' MOAZZAM HAYAT (MEMBER).--- Appellant Muhammad Iqbal Khan was an Officer Grade-III, in the Branch Office of Small Business Finance Corporation, Hafizabad. The Corporation floated a scheme called Voluntary Separation Scheme. Options were solicited from the employees for separation/retirement. The appellant also opted for premature retirement under the scheme. He was accordingly retired vide order, dated 16-10-2000. His departmental appeal dated 13-11-2000 against his retirement was rejected on 30-11-2000. The appeal rejection order was received by him on 4-12-2000. It is the legality and validity of the order, dated 16-10-2000 and the order, dated 30- 11-2000 which is challenged by him in his present appeal wherein he has prayed that this order be set aside and be reinstated into service with back benefits.
2. The mainstay of the appellant's case is that he had withdrawn his option on 22-7-2000, therefore, it could not be accepted by the respondents on 13-11-2000.
3. The respondents have resisted the appeal maintaining that under the scheme option once exercised could not be withdrawn by the appellant. It is further submitted that the appellant had not withdrawn his option.
4. We have heard the learned counsel for the parties and have also perused the record.
5. There are two questions which require to be resolved, firstly that whether the appellant had withdrawn his option for retirement in time before its acceptance and secondly that whether the appellant could withdraw his option after exercising it. As to the first question it is conceded by the respondents in para.3 of their written objections that the appellant had sent an application for the cancellation of his option exercised under the Voluntary Separation Scheme. The application was submitted by the appellant on 22-7-2000. A copy of that application is on record. From the documentary evidence produced by the appellant and in view of the admission made by the respondents in their objections we hold that the appellant had withdrawn his option before its actual acceptance by the respondents.
6. On point No,2 the learned counsel for the respondents has vehemently argued that under the scheme the appellant could not withdraw his option after exercising it. According to him the scheme was totally voluntary in nature and there was no element of inducement or compulsion in it, therefore, option exercised under it was irrevocable. In this regard the contention of the appellant is that he had not exercised his option voluntarily but it was the result of harassment perpetuated by the respondents. Reliance in this regard has been placed by him on the affidavit of one Munawar Ahmad who at the relevant time was Manager of the Hafizabad Branch of the respondent-Corporation. It is stated in the affidavit that the appellant was not willing to sign the option form but he was compelled to sign it when his case for promotion was stopped by the senior officers. We are not prepared to believe that the appellant had exercised his optimi under any coercion or pressure. We are also not prepared to rely on the affidavit of Munawar Ahmad as it was not annexed with the memo. Of appeal but was filed at a very belated stage after the respondents had filed their objections. The replication filed by the appellant was also not authorized since it was submitted by him without any direction/order of the Tribunal. A replication can be filed only when permission for filing it is granted by the Court. But we agree with the appellant that since he had withdrawn option before its acceptance, therefore, he should not have been retired notwithstanding the stipulation in the scheme that option once exercised could not be revoked. The scheme introduced by the respondents was an offer made to the appellant to enter into a contract. Before the completion of the contract i,e, acceptance of his offer for retirement, he had made a representation that his option be deemed to have been withdrawn. Thus, before the contract could be completed between the appellant and the respondent-Corporation the appellant had withdrawn his offer. The respondents were, therefore, not justified in ordering his retirement.
7. Similar schemes for retirement were introduced by various organizations, governed and controlled by the Government of Pakistan. The State Life Insurance Corporation of Pakistan had also introduced Voluntary Retirement/Separation Scheme for its employees. Under that scheme Rana Ashiq Ali, Altaf Hussain and Malik Muhammad Tanveer Awan were retired notwithstanding the withdrawal of their options for retirement. These three persons challenged their retirement orders by filing Appeals Nos.704, 714 and 725(L)(C.E.) of 2000. The appeals were accepted by a Bench of this Tribunal comprising Mr. Imtiaz Ali Khan and Mr. Moazzam Hayat, Members (Judgment having been recorded by Mr. Moazzam Hayat, Member). A similar objection was raised that option for voluntary retirement once exercised could not be cancelled/revoked/withdrawn or changed by the staff members. On this issue following findings were recorded in the aforementioned judgment:-- "(9) On 29th December, 1997 an office Memorandum No,35/2/97- RW.III was issued by the Government of Pakistan, Cabinet Secretariat (Establishment Division). It was mentioned in para.2 of this memorandum that:-
(2) Since the implementation of the scheme has now been deferred, it has been decided by the competent authority that the Government servants who have either applied for withdraw or want to withdraw their options for retirement under the above scheme may be allowed to do so.'
Under this office memorandum, Government Servants had been allowed to withdraw their options for retirement. It is argued by the respondents that this memorandum was applicable to the Government Servants only and not to the employees of the respondent-Corporation. We are afraid this argument of the respondents cannot be upheld. Section 2-A has been inserted in the Service Tribunals Act, which is as follows:- 2A. Service under certain corporation etc. To be service of Pakistan.-- Service under any authority, corporation, body or organization established by or under a Federal law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest is hereby declared to be service of Pakistan and every person holding a post under such authority, corporation, body or organization shall be deemed to be a civil servant for the purpose of this Act.'
' It is clear from the reading of this section that service under any authority, corporation established by or under a Federal law or which is owned/controlled by the Federal Government or in which the Federal Government has a controlling share or interest is hereby declared to be the service of Pakistan and every person holding a post under such authority, corporation etc. Shall be deemed to, be a civil servant for the purposes of this Act. In view of this provision of law, we find that the appellants who are employees of a Corporation owned and controlled by the Federal Government had acquired the status of civil servant. It cannot therefore, be said that the aforementioned office memorandum is not applicable to them. The appellants had given their options and had withdrawn the same after the issuance of this office memorandum and they had every right to withdraw their options in view of para.2 of the said Ordinance mentioned above.
(10) For the above reasons we hold that clause-VIII of the Golden Hand Shake Scheme did not affect the rights of the appellants to withdraw their options for retirement. A civil servant can withdraw his request for retirement before his retirement is notified or retirement order is conveyed to him. In the present case, the appellants had exercised their right before they were actually retired. As such the impugned orders of their retirement were not legal."
8. Aforementioned appeals were accepted and the appellants of the said appeals were reinstated into service with back benefits. Against the judgment of the Tribunal the State Life Insurance Corporation of Pakistan filed Civil Appeals Nos.1739-1741 of 2002 in the apex Court. Vide the judgment, dated 18-9-2003 a Bench of the apex Court comprising Mr. Justice Munir A. Sheikh, Mr. Justice Rana Bhagwandas and Mr. Justice Faqir Muhammad Khokhar dismissed the appeals. The judgment of the apex Court is reproduced in verbatim as under:-- "Munir A. Sheikh, J.--- By this judgment we intend to dispose of all the above appeals as common questions of law and fact are involved in all these appeals.
(2) 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 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.
' In the peculiar circumstances of these cases, we are not inclined to interfere in the matter in our discretion under Article 185 of the Constitution, as justice has been done. Dismissed."
9. The judgment of the Tribunal dated 2-10-2002 on the same issue has been upheld by the apex Court. Not only that the Honourable Supreme Court was pleased to hold that justice had been done. Since the judgment of the Tribunal has been confirmed by the apex Court, therefore, we feel no hesitation in following it as the facts of the present case are also the same. We hold that the appellant was competent to withdraw his option, before its actual acceptance and this is what he did.
10. The principle of "approbation and reprobation" is not applicable to the facts of the present case since the respondents have admitted that the appellant has hot received his pensionary benefits to date. The non- acceptance of pensionary benefits is a sufficient proof of the fact that the appellant was not willing to go on retirement. From his conduct we are satisfied that he had requested for cancellation of his option for retirement before it was accepted by the respondents vide the impugned order.
11. For the above reasons we accept the appeal and set aside the impugned order. The appellant is reinstated into service with back benefits. The respondents shall, however, determine as to whether the appellant was employed and was carrying on some business or gain during the intervening period. If he was not employed or working for gain in that period he shall be paid his back benefits.
12. There shall be no order as to costs. Parties be informed.