' IQBAL HAMEED-UR-RAHMAN, C.J.--- Through the instant constitutional petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has made the following prayer:--- "It is therefore, respectfully prayed that, writ petition may kindly be accepted to :-
(a) Declare the impugned order dated 2-6-2003 may kindly be set aside by extending the benefits of the judgments mentioned above;
(b) Direct the respondents to release the benefits of Voluntary Separation Scheme with 20% mark up and the petition may also be paid the salaries and allowances for the period from 17-1-2002 to 2-6-2003; and
(c) Direct the respondents to calculate the benefits of VSS on the basis of last pay drawn by the petitioner.
2. Precisely, the facts as mentioned by the petitioner in the writ petition are that the petitioner is a retired Executive Vice President (EVP) from the Regional Development Finance Corporation (R.D.F.C.) which was amalgamated with the Small Business Finance Corporation vide Ordinance No, LVI of 2001. After the amalgamation of R.D.F.C. And S.B.F.C. Vide Ordinance NQ.LVI of 2001 and under the advice of steering committee, the Management of the amalgamated Corporations initiated a process of restructuring/re-organizing the two corporations and launched a scheme for regular/permanent employees of the R.D.F.C., under the name and style of Voluntary Separation Scheme (V.S.S.). The petitioner opted for the said scheme and the petitioner's option was accepted by the respondents vide letter dated 16-1-2002 and the petitioner's services were treated as laid off from SME Bank w,e,f, 17-1-2002. The petitioner after the acceptance of his option for Voluntary Separation Scheme, requested the respondents vide letter dated 13-2-2002 for release of his V.S.S. Benefits, whereupon, the respondents informed the petitioner, that an inquiry is on the way, pertaining to irregular business transactions of the Regional Development Finance Corporation (R.D.F.C.) with Messrs TASS and Ravi Securities (Pvt.) Limited and as he was an employee of R.D.F.C., therefore, his benefits have been with-held till the finalization of the inquiry. Thereafter, the petitioner received a letter dated 6-4-2002 from the respondents, whereby, he was apprised that the inquiry proceedings in the matter are still pending. However, afterwards, the respondents vide letter dated 21-9-2002 accepted the application of the petitioner for V.S.S. And the petitioner was also informed that his service benefits will be calculated as per the cutoff date i,e, January, 10, 2002, despite that the respondents issued a letter dated 22-10-2002, whereby he was charge sheeted and was asked to submit a reply to an inquiry regarding treasury transaction of dissolved R.D.F.C.
With Messrs Tass and Ravi Securities: The petitioner submitted a detailed reply, however respondent No,1 vide letter dated 2nd June, 2003 informed the petitioner that Voluntary Separation Scheme benefits will not be paid to him but adjusted against for the loss sustained by the institution. The petitioner has alleged that prior to filing of the instant writ petition an appeal was filed by him before the Federal Service Tribunal which was abated in view of the judgment of the Hon'ble Supreme Court of Pakistan dated 27-6-2006 hence, the instant writ petition.
3. In pursuant to the notice issued to the respondents report and parawise comments have been filed on behalf of the respondents.
4. Learned counsel for the petitioner argued that the petitioner was employee of former Regional Development Finance Corporation (R.D.F.C.), having statutory rules and according to section 7 of Regional Development Finance Corporation (Amalgamation and Conversion) Ordinance, 2001, all permanent employees of the Regional Development Finance Corporation (R.D.F.C.) and Small Business Finance Corporation (SBFC) were transferred to and became the employees of company on the same terms and conditions and subject to the same rules and regulations, as were applicable to them before the effective date, as such, this Court has the jurisdiction to entertain and adjudicate upon the matter; that after the acceptance of petitioner's option for Voluntary Separation Scheme by the respondents, the respondents had no legal justification to with-hold the V.S.S benefit of the petitioner; that all the other employees of Regional Development Finance Corporation have been paid the benefits of V.S.S. Scheme, whereas, the petitioner has been singled out on this score, as such, he has been subjected to a discriminatory treatment which is violation of Article-25 of the Constitution of the Islamic Republic of Pakistan, 1973; that all the other employees against whom inquiry proceedings were undertaken, have either been reinstated in service or have been paid Voluntary Separation Scheme benefits and even SME Bank had received all the misappropriated/embezzled amount from the M.D. Of former Regional Development Finance Corporation, as Messrs TASS & Ravi Security (Pvt.) Limited were owned by the family members of the ExM.D. Regional Development Finance Corporation and the petitioner was also charged in respect of the inquiry relating to the transactions made with Messrs Tass and Ravi Security (Pvt.)
Limited. Learned counsel further argued that 14 persons were involved in the scam and these persons have either been re-instated in service or granted V.S.S. Benefits and the allegations against all of them were similar to that of the petitioner; that co-signatory of the petitioner, on the documents relating to transactions with Messrs TASS and Ravi Security (Pvt.) Limited, namely Mehfooz Ellahi Paracha, S.E.V.P. Was reinstated in service by the Secretary, Ministry of Finance on departmental appeal filed by the said S.E.V.P., whereas, the petitioner has been subjected to discriminatory treatment by not awarding V.S.S. Benefits, by the respondents; that the petitioner was neither served with any Show Cause Notice nor any report of inquiry committee was transmitted to him, as such, the disciplinary proceedings conducted by the respondents against the petitioner are not sustainable under the law; that the respondents in their para-wise comments have wrongly mentioned that the petitioner was dismissed, whereas, the petitioner was never dismissed from service. Learned counsel for the petitioner has argued with vehemence that the rules of SME Bank are non-statutory but the subject matter of the writ petition does not relate to the terms and conditions of service of the petitioner, rather same relates to the grant of benefits of V.S S. Scheme. Learned counsel has relied upon 2004 CLC 780, 2004 PLC (C.S.) 604 [Lahore], 2011 SCMR 577, 2011 PLC (C.S.) 592, 2010 SCMR 253, 2009 SCMR 605. Learned counsel of the petitioner has also relied upon un-reported judgment of the Hon'ble Supreme Court of Pakistan passed in Civil Petitions Nos.1359 to 1361 of 2009 titled Nisar Muhammad (0G-2698), Assistant Accountant, OGDCL, H.Q.
' Islamabad, Mirza Taimoor Baig (0G-2706) Assistant Account and Shakil, Ahmed Kiani v. O.G.D.C.L.
Through its M.D. And The Board of Directors, OGDCL as well as upon the un-reported Judgment passed in Civil Appeal No,495 of 2010 titled "The Rector National University of Sciences and Technology (NUST), Islamabad and others versus Driver Muhammad Akhtar".
5. Conversely, learned counsel for the respondents argued that the instant writ petition is not maintainable because the petitioner has approached a wrong forum as the rules of SME Bank are non-statutory, as such, rule of master and servant would apply; that the petitioner was dismissed from service, hence, the petitioner was refused V.S.S. Benefits. Learned counsel has relied upon 2010 SCMR 1484, PLD 2010 SC 676, PLD 2007 SC 681 and PLD 2006 SC 602.
6. I have heard the learned counsel for the parties and perused the record minutely.
7. Through the instant constitutional petition, the petitioner seeks a direction to the respondents regarding payment of his Voluntary Separation Scheme (V.S.S.) benefits as well as setting aside of the Office Order dated 2nd June, 2003, whereby, the respondents had adjusted the V.S.S. Benefits of the petitioner against the losses sustained by the institution due to his alleged negligence in respect of transactions with Messrs TASS and Ravi Securities (Pvt.) Limited. Per contra, the respondents have taken the stance that the petitioner could not approach this Court for redressal of his grievance as the service rules of the respondent Organization/S.M.E. Bank are non- statutory, therefore, the instant writ petition is not maintainable. Learned counsel for the respondents at the very outset has objected the maintainability of the instant writ petition, whereas, the learned counsel for the petitioner while repelling the objection has taken the plea that the petitioner was an employee of former R.D.F.C. And according to section-7 of Regional Development Finance Corporation and Small Business Finance Corporation (Amalgamation and Conversion) Ordinance, 2001, the permanent employees of former R.D.F.C. And S.B.F.C. Were provided the shelter of the rules and regulations, through which their services were governed prior to the creation of new entity S.M.E. Bank.
8. Section 7 of the Regional Development Finance Corporation and Small Business Finance Corporation (Amalgamation and Conversion) Ordinance, 2001 reads as under:---
7. Continuation of service in the company.--- (1) All permanent employees of the RDFC and SBFC, who were continuously in the service of the RDFC or, as the case may be, SBFC for a period of one year immediately before the effective date shall stand transferred to, and become the employees of the company as of the effective date on the same terms and conditions and shall be subject to the same rules and regulations as were applicable to them before the effective date."M A cursory glimpse of the re-produced section of the Regional Development Finance Corporation and Small Business Finance Corporation (Amalgamation and Conversion) Ordinance, 2001 reflects that the employees of former R.D.F.C. Were provided the protection of the same rules and regulations under which they were serving prior to the creation of the new entity under Ordinance No, LVI of 2001. Hence, I am of the. Considered view that as the petitioner was employee of former R.D.F.C. And the service rules of the said Organization were statutory, therefore, the petitioner being permanent employee of. Former R.D.F.C. In the light of section-7 of Regional Development Finance Corporation and Small Business Finance Corporation (Amalgamation and A Conversion)
Ordinance, 2001 would be deemed to be an employee whose services were to be regulated by the service rules of P.D.F.C. Which were statutory, as such, it can safely be held that this Court while exercising extraordinary constitutional jurisdiction under Article-199 of the Constitution of the Islamic Republic of Pakistan, 1973 can entertain and adjudicate upon the lis in hand. In this context I am also fortified by the judgment of Hon'ble Supreme Court of Pakistan passed in Civil Appeals Nos.239 to 241 of 2011 titled as Masood Ahmed Bhatti and others v. Federation of Pakistan, through Secretary, M/O Information Technology and Telecommunication etc. wherein, similar view was taken in respect of employees of P.T.C.L. Who previously were employees of P.T.C. Further-more, identical verdict was also delivered by the Hon'ble Supreme Court of Pakistan in Civil Petitions Nos.1359 to 1361 of 2009 titled Nisar Muhammad and others v. OGDCL through its M.D. And others.
9. The petitioner, through the instant constitutional petition has prayed for issuance of direction to the respondents for payment of his V.S.S. Benefits, whereas, the respondents have come forward with a view that since the petitioner was dismissed from his service, hence, he is not entitled for V.S.S. Benefits. Learned, counsel for the petitioner on this count, has argued with vehemence, that the petitioner's services were laid off from S.M.E. Bank w,e,f, 17-1-2002 vide letter dated 16th January, 2022 after acceptance of his application dated 12-12-2011 under Voluntary Separation Scheme, 2001, hence, the respondents had no reason whatsoever, to refuse V.S.S. Benefits to the petitioner.
Learned counsel further argued that after the acceptance of Voluntary Separation Scheme option, the respondents with mala fide intentions had initiated inquiry proceedings against the petitioner and other employees of former R.D.F.C. On the basis of alleged irregular transactions with Messrs TASS and Ravi Securities (Pvt.) Limited. However, all the other employees of former R.D.F.C. Were either reinstated in service or were paid V.S.S. Benefits, however, the petitioner had been singled out on this score by refusing payment of V.S.S. Benefits, as such, he has been subjected to a discriminatory treatment and even the co-signatory of the petitioner, on the documents regarding transactions with Messrs TASS and Ravi Securities, namely Mahfooz Ellahi Paracha, was reinstated in service on filing departmental representation before the Secretary, Ministry of Finance, Islamabad, however, the petitioner was unable to avail the remedy of filing departmental representation because his services had already been laid off from S.M.E. Bank. Moreover, all the alleged losses were also got recovered by the S.M.E. Bank from the M.D. Of former R.D.F.C. And Messrs TASS and Ravi Securities (Pvt.) Limited were owned by his family members. Learned counsel for the respondents, in rebuttal has argued that as the petitioner had not approached the appropriate forum, hence, his grievance could not be redressed.
10. From the perusal of the documents, appended with the instant writ petition, it is crystal clear that the petitioner was subjected to inquiry proceedings after the acceptance of his V.S.S. Option as well as when his services had already been laid off from S.M.E. w,e,f, 17-1-2002. It would not be out of place to mention here that in Office Order dated 21st September, 2002, it was specifically mentioned by the respondents that:- "His service benefits will be calculated as per the cutoff date i,e, January 10, 2002 as approved by the Board in its meeting of February 14, 2002 vide Board Resolution No,02/02/003/004 (item No,6) for RDFC VSS Policy (Circular No, RDFL/Estab/VSS/ 8715/10145 dated December 5, 2001).
' As such, the impugned Office order dated 2nd June, 2003, whereby, the respondents had denied payment of V.S.S. Benefits to the petitioner has no legs to stand, rather the same is also against the principle of natural justice and fair play. Moreover, the petitioner was not served with any show- cause notice prior to the decision conveyed vide Office Order dated 2-6-2003 whereby, the respondents had refused the payment of V.S.S. Benefits to him, as such, the petitioner was denied right of his defence, which is also a clear violation of the law on the subject. Moreover, all the employees of former R.D.F.C. Against whom inquiry proceedings on the basis of irregular transactions with Messrs TASS and Ravi Securities (Pvt.) Limited were initiated have admittedly been either reinstated in service or paid V.S.S. Benefits coupled with the fact that all the losses caused due to irregular transactions with Messrs TASS and Ravi, Securities (Pvt.) Limited having been recovered from the M.D. Of former R.D.F.C. Through NAB authorities, very much entities the petitioner for grant of V.S.S. Benefits. If the petitioner had committed such illegality whose quantum was so high that he was not standing on the same pedestal as the other employees were, why the respondents had accepted his V.S.S. Option, rather they were required to initiated proceedings against .Him without accepting his V.S.S. Option. On this count, I see eye to eye with the learned counsel for the petitioner that the petitioner was subjected to a discriminatory treatment by depriving him V.S.S. Benefits. Furthermore, the learned counsel for the respondents could not produce even a single document to prove that the petitioner was dismissed from his service, hence, he was not entitled to V.S.S. Benefits, he was not paid V.S.S. Benefits by the respondents.
11. The ultimate inference which floats from the above discussion is that the petitioner is entitled for the recovery of V.S.S. Benefits. Resultantly, the instant writ petition is accepted and the respondents are directed to pay Voluntary Separation Scheme benefits to the petitioner.
12. It would not be out of place to mention here that while concluding the arguments, the learned counsel for the petitioner on 4-10-2011 requested the Court that presently the respondents are taking sympathetic view on the request of the petitioner for grant of V.S.S. Benefits, therefore, the writ petition may be adjourned for some date and if till that date controversy involved in the instant writ petition is not amicably resolved, judgment may be announced, whereupon, the instant writ petition was adjourned for 27-10-2011. On 27-10-2011 the learned counsel for the petitioner apprised the Court that the request of the petitioner has not been considered by the respondents, hence, the instant judgment is announced on 28-10-2011.