' AQEEL AHMED ABBASI, J.---The instant petition is filed by number of ex-employees of the respondent No,2 i.e, Trustees of Port of Karachi (KPT), the petitioners voluntarily availed the Golden Hand Shake Scheme introduced by respondent No,2 in the year 1998. The petitioners covered, under the said scheme, opted for the benefits offered under the said scheme which inter alia, provided for extra benefits such as pension and medical payments against son quota and six extra salaries. The petitioners claim that in the said Golden Hand Shake Scheme, It was specifically provided that admissible pensionary benefits, 50% of which shall be commuted and 50% shall be paid monthly. As per petitioners, it was also agreed that pension and pensionary benefits would be increased as and when Government announces increase in pension and KPT itself introduces increase in pension and pensionary benefits for the retired employees. The petitioners continued to receive pension (at 50% basis) and still are in receipt of the same. As per petitioners claim, that Government of. Pakistan announced an increase in pension in the following years:
(i) 1999 20%
(ii) 2000 15%
(iii) 2001 5 to 15%
(iv) 2003 15%
(v) 2004 8 to 16%
(vi) 2005 10%
(vii) 2006 5 to 15%
(viii) 2007 15%
2. As per petitioners, that except for the year 2006 at 14%, no increase was allowed to the petitioners. Whereas they were entitled to an increase in their pensionary benefits, correspondingly to the increase allowed to Government employees/servants and officers of KPT. Since the respondents have refused to pay the pension at the enhanced rate/percentage announced by the Government for each subsequent year of retirement i.e, 1999 onward, the petitioners being aggrieved by such conduct of the respondents have filed the instant petition with the following prayer: "(i) direct the respondents to pay the petitioners, monthly pension at enhanced rate corresponding with Government pensioners and retired officers of K.P.T and to continue to pay on the same formula as would apply to others.
(ii) direct the respondent to pay to the petitioners arrears from 1998 onward at enhanced rate as stipulated in para 3 of this petition."
3. The learned counsel for the petitioners submitted that the respondent No,2 have withheld the pensionary benefits of the petitioners at the enhanced rate during the years 1999 to 2005, whereas for the year 2006 to 2008, pension at the enhanced rate has been given by the respondents.
According to learned counsel, the petitioners are being discriminated as officers of respondent No: 2, who likewise opted for the Golden Hand Shake Scheme have been' paid pension at increased/enhanced rate for each subsequent year viz 1999 onward. According to learned counsel for the petitioners, the petitioners have neither, been allowed pensionary benefits at par with the Government Servants and/or with the KPT Officers nor have been allowed any increase as bargained under the settlements between the CBA Union and the respondent No,2 during 1999 to 2007. While confronted on the point of lathes, as the Golden Hand Shake Scheme was availed by the petitioners in the year 1998 and their claim pertains to the last about 9 years, the learned counsel replied that the petitioners have been approaching the respondents and making correspondence with them, and after having received no positive response, have filed the instant petition.
4. The respondents have filed counter-affidavit to the petition and have also raised preliminary legal objections on the maintainability of the instant petition. Learned counsel for the respondents submitted that the instant petition is not maintainable as the same is based on distorted facts and frivolous pleadings. According to the learned counsel, the petitioners have approached this Court with unclean hands after having availed the benefits of the Golden Hand Shake Scheme introduced in the year 1998 with an intention to blackmail the respondents and to seek undue benefits which are not available to them. It is further argued that the reference to the pensionary benefits to the officers of the KPT is entirely misconceived as the terms and conditions of service of the workers and the officers are different, distinct and the same are governed under different laws, rules and regulations. Learned counsel submitted that the petitioners have attempted to distort the facts and have falsely attributed some purported agreement on behalf of the respondent No,2 relating to increase pension and pensionary benefits. He has referred to the counter affidavit filed by the respondent No,2 particularly para 3, 4 and 5, wherein specific denial of alleged discrimination has been madL Learned counsel vehemently argued that the petitioners are strictly governed by the Golden Hand Shake Scheme 1998, which is voluntarily opted by the petitioners.
Learned counsel referred to clause (1.3) (B) (C) and (D) which clearly defines that the Golden Hand Shake Scheme is offered with pensionary benefits as admissible to the employees in accordance to the length of service of the employee in each case. Learned counsel further referred to various paras of the counter-affidavit submitted by the respondents to show, that the respondents are consistent in their policy which is based on the terms and conditions of the employment of the workers and officers and their incidental benefits including the pensionary benefits are given as per rules and regulations. According to the learned counsel, the respondent No,2 has always been benevolent to its workers particularly at the time of retirement certain pensionary benefits, based on the length of service, have been given to the workers keeping in view the financial conditions of the respondent No,2. According to the learned counsel, the petitioners through instant petition are attempting to re-open a past and closed transaction by seeking amendment in the policy of respondent No,2 and in the terms of the Golden Hand Shake Scheme which was voluntarily availed by the petitioners in the year 1998, and therefore stands concluded for all purposes learned counsel has referred to the terms and conditions of the Golden Hand Shake Scheme introduced by the respondent No,2 on 8th of June, 1998 available at pages 17 to 47 of the file. Learned counsel for the respondent while concluding his arguments submitted that the instant petition besides being not maintainable in law is based on false and distorted facts the same may be dismissed with cost.
5. We have heard both the learned counsel and perused the record. It appears that the petitioners being employees of respondent No,2 opted for Voluntary Golden Shake Scheme for officers/employees of KPT issued by Karachi Port Trust (Administration Wing), vide GHS No,GM(A)/PS/68/102, dated 8th June, 1998, available along with its annexures at pages 17 to 33 of the file. It appears that incentives relating to pensionary benefits to the employees have been defined in clause B, C and D of clause 1.3 of GHSS, the same reads as follows:
(B) More than 10 years and upto 20 years of service The scheme may be offered to the employees with more than 10 years and upto 20 years of service equivalent to the pensionary benefits as admissible to employees with 25 years service including the commutation benefits.
(C) More than 20 years and upto 25 years ' The employees with more than 20 years and upto 25 years of service may be offered early pensionary benefits as admissible to the employees with 30 years of service including commutation benefits.
(D) More than 25 years ' The employees with more than 25 years of service may be offered maximum pensionary benefits including the commutation benefits.
' It is also pertinent to refer to clause 2.4 of the said GHSS, which reads as follows: 2.4 The option once exercised within the prescribed time limit can not be withdrawn by any employee All amounts outstanding against him, and due from the employees, who opt in favour of the scheme will be liable to be adjusted against final settlement of dues.
6. It appears that neither it has been argued nor anything has been placed on record to show that the scheme was not availed voluntary or there were any reservations on the part of the optees of such Golden Hand Shake Scheme, including the present petitioners. As per clause (c) of such scheme, employees with more than 20 and upto 25 years of service including the present were offered early pensionary benefits admissible to the employees with 30 years of service including commutation benefits. The petitioners having opted for the entire terms of the said Golden Hand Shake Scheme including clause (c) referred to hereinabove appears to have received all such benefits without any objection or reservations in this regard. It seems that after introduction of the.
Golden Hand Shake Scheme as referred hereinabove, the respondent No,2 has brought certain amendments relating to the terms and conditions including pensionary benefits of the officers and retired employees of the KPT. The petitioners having noticed certain beneficiary amendments, particularly relating to pensionary benefits of the officers as well as retired employees of the KPT, after the cut-off date when the petitioners had already availed all the benefits provided through Golden Hand Shake Scheme in the year 1998, approached the respondent No, 2 claiming additional pensionary benefits offered thereafter to the officers and the retired employees of the respondent No,
2. Such request was turned down by the respondent No,2 on the ground that after having availed the benefits, including the pensionary benefits, provided in the Golden Hand Shake Scheme for the year 1998, the petitioners cannot be allowed to open a past and closed transaction.
Maintainability of the instant petition has also been vehemently opposed by the respondent No,2 on the ground that the petitioners neither in fact nor in law are entitled for seeking the relief through instant petition. It has been vehemently argued by the learned counsel for the respondents. That the petitioners being the employees and optees of the Golden Hand Shake Scheme 1998 are different and distinct as compared to officers of respondent No, 2 whose terms of appointment and retirement are also different from the terms of the petitioners. Respondent in their counter-affidavit further stated that the employees who retire in the normal course of their service are also different and distinct class of the employees who are to be governed by normal retirement policy and respective service rules including pensionary rules and the same cannot be treated at par with the optees of Golden Hand Shake Scheme which, in fact, is in the nature of an agreement between employer and employee.
7. We are persuaded to agree with the contention of the learned counsel for the respondent to the effect that once the petitioners having voluntarily opted for the Golden Hand Shake Scheme introduced in the year 1998 shall be governed by the terms and conditions of such scheme in its entirety and cannot be allowed to wriggle out from such option which was availed voluntary without any objection or reservations in this regard. We are of the view that the petitioners are stopped from challenging a particular portion of Golden Hand Shake Scheme and such claim is hit by the principle of laches. Introduction of voluntary Golden Hand Shake Scheme by respondent No,2 and the petitioners having been opted for such scheme voluntarily without any objection has created a contractual obligation upon parties hence either party cannot be allowed to wriggle out of such contractual obligation. Under somewhat similar circumstances, while examining the terms of Golden Hand Shake Scheme introduced by State Bank of Pakistan for its employees this Court in the case of Syed Nasim Ahmed Shah and others v, State Bank of Pakistan and others SBLR 2010 Sindh 237 has observed that the petitioners after having opted for the entire Golden Hand Shake Scheme cannot be allowed to claim further benefits, in piecemeal, under normal existing rules which will tantamount to granting double benefits to the petitioners.
8. Division Bench of this Court while deciding the controversy in the above cited judgment reliance on the finding of the honourable Supreme Court in the case of State Bank of Pakistan v. Khyber Zaman and others 2004 PLC (C.S.) 1213, the relevant para is reproduced hereunder for the sake of relevancy:--- "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 UFO on monthly basis plus BFG equivalent to ten years in 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 retried during normal course and would be entitled to get one benefit only, which amounts to a sheer discrimination. 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 ' herein above GHSS was accepted voluntarily 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 the parties and the attending circumstances".
Sandoz Limited v. Federation of Pakistan 1995 SCMR 1431, Muhammad Akram v. Muhammad Salim PLD (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 be 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."
' As regards the case-law relied upon by the learned counsel for the petitioners, we are of the view that the ratio of the judgment relied and referred by the learned counsel for the petitioners are not attracted in the instant case as the same are based upon distinguishable facts. Moreover, in none of the cases relied upon by the counsel for the petitioners similar relief as claimed in the instant petition has been granted by the Court.
10. In view of the disputed facts and controverted claim of the parties, we are of the view that the relief sought by the petitioners cannot be entertained by this Court in its constitutional Jurisdiction.
Accordingly, the instant petition is dismissed along with listed application.
11. Before parting with this judgment we would like to clarify that the relief claimed through instant petition by the petitioners is being denied in view of the disputed facts and controverted claim of the parties which in our view cannot be resolved by this Court in its writ jurisdiction. It appears from the correspondence which ensued between the petitioners and the respondent, that the competent authority i.e, Chairman, K.P.T and the Concern Ministry appears to have not finally considered the demands of the petitioners nor any final order appears to have been passed so far.
The petitioners shall be at liberty to continue to pursue their remedy before the relevant authorities and the forums available under the facts and circumstances of this case and the said authority/forum shall not be prejudiced by the observations made in the instant petition, and shall decide the case of the petitioners as per law, rules and policy keeping in view beneficial construction as required in such matters.