan for the purpose it was advanced to the appellant; hence, charging of mark-up on HBFC loan by the respondents was justified. About other deductions, the learned Counsel for the respondents could not advance any convincing arguments.
' On this point, the learned counsel for the appellant argued that inspite of voluntary retirement an employee are entitled to be reinstated if he regained the health or fit performing his duty and for that, according to him, the appellant could approach the concerned authorities at any time. The learned counsel argued that it was the fundamental right of the appellant to do so as the appellant was entitled to be reinstated under F.R. 10-A. In this connection, he has referred us to the two authorities reported in 1998 PLC (C.S.) 1121 and PLD 1994 Supreme Court 647.
13. The learned counsel for the respondents had vehemently opposed the reinstatement of the appellant arguing that for about one year, the appellant remained silent and had never sought withdrawal of his retirement and had belatedly taken such plea after a year in his departmental appeal on 8-9-2001. He forcefully contended that it was not the fundamental right of appellant to be reinstated in service after the VRS transaction had become a chapter past and closed. He relied on an unreported judgment of the Hon'ble Supreme Court in Appeal Nos.217-K to 219-K of 2002 dated 4-7-2002.
14. We have carefully considered in the arguments of both sides and perused the authorities cited by them. It is true that after accepting VRS of his own free-will, as already discussed above, the retirement of Appellant would have become a chapter past and closed as held in 2000 PLC (C.S.)
667 but in view of the fact his case is skin to the case reported in PLD 1994 Supreme Court 647 in which in spite of extreme delay in seeking reinstatement on the identical facts, as that of the appellant, the appellant in that case was reinstated although he was retired w,e,f, 30-7-1983 and was allowed invalid pension, but he had made an application on 16-2-1985 for his reinstatement on which he was ordered to be reinstated in service subject to his fitness to be determined by a Medical Board to be constituted by the Director General Health and return of the benefits received by him to the respondents. The above-mentioned authority does not apply to the case of appellant, as Fundamental Rule 10-A Civil Service Regulation-519 apply to the Government servants and not to the employees of the corporations like the Respondents herein. It has been held in 2002 PLC (CS) 526 (Supreme Court of Pakistan) in the famous case of Dr. Anwar Ali Sahto and another v. Federation of Pakistan and others as under:-- "Mere facts that the Corporation/Company's employees could competently invoke the jurisdiction of the appropriate Tribunal under S.2-A, Service Tribunals Act, 1973 would not ipso facto, have the effect of applicability of all laws relating to Government servants to such employees."
15. It has not been shown by the learned counsel for the appellant under what law or rule of the respondents, statutory or non-statutory, the respondents were liable to get the appellant re- examined in case he had regained fitness after his retirement. The learned counsel for the respondents pointed that nothing of the sort was envisaged in the Voluntary Retirement Scheme of the respondents. We agree with the contention of the learned Counsel for the respondents.
16. In view of what has been said above, we are not inclined to accede to the request of appellant to reinstate him in service. As such, we dismiss his appeal with no order as the costs. The respondents will be at liberty to re-consider the request of the Appellant in view of the authority of the Hon'ble Supreme Court, referred to above, as the Appellant being a skilled worker had long service of about 15 years at the time of his retirement, but this will be subject to conditions, mentioned above.
17. Copies of the judgment to sent to the parties and to the relevant quarters.