SALMAN HAMID, J. --- Brief facts of the petition for its disposal are that the Petitioner was employed with the Respondents No. 2 in February, 1979 as a Typist-cum Assistant in Scale-6. Promotions were made with the result that he came into the management cadre as a Legal Officer in April, 1996.
Relevant increments and revisions in the salaries of the Petitioner were given by the Respondent No. 2 upto 30th June, 2000.
2. In April, 2001 Respondents Nos. 2 & 3 introduced a Voluntarily Separation Scheme (VSS) for which the Petitioner opted and accordingly a Letter of acceptance dated 14.05.2001 was issued by Respondent No. 3 to him. It was mentioned in the Letter that he would be released from the Respondent company latest by 30th June, 2001. However, from 30th June, 2001 upto 23.07.2003 the Respondents Nos. 2 & 3 with regular intervals of three months kept extending the period of separation. The Petitioner was ultimately separated from Respondent No. 2 on 30th September, 2003.
3. In the meanwhile the Respondents Nos. 2 & 3 in terms of their 134th meeting revised the pay scales (Revision of Pay). This Revision was made effective from 01.07.2002. Since the Petitioner on the date of the 134th meeting was still working with the Respondents Nos. 2 & 3 he requested that the benefit of such meeting be also extended to him. This was declined. The Petitioner under protest at the time of his retirement on 30th September, 2003 received an amount of Rs. 653,574/-.
4. The Petitioner in the first instance preferred an appeal with Respondent No. 2, the main grounds of which were that since he was retained in service upto 30th September, 2003, he was entitled for such benefits as were given to all other employees of the Respondent No. 2 vide its 134th meeting.
This Appeal apparently did not bear any fruit.
5. The Petitioner then filed an appeal before the Federal Service Tribunal, Karachi which became ripe for regular hearing. In the meanwhile the Hon'ble Supreme Court of Pakistan delivered its judgment in the case of Mubin-us-Salam v. Federation of Pakistan and others (KLR 2006 SC 286) whereby such appeal abated. A period of 90 days was however granted by the apex Court to the petitioner to approach the appropriate forum for redress. This Petition is an outcome of the above decision,
6. On the basis of above facts, learned Counsel for the Petitioner, Mr. Shahid Qadeer submitted that the Respondent No. 2 in its 134th meeting held on 22.08.2002 revised pay scales of its employees, with effect from 01.07.2002. Since the Petitioner despite availing VSS dated 13.04.2001 was still under the employment of Respondent No. 2 and that too at their instance he also became entitled to the revision of his pay at the time of his retirement/separation on 30.09.2003.
7. To prove Petitioner's entitlement to the revised pay scales, learned Counsel relied upon various letters viz. 14.05.2001, 28.06.2001, 28.12.2001, 29.03.2002, 26.06.2002, 30.09.2002, 01.11.2002, 01.01.2003, 03.04.2003, 23.07.2003, addressed by the Respondent No. 2 to the Petitioner. All the letters stated that, ".................. You shall be released from your duty latest by ......................... ". It was thus argued that though by means of letter dated 14.05.2001 the Petitioner accepted the VSS and that the Petitioner was informed by the Respondent No. 2 that he would be relieved from his service latest by 30.06.2001, he was actually relieved on 30.09.2003. In the meanwhile his employment period was extended by the Respondent No. 2 after every three months from 14.05.2001 upto 23.07.2003. The Petitioner's counsel stressed that he served connections with Respondent No. 2 on 30.09.2003.
8. It was further argued that the Respondent No. 2 by not extending the benefit and the facility of increase in pay , increment, promotion and revision of pay scale w.e.f. 01.07.2001 to 30.09.2003, which was the actual and factual date of his separation from the employment of the Respondent No. 2 have acted illegally. This was not tenable in law and also against the fundamental rights of Petitioner. The Petitioner was therefore an aggrieved person within the meaning of Article 199 of the Constitution of Pakistan, 1973.
9. On behalf of the Respondent Nos. 2 & 3, Mr. Asim lqbal argued that the petition was not maintainable. It was also argued that it was an admitted position that the petitioner accepted an amount of Rs. 653,574/- vide cheque dated 08.10.2003. This according to the learned Counsel was unqualified acceptance of the offer made by Respondent No. 2 on 14.05.2001. Hence the Petitioner was not entitled to the benefits which had accrued to other employees of Respondent No. 2 after the date of acceptance (14.05.2001). Maintainability of petition was thus, on this score also challenged. However Petitioner's Appeal before the Federal Service Tribunal on account of denial of his rights after the 134th meeting of the Respondent No. 2 and its abatement after the judgment of the Hon'ble Supreme Court of Pakistan in Mubin-us-Salam case was not disputed. It was also argued that at best the Petitioner would perhaps be entitled to file a suit for redress of his grievance as offer of VSS and its acceptance fall within the pale of contract, not amenable to the Constitutional jurisdiction of this Court. In support of contentions learned Counsel relied upon the cases of PIAC v. Tanveer-ur-Rehman & others (SBLR 2010 SC 303), Qari Allah Bux and others v.
Federation of Pakistan and others (2001 SBLR 1586), Wali-ur-Rehman and others v. State Life Insurance Corporation and others (2006 SCMR 1079), Shivnandan Sharma v. Punjab National Bank Ltd. (AIR 1955 SC 404) and Nagina Bakery v. Sui Southern Gas Limited and 3 others (2001 CLC 1559).
10. In rebuttal Mr. Muhammad Shahid Qadeer relied upon and produced SRO No. 1234(1)/76, dated 29.12.1976. Section 3, Clause (d) of this SRO says that PSO means the Pakistan State Oil Company Ltd., a company incorporated in Pakistan under the Companies Act, 1913, wholly owned and controlled by the Federal Government (emphasis provided). Hence the objection, of the learned counsel for the Respondent Nos. 2 and 3 that the petition was not maintainable was vehemently refuted. It was also urged that since the Petitioner has only challenged the Respondents Nos. 2 and 3's act of non-grant of retiring benefits, it is only this Court which can look into it under its extraordinary Constitutional jurisdiction and no other Court. Meeting the argument of the learned Counsel that Petitioner was not entitled to the increase in pay, increment, promotion and revision of pay scales w.e.f. 01.07.2001 to 30.09.2003, it was reiterated that since the Petitioner was relieved finally on 30.09.2003, he was entitled to all the above benefits w.e.f. 01.07.2003. In support of his arguments, learned Counsel relied upon an unreported judgment of a division bench of this Court, delivered in the case of Nasim Arif Abbasi and others v. National Bank of Pakistan in C.P. No. D-7241/2006. Learned Counsel also relied upon Abdul Qadir Ismail v. State Bank of Pakistan 2001 PLC (CS) 810, Nazir Ahmed Chakrani and others v.
Federation of Pakistan and others, yet another unreported judgment, passed in C.P. No. D-1841/2008 and Abdul Rehman v. Federation of Pakistan and others (2010 PLC (CS) 691.
11. Heard arguments and perused the record.
12. As to the maintainability of the petition, we may at the very outset observe that in the unreported case of Nazir Ahmed Chakrani and others v. Federation of Pakistan and others delivered by a Division Bench of this Court in C.P. No. D-1841/2008, where Mr. Asim lqbal, learned Counsel for the Respondents Nos. 2 and 3 herein was also the counsel for same Respondents, he had raised the same grounds regarding maintainability. While dealing with the question of maintainability, a Division Bench of this Court in the unreported case came to the conclusion that since the petitioners wanted to enforce the scheme of separation for which they became entitled to after the 134th Board's meeting of the Respondent No. 2 (which meeting is also the subject- matter of the present petition) i.e. The increase in pensionary benefits for government servants was equated as property. Therefore, it was held that Articles 23 and 24(1) of the Constitution became applicable as no one can be deprived of his fundamental rights, guaranteed by the Constitution.
The Division Bench came to such conclusion by relying upon the judgment of the Hon'ble Supreme Court of Pakistan delivered by it in I.A. Sherwani and others v. Government of Pakistan and others (1991 SCMR 1041). It was further observed by the Division Bench of this Court in the case under point that if l.A. Sherwani's case is read with the case of Muhammad Dawood and others v. Federation of Pakistan and others, decided by the Full Bench of this Court reported in (2007 PLC (CS) 1016) wherein it was essentially held that:- "(0 Irrespective of an empties of the State controlled corporation not being a civil servant the corporation themselves continue to remain amenable to the jurisdiction of this Court under Article 199 of the Constitution.
(ii) The rule of master and servant is inapplicable to cases where there is violation of statutory provisions or of any other law.
(iii) The expression "violation of law" would not be confined merely to violation of any specific provision of a statute but the expression "Law", as observed by Hamoodur Rehman, J. (as his Lordship then was) in Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14, relevant at page 31 ought to be considered in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the superior Courts. It means according to the accepted norms of legal process and postulates a strict performance of al the functions and duties laid down by law. It may, for instance, includes the principles of natural justice, the public duty to act fairly and honestly and absence of mala fides in fact and law. In all such cases the Court would be competent to grant relief of reinstatement."
Similarly in the case of PIAC and other v. Tanweer-ur0Rehman and others (SBLR 2010 SC 303), the Hon'ble Supreme Court of Pakistan dealt with the expression, "performance of functions in connection with affairs of Federation". Certain standards for meeting such expression were set, which were:---
(i) Whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power;
(ii) Whether the control of the organization vests in a substantial manner in the hands of Government; and
(iii) Whether the bulk of funds is provided by the State.
13. Keeping in view above questions framed by the apex Court in Tanveer-ur-Rehman case and the cases of I.A. Sherwani and Muhammad Dawood (supra), and the fact that in terms of SRO 1234(1)/76, dated 29.12.1976, the Respondent No. 2 is a wholly owned government company and that its Managing Director and other Directors on the Board are government nominees/employees and the fact that the Petitioner is an aggrieved person within the meaning of Article 199, as his fundamental right to property as guaranteed under Articles 23 and 24(1) of the Constitution have been denied this Petition is maintainable. Moreso as in the case of Tanveer-ur-Rehman, the issue before the Hon'ble Supreme Court was one of unfair dismissal whereas the present case is regarding retirement benefits.
14. This brings us to the moot question, whether the Petitioner is entitled to claim relief as contained in the prayer clause of the petitioner? We may further add that the question before us is whether remedy of the Petitioner lies before this Court keeping in view the fact that the Petitioner has not called in question his removal from service and that he did not impugned any order whereby his service with the Respondent No. 2 was affected. The Petitioner agitates that he should be treated at par with other employees of Respondent No. 2 and be given all the benefits which became applicable to him upto the date of his actual separation from the employment on 30.09.2003 by virtue of 134th meeting.
15. Admittedly the Petitioner was relieved from his employment by Respondent No. 2 not on 01.07.2001 when he opted for VSS but actually on 30.09.2003. In the intervening period, the Petitioner was kept on extensions by the Respondent No. 2, not at his request but for meeting the exigencies at Respondent No. 2's end. It is a fact which cannot be disputed that the 134th meeting of Respondent No. 2 took place on 01.07.2002. By this date despite option of VSS on 01.07.2001, the Petitioner by means of Respondent No. 2's various letters, mentioned above was kept in employment and more than a year passed by.
16. Since the Petitioner was still under employment of the Respondent No. 2 and was drawing his salary and enjoying other benefits related therewith, he would deem to be an "employee" of the Respondent No. 2 on the date of 134th meeting. Not only this, even from the date of 134th meeting thereafter, the Petitioner remained under the employment of Respondent No. 2 and that too at their instance for about 15 months more and he kept serving the Respondent No. 2 to their entire, satisfaction as evident from letters of appreciation available on the record. The Petitioner was ultimately relieved on 30.09.2003 through letter dated 23.07.2003. In similar circumstances it was held in the unreported case of Nasim Arif Abbasi and others v. National Bank of Pakistan and others in C.P. No. D7241/2006 relevant paragraph whereof reads; "Admittedly, opted for Golden Handshake Scheme of 1997, but not relieved from their services due to exigency of service and remained on the payroll of the Respondent, alongwith other employee and opted for Golden Handshake Scheme of 1997 but opted scheme thereafter and granted benefit under ad-hoc relief dated 27.02.1998 and benefit enumerated by Circular No. 66/02, dated 28.10.2002.
17. Similarly in the case of Khyber Zaman v. Governor, State Bank of Pakistan (PLJ 2004 SC 839), the Hon'ble Supreme Court laid down the rule that employees shall be paid financial benefits till they were actually relieved from duty.
18. Again in the unreported case of Nasim Arif Abbasi and others v. National Bank of Pakistan (supra) it was further ruled that admittedly, the Petitioner though opted for retirement under golden Handshake Scheme in the year 1997 but they were relieved from service later much after they opted for retirement. Question which required consideration is, whether Petitioners are entitled for benefit granted to other employees with effect from 1.1.1998 for grant of ad-hoc relief vide their Circular dated 27.2.1998 effective from 1.1.1998 at the rate of 100% and 110% of the basic pay or not.
The question which the Division Bench posed itself was answered in the terms that "The Respondent No. 1 is directed to recalculate the pensionary/retirement benefits of Petitioners on the last basic pay drawn on the actual date of relieving from duty after merging ad-hoc relief. Revised Pay Scale as available to other employees of the Respondents Bank on the date when Petitioners were relieved." The petition was thus granted as prayed by the Division Bench of this Court.
19. We, having come to the conclusion that the Petition is maintainable and also having come to the conclusion that the Petitioner remained under employment of the Respondent No. 2 upto 30.9.2003 at their instance and following the above decisions of the Hon'ble Supreme Court of.
Pakistan and those of the Division Benches of this Court, hold that the Petitioner is entitled to all the benefits, accrued to him from the period 01.07.2001 upto 30.09.2003.
20. In view of our reasoning as reflected hereinabove, various precedents cited by the learned Counsel for the Respondent Nos. 2 & 3 under the facts and circumstances of the case are not applicable and/or clearly distinguishable. As to the precedents relating to the entitlement of retiring benefits, suffice it to observe that in all those cases the employees therein had severed connection altogether from their employer and availed the benefits of the scheme. Despite such position, such erstwhile employees applied for the benefit. Under such circumstances it was held by the Hon'ble Supreme Court of Pakistan as well as by the High Courts that since the employees actually severed all connection from their respective employers, they were not entitled to various benefits claimed by them. However, in the present case it would be evident that the Petitioner severed connection from the Respondent Nos. 2 & 3 on 30.09.2003 and before that day he continued to serve such Respondents diligently and to the best of his abilities and to the entire satisfaction of his employers and that in the intervening period the 134th meeting took place, whereby the scales were revised. As far as the authorities cited on the maintainability of the petition are concerned, suffice it to observe that we have already given our reasons that how and why this petition is maintainable. Therefore, the citation relied upon by the learned Counsel for the Respondent Nos. 2 and 3 on the point of maintainability are found by us as not applicable.
21. Before parting with this decision, we may also bring on record that on 01.12.2010, learned Counsel for the Petitioner concluded his arguments and the learned Counsel for Respondent Nos. 2 & 3 was partly heard. On that date learned Counsel were also allowed to file additional documents which they wanted to file in support of their case. The matter was thereafter adjourned to 07.12.2010. On 07.12.2010 the learned Counsel for the Respondent Nos. 2 & 3, stated that Annexure G at page 93 of the Court file is a document not available with the Respondent Nos. 2 & 3, implying that it was a forged document. Hence, the Respondents Nos. 2 & 3 was directed to file affidavit of the concerned officer in such respect. Affidavit dated 30.11.2010 of one Mrs. Sumera Manzar, wife of Mr. Khilji Muhammad Nasir, Deputy General Manager, H.R. Department, of Respondent No. 3 was filed. It was deposed in the affidavit that the Petitioner accepted VSS and that his dues were calculated in accordance with such VSS and cheque No. 721635, dated 08.10.2003 amounting to Rs. 653,574 was paid to him vide office Memo. Dated 08.10.2003 under reference No. SM/7010/61788. It was deposed in the affidavit that it was the only memorandum/document signed by her, original copy whereof was annexed with the affidavit. Under such circumstances, it was stated that Annexure G at page 93 was not available in the record of the company. Be that as it may, the fact would remain the same that even if the reservation as contained in ,Annexure G to the petition was not recorded by the Petitioner and the payment of Rs. 653,574 was received by him, he would still be entitled to all other balance amounts and other benefits' as a legal right which was created in his favour after the 134th meeting of Respondent No. 2 would not could not and go away or diminish.
22. For these reasons this petition is allowed as prayed and the Respondent Nos. 2 & 3 are directed to calculate the correct amount payable to the Petitioner including all benefits etc. Payable upto 30.09.2003 and pay the same to him within 15 days from the date hereof. .