' MUNIB AKHTAR, J.--- The plaintiffs Nos.2 to 50 were all employees of the defendant No,2, the Pakistan Telecommunication Company Ltd. ("PTCL"). (The first plaintiff is a welfare association of which the remaining plaintiffs are stated to be members.) Most of the plaintiffs left service by taking the benefit of a voluntary separation scheme ("VSS") that was introduced by PTCL in late 2007. A few, it appears, retired in the normal course. In any case, all the plaintiffs are entitled to payment of pension. During the course of their employment, each of the plaintiffs was allotted a flat for residence in an area in Karachi known as the P&T Colony ("the Colony"). PTCL's case is that the Colony and the flats therein were, and are, its property and that each plaintiff was obligated to vacate it within six months of his service coming to an end. None of the plaintiffs has done so. PTCL contends, on the basis of the relevant contractual undertakings given by each plaintiff, that they are liable to pay monthly rent at a specified rate for the period that they continue to retain the flats beyond the six month period. PTCL further contends that it is entitled to adjust the pension payable to each plaintiff against the rent. The rent claimed by PTCL in each case is greatly in excess of the pension, with the result that PTCL has stopped making pension payments to the plaintiffs. Since the plaintiffs continue to retain the flats and the rent payable exceeds the pension, there is, on PTCL's contention, an ever increasing deficit and claim against each of the plaintiffs.
2. The plaintiffs on the other hand contend that the Colony belongs to the defendant No,7 (i,e, the municipal entity for Karachi). At the time of the filing of the suit, this entity was City District Government Karachi ("CDGK") and for convenience will continue to be referred to as such. The plaintiffs claim that (apart from about 15 of them) they have in fact been granted registered lease deeds by CDGK sometime in 2008. .(The remaining 15 plaintiffs, according to the plaint, are also entitled to such leases, and their case is therefore pleaded on the same footing). Thus, on their showing, the plaintiffs are, and have been for some years, the owners of the flats in the Colony and their case is that PTCL has no right or entitlement to claim any rent from them. They therefore contend that the stoppage of pension is wholly unwarranted and unlawful. By , means of the two applications that now fall for determination they seek interim relief by way of continuance of payment of pension, and payment also of the arrears that according to them have accumulated in this regard.
3. Learned counsel for the plaintiffs' submitted that at the time of Independence, there used to be a combined postal, telephone and telegraph department. Many years later, it was divided into the postal department and the telephone and telegraph (T&T) department. The latter department is of course the predecessor entity of PTCL. Similarly, the postal department has also been corporatized as the Pakistan Postal Service Corporation, which is the defendant No,3 in the present suit. However, for present purposes, I am only concerned with PTCL and its former employees, the plaintiffs.
References to the postal service shall therefore be omitted save as absolutely necessary. It appears that around 1951 or so, the then predecessor to CDGK agreed to sell to the Government of Pakistan a plot of land for purposes of establishing a residential colony for the (then) department of post, telephone and telegraph. This area is of course the Colony. Learned counsel submitted that it was agreed that the land would be acquired by the Government of Pakistan on payment of a sum of Rs,2,17,000. However, only an amount of Rs,150,000 was ever paid by the Government although possession of the Colony was handed over to it and a staff residential colony of some sort was constructed. Learned counsel submitted that on account of the failure of the Government to make full payment for the Colony, the predecessor of CDGK, sometime in 1991, passed a resolution resuming the said property and the plaintiffs' case is that since that time, title and ownership thereof has vested solely in the defendant No,7. It appears that thereafter, the predecessor of CDGK sought to grant leases to the persons residing in the flats in the Colony (who were all of coarse, as presently relevant, employees of the predecessor of PTCL). However, a suit, being Suit No,828 of 1991 was filed by the predecessor of PTCL and the postal service in this Court, whereby declaratory and other relief was sought in relation to the Colony, the plaintiffs therein contending that the Colony belonged to them. Interim orders were made restraining the predecessor of CDGK from granting leases in respect of the flats in the Colony. Thereafter, the employees of PTCL as were in occupation of flats were issued eviction notices, which led to the present plaintiff No,1 filing a civil suit in this Court, being Suit No,1456 of 1997 against PTCL and the postal service (as also the predecessor of CDGK), seeking suitable declaratory and injunctive relief against the eviction notices. This suit was disposed off by order dated 25-8-1999 on an undertaking being given by PTCL that no adverse action would be taken till the decision of Suit 828 of 1991.
4. Although the point is contested by PTCL, learned counsel for the plaintiffs submitted that the interim orders made in Suit 828 of 1991 were not continued and thus, as noted above, sometime in 2008, CDGK started granting leasehold rights to the plaintiffs by means of registered deeds in respect of the flats respectively occupied by them. It is on the foregoing basis that it is contended that the plaintiffs are the owners of the flats and PTCL has no right or authority to charge rent from them, whether by way of adjustment against the pensions or otherwise. Learned counsel submitted that the stoppage of the pensions was wholly unlawful and causing great hardship and suffering to the plaintiffs who were retired persons having no alternative means of income. He submitted that all the ingredients for interim relief were made out in their favour and prayed for relief accordingly.
5. Learned counsel for CDGK supported the case of the plaintiffs. Learned counsel submitted that the predecessor of CDGK had lawfully resumed the Colony and was the lawful owner thereof. CDGK was therefore fully empowered to grant leasehold rights to the plaintiffs and had duly done so, there being no interim orders in Suit 828 of 1991 preventing CDGK from so acting.
6. Learned counsel for PTCL, strongly opposed the grant of any relief to the plaintiffs. Learned counsel submitted that the Colony was, and remained, at all times the property of PTCL (through its predecessors). The flats were the property of PTCL and the plaintiffs were admittedly employees who had been allowed to reside therein as part of their service conditions. Since that service had ceased, the plaintiffs were bound to vacate the flats and hand over possession thereof to PTCL after a grace period of six months. Learned counsel contended that in any case, "legal" possession of the Colony at all times remained with PTCL. Since the plaintiffs had failed to vacate the flats, they were in unlawful occupation of the same. Learned counsel submitted that the relationship between the parties (i,e, PTCL and each of the plaintiffs) was entirely contractual in nature, and in terms of the relevant contracts, the plaintiffs had agreed that if the flats were not handed over, then they would pay rent at the stipulated rate, which would be adjustable against any pension payable to them. Thus, PTCL had at all times acted strictly in accordance with law and in exercise of its lawful rights. It was fully entitled to adjust the pensions and was doing so on account of the unlawful conduct of the plaintiffs. As noted above, most of the plaintiffs had left service by taking the benefit of the VS8 and learned counsel submitted that the rights being exercised by PTCL were fully covered thereby. In respect of the (few) plaintiffs who retired in the normal course, learned counsel relied on chapter 17 of the PTCL Service Regulations, 1996 ("1996 Regulations"), which deals with allocation of residential accommodation to PTCL employees. Learned counsel, submitted that these regulations were also contractual in nature and fully covered the case of those plaintiffs who had retired in the normal course.
7. Insofar as the lease deeds were concerned, learned counsel submitted that they were void in law and conferred no benefit or right on the plaintiffs. Learned counsel contended that the leases were granted by CDGK in wilful and blatant disobedience of the interim orders made in Suit 828 of 1991 and it was strongly denied that those orders had lapsed in any manner or at any time. Learned counsel further stated that in fact contempt proceedings had been initiated in Suit 828 of 1991, and were pending adjudication. The plaintiffs were, on their own showing, fully aware at all material times of the interim orders and thus had entered into the leases with CDGK in wilful disregard of the orders of this Court and were liable accordingly. They could not benefit from their own wrongdoing and their misconduct disentitled them from any discretionary relief from the Court. Learned counsel submitted that both in law and equity, the matter stood in favour of PTCL and against the plaintiffs and prayed accordingly.
8. I had permitted learned counsel to file written synopses and they did so and relied also on certain case-law, which is considered below as and to the extent as necessary and appropriate.
9. I have heard learned counsel as above, examined the record with their assistance and considered the case-law relied upon. The plaintiffs were all employees of PTCL, who had joined service with its predecessor and had come to be its employees in a manner the details of which are not presently relevant. There can be no doubt that it was only as such employee that each plaintiff was at some point in time given possession of a flat in the Colony, which was entirely on the basis and as part of the terms and conditions of service. (Of course, the plaintiffs contend that thereafter the position changed and they became the owners of the flats in terms as stated above.) It is also not in dispute that the majority of the plaintiffs left service in terms of the VSS that was offered by PTCL in late 2007, while a few retired in the ordinary course. PTCL's case is that the entire relationship was, and is, contractual in nature and the rights being exercised by PTCL are based in the relevant contracts. For reasons that will presently become clear, it will be appropriate to consider the matter on the basis of the stand taken by PTCL. Since the majority of the plaintiffs left service in terms of the VSS, the matter will first be considered in terms of that scheme. PTCL's case in this regard is set out in the following terms in the written synopsis submitted by learned counsel: "In respect to the employees who have opted for VSS Scheme, I would refer to the VSS Scheme document (annexed to Rejoinder of the plaintiffs to C.M.A.No,595 of 2011). It is submitted as the regulations 1996 are non-statutory thus the terms and conditions are of contractual nature PLD 2011 SC 132=2011 PLC (C.S.) 632. When the VSS Scheme was introduced the terms and conditions of the employees who opted for it were changed in respect to pension and the rent. It may be noted that for this very reason separate undertakings were willingly executed by the plaintiffs who opted for VSS Scheme whereby they undertook to vacate the premises after the end of certain period in respective case and in case of failure to vacate they undertook that PTCL will be entitled to charge respective amounts as stated in their undertakings and VSS settlement. For illustration the document attached with the rejoinder is of plaintiff No,7 whose monthly pension is Rs,8540 whereas he had given undertaking to pay rent of Rs,11250; thus payment of pension does not arise. It may be noted that the pension under VSS Scheme has also been increased from the normal pension which they were entitled to. It is submitted that the terms and conditions after execution of the VSS Scheme have been modified with consent and therefore the plaintiffs cannot take advantage of their own wrong. 1 would refer to PLD 2003 SC 430; 2003 PTD 739 and PLD 1969 Quetta 13.
' It is respectfully submitted that pension is at best a contractual right of an employee subject to the applicable rules and in this case the terms and conditions of the employment. It is respectfully submitted that the pension of an employee can be deducted and withheld as provided in rules and to recover losses occurred to the departments. It is respectfully submitted that the Lahore High Court and other courts have held that the deduction of rent in case of VSS Scheme employees.
' I would rely on the following cases in support of the above propositions:--- 2005 SCMR 292; PLD 1973 SC 514; 2009 PLC (C.S.) 703 and 2009 PLC (C.S.) 721 [Cases in which PTCL's deduction from pension were held lawful.]"
' It will be seen that learned counsel has referred to the case of plaintiff No,7, Mr. Jalil Ahmed ("Mr. Jalil"), whose documents in relation to the VSS have been placed on record. The case of this plaintiff will therefore serve as the template for all those plaintiffs who left service in terms of the VSS.
10. Before considering the documentation in detail, reference may be made to a basic principle of the law of contract namely that the terms of a contract are to be construed and interpreted objectively. In Muhammad Shahnawaz and others v. Karachi Electric Supply Co. Ltd. 2011 PLC (C.S.)
1579, I had occasion to refer to this principle, citing the following passage from Sirius International Insurance Co. v. FAI General Insurance Ltd. [2004] UKHL 54; [2005] 1 All ER 191, where it was observed as follows:--- "The aim of the inquiry is not to probe the real intentions of the parties but to ascertain the contextual meaning of the relevant contractual language. The inquiry is objective: the question is what a 'reasonable person, circumstanced as the actual parties were, would have understood the parties to have meant by the use of specific language. The ahswer to that question is to be gathered from the text under consideration and its relevant contextual scene." (per Lord Steyn)
' As I had noted, the above observations were not an enunciation of any new principle, but rather the restatement, in modern terms, of a principle that forms part of the bedrock of contract law. This principle is to be kept in mind at all times in the present case as well.
11. The first point to note with regard to PTCL's case is the contention that the VSS "modified" and "changed" the contract of service between PTCL and the relevant employee (see the extract from the written synopsis reproduced in para 9 above). In my view, this is not correct. Proceeding on the basis that (as PTCL contends) the terms and conditions of service were contractual in nature, what the VSS did was to constitute a new contract between PTCL and the relevant employee, whereby the earlier contract came to an end and the terms on which the employee left service were governed and regulated by the new contract. After all, the whole purpose of the VSS was to ensure that the employee immediately left PTCL's service. On the contractual plane therefore, the VSS was a novation in terms of section 62 of the Contract Act, 1872. A. New contract (as embodied in the VSS) was entered into between PTCL and the employee, which substituted the earlier contract of service with its own terms and conditions. Therefore, if at all PTCL's case is to succeed on the contractual plane; it must be in terms of the contract constituted by the terms embodied in the VSS.
12., I turn therefore to consider the VSS documentation as filed in relation to Mr. Jalil. On or about 15- 11-2007, this plaintiff received a letter from PTCL informing him that the latter was offering a voluntary separation scheme to those employees who met certain criteria, the plaintiff being one of them. It was emphasized that the scheme was entirely voluntary in nature. The enclosed documentation (referred to therein as the', "circular") gave the details of the terms of the VSS.
Certain details particular to Mr. Jalil were also stated (and of course, would have been similarly set out in relation to each of the other plaintiffs in the corresponding letters received by them). Thus, it was noted (on an approximate basis) that Mr. Jalil was entitled to a one-time payment of Rs,19,20,459.88 and a monthly pension of Rs,8,548 (along with certain other benefits). Any employee who wished to avail the VSS was to submit an "option/waiver" form, and the form once submitted was irrevocable. It was expressly stated that "there can be no conditional acceptance of VSS". In other words, the employee had to submit the form on a take it or leave it basis. It was also expressly stated as follows:--- "Employees deciding to opt for the VSS by way of the Option/Waiver Form shall thereby agree to be bound by the provisions and the terms and conditions contained in this Circular."
' The documentation further stated that "management reserves the right to accept or reject any Option/Waiver Forms at PTCL management's prerogative without explanation to the employee".
The package also contained a term with regard to those employees who were enjoying the benefit of housing provided by PTCL. It stated as follows: "Employees with PTCL housing will retain their housing for a' period of 6 months after separation from PTCL.
' Employees will also receive a one time payment equivalent to 6 months of House Requisition Allowance based on the maximum eligible House Requisition Allowance for the posted Station."
13. When considered in terms of the law of contract (and that, PTCL insists, is the only valid and correct approach), it is clear that if the employee offered the VSS package decided to file the "option/waiver" form, he would be making an offer to PTCL. That offer would have to be exactly on the basis as communicated to the employee. In other words, PTCL precisely specified the terms in which the employee had to make the offer, which PTCL itself could the accept or reject in its discretion. If accepted (but only then), then of course, a contract would come into being between the employee and PTCL. In other words, the communication of the VSS package by PTCL to the employee did not constitute an offer, which the employee accepted by submitting the "option/waiver" form. If that had been so, then on the submission of the said form, a binding contract would have immediately come into existence between PTCL and the employee and that of course would have made it impossible for PTCL to "accept or reject" the said form. Thus, the references to the employee "accepting" the VSS package or "agreeing" to be bound by its terms should not be construed in the strict or technical sense, i,e,, as understood and applied in contract law. In terms of the law of contract, the employee was the offeror and PTCL was the offeree, and of course, if it accepted the officer, it then became the acceptor.
14. On or about 24-12-2007, Mr. Jalil submitted his "option/ waiver" form to PTCL. This constituted his offer to PTCL, the terms and conditions of the offer being those contained in the VSS circular. On or about 22-1-2008, he received a letter from PTCL, which stated in material part as follows:--- "Thank you for applying for Pakistan Telecommunication Company Limited's (PTCL) Voluntary Separation Scheme (VSS) programme. At this time, we are pleased to inform you that PTCL Management has accepted your VSS application.
' Your final pay out calculation will be made using your last drawn salary as of your actual departure date of February 18, 2008, which in no case shall come earlier than February 15, 2008.
Please be aware that February 18, 2008 will also be considered your last date of employment with PTCL.
' We anticipate that you will receive your final VSS settlement amount on or before April 4, 2008....
' Before the VSS payout can be issued, you will need to sign and complete the off-boarding paperwork given in the attached checklist .... Delay in submission of paperwork may postpone PTCL's issuance of your VSS payout." (emphasis supplied (sic))
' The "off-boarding" paperwork referred to included submission of certain forms, of which two are relevant for present purposes. One was a declaration of unqualified consent ("Declaration"), which was to be filed in the form attached. The other was an undertaking ("Undertaking") to be given on Rs,20 stamp paper. Again, the text of the Undertaking as required by PTCL was set out in the letter of 22-1-2008. Mr. Jalil provided both the Declaration and the Undertaking, and it is not in dispute that they were in the forms as specified by PTCL. The Declaration made by him was as follows:--- "I Mr. Jalil Ahmed do hereby give my unqualified consent to permit the department to recover from my pension and/or VSS settlement and/or personal assets on the following items of at any time found to be recoverable from me:---
(1) Recovery as punitive measure in order to make good loss caused to Government as a result of negligence or fraud while in service.
(2) Recovery of other Government dues such as over issued of Pay, Allowance or leave salary or admitted and, obvious dues such as House Rent, Postal Life Insurance, outstanding Motor Car, House Building Travelling Allowances or other advances.
(3) Recovery of non-Government dues.
' I shall not raise any objection whatsoever for such recovery from my pension and gratuity."
' The Undertaking was given in the following terms:- "I, JALIL AHMED, declare that I shall vacate PTCL provided residence six (6) months after my departure date, February 18, 2008, I understand that I will be liable to pay rent at the rate of PKR 11250 if I fail to vacate PTCL. Accommodation on the expiry of the grace period August 18, 2008."
15. PTCL of course contends that the foregoing constitutes the VSS contract between ,the parties and that in terms of the Declaration, and Undertaking, it is entitled to charge rent for any retention of the flat beyond the six month period and also to adjust the rent due against the pension payable to Mr. Jalil.
16. Now, it is elementary that for an offer (or proposal, which is the term used in the Contract Act) to blossom into a contract it must be accepted, and it is PTCL's acceptance that must be considered in some detail and tested on the anvil of contract law. This is particularly so because neither the Undertaking nor Declaration as such find any mention in the VSS circular. The VSS package did contain a term regarding PTCL housing, which has been reproduced above. In other words, in the offer made by him, Mr. Jalil did not state that if his offer was accepted, he would submit the Declaration and/or the Undertaking. These, along with other forms, find mention for the first time only in PTCL's own letter of 22-1-2008, which of course constitutes the acceptance. The VSS circular (which, as noted above, constituted the terms of the offer made by Mr. Jalil) did provide that the employee would have to "complete and submit some final paperwork". However, the sense conveyed by this is only consistent with the completion of procedural formalities of a routine nature. It is inconsistent with something that is substantial or such as would be regarded by a reasonable person as materially affecting or altering the terms of the offer.
17. Section 7 of the Contract Act provides that in order for an acceptance to convert an offer into a promise (i,e, a legally binding contract) it must be "absolute and unqualified". An acceptance that does not come up to this standard is not an acceptance in the eyes of law and hence any such "acceptance" cannot convert the offer into a promise, i,e, a contract. The question therefore is whether, in light of the requirement by PTCL that Mr. Jalil should give the Undertaking and make the Declaration, the acceptance of 22-1-2008 was absolute and unqualified within the meaning of section 7. There are of course two possibilities. One is that the question just posed be answered in the affirmative and the other that ,it be answered in the negative. Both possibilities need. To be examined and I turn first to the affirmative scenario.
18. In this scenario, there are two sub-possibilities, to consider which the following passage from Lark v. Outwait he (1991) 2 Lloyd's Rep 132, 139 may be kept in mind:- "The principles are elementary and very well established. The acceptance must correspond with the offer and must be clear and unqualified, and will fail to take effect if it attempts to vary the terms of the offer or to add new ones. On the other hand statements which are not intended to vary the terms of the offer, or to add new terms, do not vitiate the acceptance even where they do not precisely match the words of the offer, and if the new term makes express what would otherwise be implied, it does not destroy the effectiveness of the acceptance (Chitty on Contracts, 26th ed. Vol. I par 56)." (emphasis supplied)
(The reference in a more recent edition of Chitty on Contracts (30th, 2008) would be to Vol. I, para 2-032.) The first sub-possibility is thus simply to disregard the Undertaking and the Declaration for the purposes of the acceptance by PTCL of Mr. Jalil's offer. On this basis, the contract is that as embodied in the terms and conditions of the offer. The Undertaking and the Declaration do not form any part of the contract at all. Such a conclusion would certainly make the acceptance absolute and unqualified. The second sub-possibility is to regard the requirement of submitting the Undertaking and the Declaration only as making express something which is implied in the offer. If so, then the requirement does not vitiate the effectiveness of the acceptance, which remains absolute and unqualified.
19. In my view, the second sub-possibility cannot be correct. Both the Declaration and the Undertaking contain terms that are materially different from anything contained in the VSS circular.
There was an express provision in the VSS circular (and hence in Mr. Jalil's offer) with regard to the PTCL housing, i,e,, the flat occupied by him in the Colony. That was the extent of Mr. Jalil's offer. This express provision cannot on any view be regarded as containing also an implied term that Mr. Jalil had, in addition, offered to pay rent at an amount to be stipulated subsequently by PTCL for any period that he continued to occupy the flat beyond the expiry of the six month period and that such rent could be adjusted against the pension payable to him. As noted in paras 16 (supra) and 20 (infra), the VSS circular did refer, in a rather oblique and off-hand manner, to completion of "off- boarding and/or pension paperwork". However, both the Undertaking and the Declaration were substantive documents, which imposed material and onerous obligations on the offeror (Mr. Jalil).
In my view, there can be nothing in the passing references to "paperwork" in the VSS circular that could match something in the nature of the Undertaking or the Declaration, such that the requirement to execute those documents should be regarded as simply making express a term implied in the offer. This is all the more so because of the express reference made in the VSS circular (and hence in Mr. Jalil's offer) to accommodation provided by PTCL.
20. The first sub-possibility is more attractive and plausible. The fundamental principle (the objective approach) on the basis of which contracts are to be interpreted must be recalled (see para 10 above). What would a reasonable person, placed in the position described by Lord Steyn, conclude with regard to the VSS contract? The manner in which the requirement to furnish the Undertaking and the Declaration was presented in the letter of 22-1-2008 is also important. It was presented simply as part of the "off boarding" paperwork that needed to be done in order to bring closure between the employee and PTCL. In other words, an attempt was made to pass off the Undertaking and Declaration simply as procedural formalities, to be filled In and filed along with a multitude of other forms. The implied (though politely stated) threat of the final payout being held up or delayed must also be taken into consideration. In my view, a reasonable person would conclude that the Undertaking and the Declaration had substantive content and were not merely procedural in nature. The VSS circular (i,e, the offer made by Mr. Jalil) did require that employees whose offers were accepted would have to submit "necessary off-boarding and/or pension paperwork before settlement payments can be issued". However, as already indicated above. (see Para' 16), this provision was only consistent with routine and procedural matters. The Undertaking and Declaration were material obligations, of a nature different from those stated in the offer. PTCL was seeking something "extra" from the employees. But that "extra" bit was substantive in content and hence extraneous to the offer. In terms of the sub-possibility now under consideration, the reasonable person, in order to find that a binding contract had come about (i,e,, that PTCL's acceptance was absolute and unqualified) would have to conclude that the Undertaking and Declaration did not and could not form part of the acceptance at all. They could not therefore at all form part of the contract concluded between Mr. Jalil and PTCL.
21.. There is another manner in which the issue can be approached. Suppose that Mr. Jalil (or any other employee) had refused to give the Undertaking or make the Declaration, and PTCL, had, on such basis, withheld the final payout. Who would be in breach of contract? It is clear to me that it is PTCL and not the employee who would be in breach. It therefore appears to me that if at all the acceptance of 22-1-2008 is to be regarded as absolute and unqualified within the meaning of section 7, then the Undertaking and the Declaration must be disregarded and it must be concluded that they do not form any part of the contract. This is however, a provisional view, since the second possibility (see para.17 above) must now be considered.
22. That possibility of course is that because of the requirement to give the Undertaking and make the Declaration, the "acceptance" of 22-1-2008 was neither absolute nor unqualified or, in other words, it was not an acceptance within the meaning of section 7. Now, the immediate and obvious conclusion that would follow from this is that there was never, in law, a contract between Mr. Jalil and PTCL. Non-compliance with the requirements of section 7 meant that, in law, Mr. Jalil's offer was rejected by PTCL. However, there is another possible conclusion. This is that while the letter of 22-1-2008 did, in law, amount to a rejection of Mr. Jalil's offer, it also simultaneously amounted to a counter-offer by PTCL to the former, which he accepted by giving the Undertaking and making the Declaration. In other words, the roles were switched. It was PTCL (rather than Mr. Jalil) who was the offeror and vice versa for the offeree. On this basis of course, the requirement to give the Undertaking and make the Declaration would be part of the contract between the parties. How plausible is this scenario? In my view, it is not plausible at all. Again, the question must be considered from the perspective of the reasonable person. The insistence by PTCL that the offer must be made by employees precisely in terms of the VSS circular (and none other) and its express stipulation that PTCL was absolutely free to accept or reject the offer "without explanation to the employee" (both as noted above) are crucial in this context. It is clear that PTCL visualized itself solely in the role of an offeree and the employees in the role of offerors. It is entirely inconsistent with the documentation,' the conduct of the parties or the factual matrix in which they acted to conclude that PTCL at any stager regarded that the roles would be reversed. PTCL was at all times the offeree, which became the acceptor if (but only if) it accepted the employee's offer. It was in this sense alone in which the VSS contract came about. The second possibility therefore cannot be accepted.
23. For completeness, one must refer also to a third possibility, which is stated in the following terms in Chitty on Contracts (op. Cit.): "It is also possible for a communication [by the offeree which contains new terms to amount at the same time: (1) to a firm acceptance of an offer; and (2) to a new offer to enter into a further contract. In such a case, there will be a contract on the terms of the original offer, but none on the terms of the new offer, unless that, in turn, is accepted."
' On the foregoing basis, the letter of 22-1-2008 sent by PTCL to Mr. Jalil would have to be regarded as comprising of two parts. The first was the acceptance of Mr. Jalil's offer, which being absolute and unqualified, constituted a binding contract between the parties. The second was an offer by PTCL to Mr. Jalil for him to give the Undertaking and make the Declaration, which he duly accepted by submitting the two documents. This then resulted in a second and separate contract between the parties.
24. In my view, the third possibility is even less plausible than the second possibility and even less consistent with the record. This possibility would also run into the difficulty of a lack of consideration. The only possible consideration for Mr. Jalil's protnise (and act) of giving the Undertaking and making the Declaration would be PTCL's promise to make the final payout but it was already legally bound to do so in terms of the other (or main) VSS contract between the parties. Generally, the promise by a party to do something which it is already bound by law to do cannot constitute proper consideration to support a contract. The putative second (or new) contract would therefore fail and be unenforceable.
25. I have gone to some length to consider the Various possibilities that could arise on the contractual plane because the core of PTCL's case is that the relationship between the parties is entirely of this nature, and the Undertaking and the Declaration form part of the contract. It is these documents alone which can, if at all, confer any power on PTCL to stop paying the pension and adjust it against the rent being claimed by it (in relation to those plaintiffs whose cases are covered by the VSS). As is clear from the foregoing analysis, the only possible scenario in which there could be a legally valid and binding contract on the basis of the VSS is that in relation to which I had formed a provisional view in para 21 above. In my judgment, that is only view on the basis of which legally binding contracts could have come about between PTCL and the relevant employees. In other words, the Undertaking asked for and given, and the Declaration called for and made, did not and could not form part of the contract between the parties. These documents were, and are, without any legal force or effect. It therefore follows that in ,relation to those plaintiffs who left service under the VSS scheme, PTCL is not entitled to adjust its own stipulated amount of rent against the pensions payable to such plaintiffs.
26. Learned counsel for PTCL relied on Pakistan Telecommunication Corporation Ltd. v. Muhammad ,Akram 2009 PLC (C.S.) 703 (LHC; DB) and Muhammad Asif Akram and others v. General Manager, PTCL 2009 PLC (C.S.) 721 (LHC; SB). Both cases involved PTCL provided accommodation. However, neither case provides assistance to learned counsel. In the first mentioned case, the employee retired but retained possession of the accommodation beyond. The six month grace period. His pension was stopped and he filed a writ petition before the Lahore High Court. A learned single Judge directed deduction only of a specified amount by way of rent from the pension and release of the remaining portion. Against this order, PTCL preferred an Intra Court Appeal. That appeal was dismissed. There is therefore nothing" in the decision that sheds any light on the issues raised in the present matter. The second mentioned decision is even less helpful. It simply record's a concession made by the employee concerned, namely that a portion of his pension may be deducted by way of 'normal rent' (a term used in chapter 17 of the 1996 Regulations, for which see below) and the rest be paid to him. If anything, this decision would seem to go against PTCL's case, since it implies that absent the concession made by the retired employee, not even the amount of normal rent could have been deducted.
27. Learned counsel also relied on Federation, of Pakistan v. I.A. Sherwani and others 2005 SCMR 292 and Government of N. -W.F.P. v. Muhammad Said Khan and others PLD 1973 SC 514 to contend that the right to pension is not absolute and the pension can be lawfully withheld in appropriate circumstances. This is of course well established, but the question (which is the issue at hand) is whether the disbursing authority can lawfully do so or not in the facts and circumstances of the particular case. That question has been addressed in the manner as herein above stated. The cited decisions do not therefore advance PTCL's case. Learned counsel also referred to Amina Bibi v. Mudassar Aziz PLD 2003 SC 430, Gear Hobbing Ltd. v. Commissioner of Income Tax and another 2003 PTD 739 (SHC; DB) and Allah Buksh v. Fazal Karim and others PLD 1969 Quetta 13 (SB) to contend that a party cannot take the advantage of or benefit from its own wrongdoing. This principle' is well established, but again, has no applicability in the facts and circumstances of the present case, which turns on an entirely different basis even on PTCL's own showing.
28. What of chapter 17 of the 1996 Regulations, on which reliance was also placed by learned counsel for PTCL? The provisions of the aforesaid chapter cannot have any application in relation to those plaintiffs who had opted for the VSS, The reason is that these regulations (on PTCL's own showing) formed part of the contractual terms and conditions in the ordinary course of service.'
However, as explained above, the purpose of the VSS was. To navate that contract and substitute it with an entirely different one, which operated on its own terms and conditions. Nonetheless, since at least some the plaintiffs apparently' retired in the normal course, the terms and conditions of their service would (according to PTCL) be governed by the relevant provisions of chapter .17. It is therefore necessary, in relation to these plaintiffs alone, to consider those provisions.
29. Regulation 17.22 provides, in its clause (2), insofar as is presently relevant as follows:--- "In the event of ... Retirement ... The allottee shall be entitled to retain the accommodation ... For a period not exceeding six months, on payment of normal rent:"
"Normal rent" is defined in Regulation 17.01(d) as meaning the rent specified in Regulation 17.28, and the latter regulation provides that such rent shall be 5% of the employee's, emoluments ' The term "emoluments" is also defined, in Regulation 17, 01(b), and (separately) refers to "pay as defined in regulation 2.01(xxi)" and "pension". Thus, in the normal course, a PTCL employee who enjoyed the benefit of accommodation provided by it could retain the same for a, period up to six months after his retirement, but subject to payment of rent at the rate of 5% of his pension. Part VI of chapter 17 provides, inter alia, for the procedure to recover rent. Regulation 17.29 provides, in its clause (2), as follows:--- "In the case of unauthorized occupation/retention of residential accommodation penal rent should be charged @ 11.25% of emoluments or the standard rent whichever is higher."
"Standard rent" is defined in Regulation 17.01(e) as meaning, in relation to accommodation owned by PTCL, "the rent fixed by [PTCL] and notified from time to time". Regulation 17.30 provides in material part as follows (emphasis supplied):--- "While treating a person as an unauthorized occupant of the residential accommodation it should be made known to him in writing that the penal rent at the rate of 11.25% of emoluments of pay or the standard rent whichever is more shall be recovered from him till such time he is ejected from that residential accommodation under the relevant regulations and order. A person shall be treated as unauthorized occupant of residential accommodation only when ... The accommodation is being retained unauthorisedly...."
' Finally, reference must be made to Regulation 17.33, which provides as follows:--- "Rent demand statement shall be sent to the section responsible to draw pay and to make recovery of the rent from pay bill. Employees who are their own drawing officers shall ensure that the rent is paid through their pay bill."
30. Since those of the plaintiffs who retired in the normal course continue to retain the flats occupied by them after the lapse of the six month period, then, on the basis of the case sought to be made out by PTCL, they have to pay rent either at the penal rate (of 11.25% of pension) or the "standard rent", whichever is higher. Learned counsel for PTCL was unable to state whether the "standard rent" had at all been notified by PTCL as relevant for present purposes. Thus, even on the basis put forward by PTCL, it could only charge rent at the rate of 11.25% of pension from the relevant plaintiffs, which of course is a far cry from claiming that it is entitled to withhold the entire amount of pension payable (and even then have a claim over the plaintiffs). Furthermore, even though Regulation 17.01(e) allows PTCL to notify the standard rent, this power is not absolute or unfettered. It must be given a contextual meaning, and the relevant context is of course chapter 17 itself. It must be noted that the rate of 11.25% is expressly described as "penal", which thus carries the connotation of being punitive. The standard rent cannot be set at a rate that significantly greater than the penal rent and certainly not so high that it consumes the entire emoluments. It must be kept in mind that it is now an established principle of the interpretation of contracts, to which I alluded in the Muhammad Shahnawaz case (supra) that if any discretion is conferred on a party by a contract, then "not only must the discretion be exercised honestly and in good faith, but, having regard to the provisions of the contract by which it must be conferred, it must not be exercised arbitrarily, capriciously, or unreasonably". In my view, for PTCL to at all lawfully set the standard rent, such rent must be (a) set as a percentage of the emoluments, and (b) such percentage cannot be unreasonably greater than the penal rent. Certainly, it cannot be set so high as to consume a significant portion of the emoluments, let alone such amount in its entirety.
31. It follows from the foregoing discussion that even as per PTCL's own showing, it could at most claim the penal rent from the plaintiffs who retired in the normal course, i,e, an amount not greater than 11.25% of the pension. However, I may note that even this is not free from doubt. There is some inconsistency between Regulation 17.29(2) and Regulation 17.30. Both the regulations -refer to emoluments, but in the latter, this term is immediately qualified by the words "of pay". It is therefore at least arguable that the charging of penal rent is only relevant for a person in service, and not for someone who has retired. But, for present purposes, I assume in favour of PTCL that it can charge penal rent even from employees who have retired and continue to hold PTCL accommodation beyond the six month period. The next question is whether ' PTCL is entitled to adjust this amount against the pension payable? It appears that Regulation 17.33 is the only regulation that allows for an adjustment of rent, and it will be noted that this regulation speaks of "pay" only and not emoluments in general. Now pay and pension are two separate and distinct concepts and are separately set out in the definition of emoluments (Regulation 17.01(b) noted above), There does not therefore appear to be anything in chapter 17 as would permit PTCL to adjust the penal rent due from any of the relevant plaintiffs against the pensions payable to such plaintiffs. If at all PTCL wishes to recover such an amount, it must seek its remedy elsewhere in accordance with law.
32. The upshot therefore is that PTCL, even on the basis of its own case in relation to those plaintiffs who retired in the normal course, is entitled at most only to charge penal rent (i,e,, 11.25% of the pension) but in any case cannot recover this amount by way of an adjustment against the pension payable.
33. To sum up the foregoing analysis and discussion in relation to both categories of plaintiffs, it is my view that the stoppage/adjustment of the plaintiffs' pensions by PTCL was impermissible and unlawful, even on the, basis of its own case. In view of this finding, it is not necessary for me to consider the other aspects of the matter such as the validity or otherwise of the lease deeds, the alleged violation (or otherwise) of any interim orders made in Suit 828 of 1991, etc. It is also not necessary for me to consider in any detail the case-law relied upon. By learned counsel for the plaintiffs and PTCL respectively, other than as has been examined herein above. It also necessarily follows in my view that the plaintiffs have made out a case for interim relief. They are entitled, unless anything to the contrary is shown, to the payment of pension. It cannot be doubted that they must, to a greater or lesser degree (depending on the specific circumstances of each) be suffering on account of the non-payment of pension. Such injury and suffering must be regarded as materially affecting their lives. In my view, ill the ingredients for interim relief are in place in favour of the plaintiff.
34. Before concluding, I may note that the foregoing observations are only for purposes of the present order and in the context of interim relief The suit, when it goes to trial, will of course be decided strictly on the basis of the evidence as is actually led by the parties, uninfluenced by anything said herein.
35. Accordingly, I hereby allow both the applications for interim relief. PTCL shall, within a period of 10 days from today, pay in full all arrears of pension to the plaintiffs that have accumulated on account of its putative adjustments by way of rent or otherwise, and shall henceforth make payment in full of the pension due to each plaintiff each month by or before the stipulated date, and if no date is so provided, by the fifth day of the month. For present purposes, the pension payable for July, 2012 shall be deemed to be in arrears.