' ANWAR ZAHEER JAMALI, J.---These two appeals with leave of the Court as per order dated 13-12- 2005 arise out of common judgment dated 18-9-2003, in I.C.As. Nos.890 of 2001 and 886 of 2001, passed by a learned Division Bench of the Lahore High Court at Lahore, whereby I.C.A. No,890 of 2001, filed by the present appellants was dismissed and other I.C.A. No,886 of 2001, filed by respondent No,1, was allowed, and consequently the common impugned judgment dated 1-10-2001 in Writ Petition No,10423 of 1998, passed by learned Single Judge in Chambers of the Lahore High Court, Lahore to the extent of granting relief to six petitioners Nos.13, 58, 60, 62, 63 and 64 before it, was set aside and, the writ petition, referred to above, filed by the present appellants and others was dismissed as a whole.
2. Briefly stated, the relevant facts leading to this litigation are that sixty five former employees of Pak American Fertilizer Limited, Iskandarabad, District Mianwali, who had earlier opted for Voluntary Separation Scheme (VSS) offered by their employer (respondent No,1) on 11-7-1997, had brought their grievance before the High Court on the plea of discrimination. According to them, the employees of other two sister concern of National Fertilizer Corporation of Pakistan, in their Golden Hand Shake Scheme (GHSS) had offered benefit of 1 + 4, instead of 1 + 2 offered to them under VSS.
The case was hotly contested by the respondents before the High Court, where respondents Nos.1 and 2 had not only challenged the maintainability of the petition before the High Court, but further explained the facts and circumstances wherein two separate schemes i,e, VSS and GHSS were introduced at different times.
3. However, the learned Single Judge in Chambers of the Lahore High Court, vide his judgment dated 1-10-2001 ultimately found only six out of sixty five petitioners entitled for the relief claimed by them and accordingly disposed of the petition for the following reasons:-- "I have. Gone through the copies of the several documents placed on record by the two parties.
According to letter dated 11-7-1997 addressed to the workers it was explained on behalf of respondent No,1 that the Plant has outlived its economical life and it has to be closed and VSS is being offered. The terms and conditions were annexed. Now it is not the case of the petitioners that the terms stated in the said letter have not been complied. Learned counsel for the respondents has very fairly stated that notice (Annexure A/1) was in fact displayed. Now this notice is dated 22- 9-1997 and it informs the factory workers that VSS has been extended to 25-9-1997 and that they should take its benefits. However, if at a later stage Golden Hand Shake Scheme is introduced, then the benefits will be given to all the workers. I find force in the arguments of the learned counsel for the petitioners that those of the workers who had given their option after the said representation ought to be given the benefits of the later Golden Hand Shake Scheme as it can be safely argued that they opted for VSS on the said representation of respondent No, 1 . I have checked up the records, with the assistance of the learned counsel for the parties and I find that only petitioner No,13 (Haq Nawaz), 58 (Muhammad Aslam, Helper), 60 (Ghulam Rasul, Sr. Operator) 62 (Mulazim Hussain, P/Attdt.), 63 (Muhammad Aslam, C.T. Attdt.) and 64 (Muhammad Hussain, Helper) are the persons who exercised their option on or after 22-9-1997. This writ petition is accordingly allowed to the extent of the said petitioners Nos.13, 58, 60, 62, 63 and 64 and the respondents are directed to pay them the benefits in accordance with the Golden Hand Shake Scheme referred to in notice dated 22-9-1997."
' Against such judgment in Writ Petition No,10423 of 1998, the employer Messrs Pak American Fertilizer Limited, preferred I.C.A. No,886 of 2001 to the extent of grant of requisite relief to six of the petitioners before the High Court, while thirty six other petitioners before the High Court, whose claim were rejected through the impugned judgment against them, filed I.C.A. No,890 of 2001, to challenge the said judgment to that extent. These appeals were heard together by a learned Division Bench of the Lahore High Court and by impugned judgment dated 18-9-2003 the appeal preferred by the Messrs Pak American Fertilizer Limited was allowed, while the other appeal preferred by thirty six other petitioners before the High Court was dismissed. Reasons thereof are reproduced as under:-- "(7) As far as the merits of the case, we do not find any illegality in the order of the learned Single Judge, vis-a-vis the appellants in this ICA, because the VSS was voluntary scheme giving an option to the employee to avail the benefit and put an end to their services, this option has been duly exercised by the appellants by the original cut off date and received their dues without any protest, thus the matter qua them is covered by the principles of past and closed transaction. Though on the question of discrimination, much has not been said in the judgment. But examining this ground ourselves, we do not find any merits in this plea, because the respondent No,1, closed its project for economic viability, while this is not the case of Lyallpur Chemical and Fertilizers Limited. The situation in both the cases is not at par, resultantly there is no breach or right to equality as enshrined by the Article 25 of the Constitution, by comparing the case of the appellant with the other said concern, resultantly this ICA has no force and is hereby dismissed.
(8) As regards the other appeal i,e, I.C.A. No,886 of 2001 is concerned, learned Single Judge in Chamber, has taken the view that because the original cut off date was 22-9-1997, and the respondents Nos.1 to 6 did not initially avail VSS before that date, but were induced to do so, when the notice was issued by the Senior Manager, on 22-9-1997, which clearly mention that if the VSS scheme is availed, and subsequently, G.H.S.S. Is introduced, the worker would be given the benefit of GHSS as well, suffice it to say that having availed the VSS scheme, even if after 22-9-1997 and before the second cut off date the said respondents made applications for the payment of their dues which were cleared to them by 6-12-1997, whereas golden hand shake scheme was introduced on 19-2-1998. Had the respondents not received their dues and by the time, the GHSS was introduced, they on the basis of promise made to them, in the notice dated 22-9-1997 might have been entitled to the benefit under G.H.S.S. But such promise cannot be extended for an unlimited period of time and shall be reasonably construed to .Mean, that the promise was till the time, the dues under VSS were not cleared and Gold Hand Shake Scheme has been introduced by that time. But once the respondents have received the amount due to them under VSS, for all intents and purposes, it was a matter falling within the domain of past and closed transaction rule.
Particularly, when at the time of receiving the amount, the respondents have not reserved their right under GHSS. Their case thus too would be covered by past and closed transaction. The learned Single Judge has not kept in view this aspect, therefore, the relief granted to the respondents by the learned Single Judge in Chambers, cannot be sustained, resultantly, I.C.A.
No,886 of 2001 is allowed and by setting aside the order of the learned Single Judge in this appeal the writ petition of respondents Nos.1 to 6, is dismissed."
4. Mr. Asmat Kamal Khan, learned Advocate Supreme Court for the appellants vehemently contended that if the terms offered under VSS dated 11-7-1997, availed by the appellants are placed in juxtaposition with the terms offered under GHSS, subsequently introduced by National Fertilizer Company (N.F.C.) in their other two sister concerns, than it will be seen that the present appellants ha e been unjustly discriminated in the earlier scheme by extending them e benefit of 1 + 2 formula, instead of 1 + 4 formula. In support of hi submissions, he referred the notice dated 22- 9-1997, purportedly issued by the management of the Pak American Fertilizer Limited to show that by this letter the appellants and other workers/employees of Pak American Fertilizer Limited were given clear understanding and assurance th t if in future NFC introduces GHSS with benefit of 1 + 4 formula an its benefit shall also be extended to the appellants. To add forc to his submissions in this regard, he also made reference of letter da ed 16-9-1997 issued from the office of Privatization Commission of Pakistan and other correspondence on the subject.
5. Conversely, the learned Advocate Supreme Court for respondents Nos.1 and 2 in both the appeals strongly urged that firstly, the Constitutional petition filed by the appellants before the Lahore High Court was incompetent and not maintainable in law, as respondent No,1 is a limited company incorporated under the Companies Ordinance 1984, having no statutory rules and regulations, therefore, the jurisdiction of the High Court in view of the ratio of judgment in the case of Muhammad Idrees v. Agricultural Development Bank of Pakistan (PLD 2007 SC 681) was barred.
Secondly, as `o the merits of the case, he contended that relevant record produced with these appeals would show that VSS was introduced by respondent No,1 on 11-7-1997 after the closing down of its industrial unit, as per decision of the Board of Directors of Pak American Fertilizer Limited in its meeting held on 16-6-1997, as its plant has outlived it economical life, and under these compelling circumstances such sche e was introduced mainly to give benefit to the appellants and her works/employees of the company, as due to closure of the factory therwise they were liable for retrenchment as per law and in that process they would have eligible to get much lesser benefits. Thus, VSS was welcomed and opted by more than 95% of the appellants between 11-8- 1997 to 15-8-1997, and except six appellants, who were found entitled for grant of some relief by the learned Single Judge in the High Court, vide his judgment dated 1-10-2001, all had exercised their options before 22-9-1997. Similarly, an absolute majority of the appellants had taken their total dues/benefits under VSS from respondent No,1 before 19-9-1997 and it was none of the appellants' case before the High Court that no payment was made to them. In such circumstances, the claim of appellants, as rightly held by the learned Division Bench in the High Court, was a past and closed transaction for all intents and purposes, and it has no nexus to the subsequent GHSS introduced by two other sister concerns of respondent No,1 in the month of February 1998. Further submission of the learned Advocate Supreme Court was that once the VSS was voluntarily accepted, option was exercised and full payment was received by the appellants much before the introduction of GHSS, no other benefit could have been claimed or extended to them on the basis of GHSS, which was introduced at a different time and in different circumstances. In support of his submissions, learned Advocate Supreme Court placed reliance on the following cases:--
(i) Sikandar Aziz v. Secretary, Ministry of Industries and Production (2001 PLC (C.S.) 205).
(ii) National Bank of Pakistan v. Nasim Arif Abbasi (2001 SCMR 446).
(iii) Wali-ur-Rehman v. State Life Insurance Corporation (2007 PLC (C.S.) 836).
(iv) State Bank of Pakistan v. Khyber Zaman (2004 SCMR 1426).
' A review of the above referred judgments cited at the Bar reveals that in the case of Sikandar Aziz, writ petition filed before the High Court was dismissed by learned Single Judge of the Lahore High Court with the observations that since Voluntary Separation Scheme introduced by the authorities, was voluntarily availed by the petitioners and its benefits were received by them, the principle of past and closed transaction was attracted, therefore, the petitioners had no right to wriggle out of the same at a later stage. In the case of National Bank of Pakistan, the case of ex-employees of National Bank of Pakistan, who had voluntarily opted for GHSS was considered on the yardstick of discrimination prohibited under the Article 25 of the Constitution, in the context of some benefits allowed to the in-service employees after the cut off date of GHSS, and it was held that the principle of reasonable classification existed between the two categories of employees, therefore, those who had accepted GHSS for retirement and were paid full emoluments for the period they had worked, were not entitled for any subsequent benefit. In the case of State Bank of Pakistan, considering the case of the employees of State Bank of Pakistan, who had volunteered for GHSS, but later on claimed the benefit of a circular subsequently issued by the State Bank of Pakistan, were non-suited on account of the fact that any subsequent benefit, after the implementation of GHSS, extended to the employees of the State Bank of Pakistan could not have been extended to the employees who have accepted GHSS prior to the grant of such extended relief to other employees, as they had voluntarily opted for such scheme and for interpretation of document, intention of the parties is to be ascertained from the contents of the document itself and other attending circumstances. Therefore, the benefit of circular subsequently issued by the State Bank of Pakistan could not be given retrospective effect to accommodate the petitioners. In the case of Waliur-Rehman, the above view was reiterated and affirmed with the observation that the benefit of restructured pay scales could not be extended to the employees who have earlier opted for VSS as such restructuring of pay scales was meant for the employees in service and not those who have exercised their options of voluntary retirement separation scheme. It was further held that principle of approbate and reprobate shall be applicable in such cases, therefore, the retired employees under the voluntary retirement separation scheme could not legitimately claim monetary benefits which the Corporation was extending to its employees from time to time depending upon changed circumstances and due to flux of time.
6. Mr. Dil Muhammad Khan Alizai, learned Deputy Attorney General, representing respondent No,3 in these appeals has fully supported the arguments of learned Advocate Supreme Court for respondents Nos.1 and 2. He further added that neither the notice dated 22-9-1997 has any legal sanctity or relevancy to the controversy involved in the present appeals, nor the letter dated 16-9- 1997 or any other correspondence between the Privatization Commission of Pakistan and respondent No,1, for the reason that GHSS was entirely an independent scheme, which was subsequently introduced by the sister concerns of respondent No,1 in the month of February 1998, while the letter dated 16-9-1997 issued by the Deputy Secretary, Privatization Commission was relating to GHSS and VSS Schemes for the employees of Lyallpur Chemicals and Fertilizers Limited, Jaranwala and Haripur Fertilizer Limited and not for the benefit of retrenched employees of Pak American Fertilizer Limited. He also contended that case of the appellants, after receipt of full payment under VSS, was a past and closed transaction, therefore, both these appeals are liable to be dismissed.
7. We have carefully considered the above noted submissions made before us by the learned ASCs and the learned Deputy Attorney General for Pakistan. The perusal of case record reveals that all the petitioners before us, who are former employees of Pak American Fertilizer Limited, Iskandarabad, District Mianwali, had willingly opted for VSS offered to them by their employer on 11- 7-1997 and all the benefits under this Scheme were accordingly received by them much before the introduction of GHSS in two other sister concerns of National Fertilizer Corporation of Pakistan (Pvt.)
Limited. There is sufficient material available on record to show that closing down of Messrs Pak.
American Fertilizer Limited was under entirely different facts and circumstances, and based on such ground realities instead of adopting the course of retrenchment of the petitioners from service with much lesser benefits, VSS was offered to them with 1 + 2 formula. As against it the introduction of GHSS with benefit of 1 + 4 formula was subsequently introduced in the month of February 1998 with some other object and purpose. Thus, it cannot be said that while offering VSS to the present petitioners they were unjustly discriminated in this reard as the very spirit of Article 25 of the Constitution provides room for reasonable classification, depending upon the facts and circumstances of each case, which in the instant case are evident from the record and justify introduction of different schemes by the employer of other two sister concerns. In addition to it, the letter of Privatization Commission of Pakistan dated 19-9-1997 and other correspondence in this regard also indicate that it pertain to GHSS and VSS for the employees of Lyallpur Chemicals and Fertilizers Limited, Jaranwala and Haripur Fertilizer Limited and not for the benefit of petitioners/employees of Pak. American Fertilizer Limited. Further, it would be seen that out of hundreds of employees of respondent No,1 only 65 employees/petitioners had agitated their grievance with reference to alleged discrimination qua GHSS/VSS applicable to Lyallpur chemicals and Fertilizers Limited and Haripur Fertilizer Limited, while others have remained contended and satisfied. Although this fact alone may not be sufficient for non-suiting the present petitioners, but the fact remains that all the sixty five petitioners, including the six, who were granted such relief by learned Single Judge in the High Court, vide his judgment dated 1-10-2001, had received all the benefits of VSS much before the introduction of GHSS on 16-2-1998. In so far as the remaining six petitioners are concerned who were respondents before the High Court in I.C.A. No,866 of 2001, their claimed has also been properly dealt with by the learned Division Bench in the High Court in the impugned judgment dated 18-9-2003, being past and closed transaction. It will be seen that in a recent judgment of this Court in the case of Salma Moosajee v. Federation of Pakistan and others(sic.) and another connected petition, to which one of us (Anwar Zaheer Jamali, J.) is a signatory, in somewhat similar facts and circumstances, claim of the petitioners for grant of subsequent benefits after their acceptance of GHS Scheme was turned down by this Court, inter alia, for the reasons which read as under:-- it We have also perused the option Form of Optional Retirement Plan and have noted that clause 3(1) reads as under: "3. ORP-2002 INCENTIVE PAYMENTS: ' The following incentive payments under the Plan, in addition to the normal retirement benefits, are offered to all those eligible employees who opt in favour of the plan.
(1) An amount equal to 2.75 (Two and three quarters) months current basic pay for each completed year of service or an amount equal to 1.25 months current basic pay for remaining month of service, whichever is less, subject, however, to maximum of 90 months basic pay."
' From a perusal of the above clause it is seen that the amount of payment has to be made on the basis of current basic pay. This retirement plan is dated 26th June, 2002 and the petitioners had voluntarily and without any coercion filed option forms on 1-8-2002 and therefore their current salary will be their salary as on 26th July, 2002 and not the salary enhanced.
15. We have also perused the impugned judgment of the learned High Court and have seen that the learned High Court has given cogent reasons for rejecting the petition of the present appellants and have rightly relied on the extract from the judgment of this Court in the case of I.A. Sherwani v.
Federation of Pakistan (1991 SCMR 1041). We are therefore of the view that the payment made to the petitioners under the Optional Retirement Plan, which was much more than the regular pensionary benefits had become a past and closed transaction and the petitioners cannot benefit from any enhancement made after their retirement despite it being effective with retrospective effect. We also find ourselves in respectfully agreement with the judgment of this Court in the case of Wali-ur-Rahman quoted supra and therefore respectfully following the above judgment and for the reasons discussed above we are of the considered opinion that the impugned judgment does not suffer from any illegality and is unexceptionable and no interference is called from this Court.
Both these appeals are therefore dismissed."
8. As we have seen from the record, in the instant case VSS and GHSS were two independent schemes, which were introduced at different times in two different institutions for the benefits of two different sets of employees under different circumstances. Thus, the question of compar son of the two schemes on the yardstick of unjust discrimination or violation of the spirit of Article 25 of the Constitution does not arise.
9. Besides, so far as the claim of the six appellants in Civil Appeal No,1875 of 2005 is concerned, it may be added here that they had also voluntarily accepted the VSS as per its original terms and conditions, though during the extended time up to 25-9-1997, and they had also received their total dues and benefits under the said scheme on 6-12-1997 i,e, much before the introduction of GHSS in the sisters concerns on 19-2-1998, whereas the contents of the notice dated 22-9-1997 regarding extension of time by ten days for acceptance of VSS by other employees of Pak. American Fertilizer Limited qua its terms were not part of VSS approved by the Board of management of the respondents. Thus, the same would not change the status of these appellants as, after receipt of full payment on 6-12-1997, their cases would also fall within the mischief of past and closed transactions.
10. The upshot of the above discussion is that both these appeals, being devoid of merit, are hereby dismissed.