' SHAHID ANWER BAJWA, J.--- With the consent of the learned counsel these Constitution Petitions were finally heard at Katcha Peshi stage and are being decided accordingly. Petitioners in all these Petitions were Employees of National Bank of Pakistan (hereinafter referred to as the respondent Bank). A voluntary Golden Hand Shake Scheme (GHS) was circulated in 1997 which provided for, amongst others, the following benefits.
(i) Separation package; (3) months basic pay for each completed year of service or one and half months basic pay for each remaining month of service, whichever is less, subject to a maximum of 90 months;
(ii) Normal retirement benefits to those with more than 25 years service; 50% commutation of pension for those with less than 25 years service.
(iii) Leave encashment upto 50% of leave subject to a maximum 180 days;
2. The Petitioners opted for separation under the scheme and their options, were accepted and they were relieved on different dates in 1998.
3. On February 27, 1998 Board of Directors of the respondent Bank decided to grant ad hoc relief to employees with effect from 1-1-1998. These Constitution Petitions were filed by the petitioners with a prayer that their benefits be calculated on the basis of their last emoluments as on their respective last working, days and for this purpose ad hoc relief be also included in the benefits. Learned counsel for the petitioners referred to a judgment of Supreme Court in the case of National Bank of Pakistan v. Siddique Akber Civil Petition No,350 of 2003, Tarachand v. Karachi Water and Sewerage Board, Karachi, 2005 SCMR 499=2005 PLC (C.S.) 368; Islam Ahmed v. National Bank of Pakistan, Constitution Petition No,D-1268 of 2007 decided by a Division Bench of this Court on 20-2-2009 and contended that petitioners are entitled to both the calculation on basis of last emoluments as on the last date of working day and inclusion of ad hoc relief for the purpose of computation of their benefits.
4. Chaudary Muhammad Ashraf Khan learned counsel for the Respondent-Bank referred to the last para of Circular dated February 27, 1998 which provided that those who opted for GHS would not be entitled to the benefits of ad hoc relief. Learned counsel also referred to para 14 Or the comments where it is stated that since the Petitioners had accepted GHS benefits and signed certain documents in this regard they were no longer aggrieved persons so as to be entitled to maintain the Petitions. Learned counsel referred to the orders passed by the honourable Supreme Court in S.M. Tanvir Nusrat v. National Bank of Pakistan Civil Petition No,1261 of 2002 (decided on 6-10-2003) and Rana Abdul Ghafoor v. N.B.P. And 3 others Civil Petition No,3378-L of 2001 (order dated 13-10- 2005). Learned counsel submitted that as far as judgment of Division Bench of this Court in the case of Islam Ahmed (supra) is concerned the honourable Supreme Court in N.B.P. v. Naseem Arif Abbasi and others Civil Petition No,342-K of 2009 on 8-5-2009 not only granted leave to appeal but has also suspended operation of the impugned Judgment.
5. We have considered the submissions made by the learned counsel and have also gone through the record.
6. The questions involved in this Petitions are very simple: Firstly whether the Petitioners are entitled to payment on the basis of their emoluments as on the last date of their respective employment and secondly whether ad hoc relief granted vide Circular dated February 7, 1998 is to be included in the emolument for the purpose of compensation of benefits under the GHS. It may be appropriate to first refer to case law cited by the learned counsel. In Siddique Akber's case (supra) the respondent in the Supreme Court was employed as clerk cum-typist in National Bank of Pakistan.
He was dismissed from service in 1883 and was ordered to be reinstated in service by the Labour Appellate Tribunal in 1990. Writ petition was filed in the High Court which abated on 7-6-1997 upon insertion in section of 2-A in the Service Tribunals Act. The GHS was floated in 1997. Siddique Akber opted for it and his option was accepted and he was relieved in 2000. The Supreme Court held that he was entitled to the benefits on the basis of the date when he was actually relieved from service.
In Tarachand's case (supra) it was held that if a point of law is decided by the Supreme Court, benefit of such Judgment must be given to other persons who might not have litigated. In Islam Ahmed's case (supra) a Division Bench of this Court relied upon Siddique Akber's case (supra) and it was ordered primarily that pensionery/retirement benefits be calculated on the basis of pay as on the actual date of relieving from duty.
7. On the other hand Chudary Muhammad Ashraf Khan learned counsel for the respondent Bank relied upon Rana Abdul Ghafoor's case (supra) the entire Judgment is in the following words:- "Petitioner having opted to severe his relationship with the National Bank of Pakistan under the Golden Handshake Scheme issued vide Circular No,PMW/97/22 dated 13-10-1997 receiving Rs,7,36,426.44, sought a direction in the nature of mandamus from the Lahore High Court through Constitutional Petition No,1899 of 1999 tending to claim an additional sum of Rs,1,00,000 on the basis of an increment reportedly pertaining to the year 1993 which was declined vide the impugned judgment dated 20-9-2001 for having failed to substantiate the same, he sought leave to appeal.
(2) With, which we are not impressed because had the acclaimed increment been due to the petitioner he should have had a recourse to the appropriate legal proceedings at the relevant time; independent thereof the claim, if any, is deemed to have been waived by accepting the sum under the Golden Handshake Scheme as full and final settlement at the time of parting of ways.
Resultantly, the petition being devoid of any substance facts and is hereby dismissed. Leave declined."
' In Tamir Nusrat's case (supra) the entire judgment is in the following words:- "Heard learned counsel for the petitioner and caveator and perused the record.
(2) Contention of learned counsel for the petitioner is that he should have been given financial benefit from 31-10-1997 and not from 5-12-1998.
(3) The petitioner being entitled to monitory benefit from the cut of date i.e, 31-10-1997 would not be entitled to claim such benefit from 5-12-1998 considering that he himself stated the he would have no further claim against the respondent whatsoever financial or otherwise. The petitioner before the Tribunal has also accepted the judgment pronounced earlier as mentioned in the impugned judgment therefore he could not be permitted to approbate and reprobate.
(4) We find no merit in the contention, besides no substantial question of law of public importance is involved, therefore leave to appeal is declined and the petition is dismissed."
8. A perusal of the above case-law indicates that the ratio of Siddique Akber's and Islam Ahmed's cases is that benefits are to be computed on the basis of last day in service. Question involved in Rana Abdul Ghafoor case was relating to an increment of 1983 and it was held that the Petitioner should have initiated appropriate legal proceedings for that increment and what weighed with the Court was non-claiming of increment from 1993 to 1997 by that petitioner. In Tanvir Nusrat's case (supra) one of the factors which weighed with Supreme Court was that the petitioner before the Tribunal stated that he had accepted the Judgment pronounced earlier therefore he could not be allowed to approbate and reprobate at the same time. The law now is fairly well-settled. Starting from Khyber Zaman v. State Bank of Pakistan and others 2005 SCMR 235 to Board of Trustee of KPT v. Organization of KPT Workes' and 2 others 2009 SCMR 994 there has been consistent view of the Supreme Court that the benefits must be calculated on the basis of pay as on the last date of service.
9. Here I may deal with two of contentions of Chaudary Muhammad Ashraf Khan. Learned counsel referred to receipts signed by the petitioners where the petitioners undertook that with the payments having been correctly made had no claim against the National Bank of Pakistan.
Contention of Chaudary Muhammad Ashraf Khan was that having received the payment the petitioners were no longer aggrieved persons. The contention is obviously misconceived and it has been held by the Supreme Court in General Manager National Radio Telecommunication Corporation, Haripur District Abbotabad v. Muhammad Aslam and 2 others 1992 SCMR 2169 that mere acceptance of legal dues by an employee does not render him a person who is not aggrieved. Second contention of learned counsel was with reference to the Circular dated February 27, 1998 (by which circular ad hoc relief was granted) where the last Para stated that the benefit shall not be applicable to those employees who had opted for GHS. When a particular benefit is granted by an employer though it may be available to an employer to make a distinction between those still in employment and those who have ceased employees, but there must be very compelling reasons and sturdily reasonable grounds for discrimination between employees who are still in employment. We have not been able to find any reasonable basis for granting benefit of ad hoc relief to other employees but denying it to those who though have opted for GHS but have been continued in employment by the employer. In this view of this situation the conclusion is un- avoidable that employee must be paid and compensated on the basis of benefits applicable to him as on the last date of his service.
10. Having answered the above first question now we come to the second question i.e, whether the ad hoc relief is to be included in the benefit under GHS. A perusal of the GHS Circular indicates that most of the benefits are based on basic salary. This is the case for compensation and pension also Ad hoc relief is not basic salary. Nothing has been placed on record, by the petitioners that before their dates of separation, the ad hoc relief had been merged, if at all it was, in the basic salary, therefore since compensation and pension are based on basic salary, the fact ad hoc relief was allowed with effect from when the petitioners were still in service, would not make an obligation of the respondent Banks to include ad hoc relief for the purpose of calculation of Golden Hand Shake Scheme benefits. However, if for any benefits was based on gross emoluments, the petitioners shall also be entitled to such inclusion of the ad hoc relief for the purpose of such other benefits.
11. Result of the above discussion that it is held that the petitioners are entitled to calculation of benefit on the basis of their emolument as on the last working day of their office. It is also held since ad hoc relief is different from basic salary they are not entitled inclusion of ad hoc relief for the purpose of, compensation or commutation of pension. However, if any benefit under GHS was based on gross emoluments the same benefit would be given to the petitioners by including ad hoc relief in it. These Constitution Petitions are disposed of in the above terms.