' IJAZ UL AHSAN, J.--- The brief facts of the case are that the plaintiffs are ex-employees of Pak American Fertilizers, Ltd. (PAFL), which was a government owned concern. The Privatization Commission decided to privatize PAFL, and after completion of the necessary legal formalities, a share-purchase agreement was signed between the Government of Pakistan and Azgard Nine Ltd.
(buyer/defendant No,3) in 2006. Pursuant to the said agreement, a Golden Hand Shake Scheme
(GHS) was offered to all regular employees working with PAFL, on payment of all legal terminal legal dues for each completed year of service upto to 16th May, 2006. The salient features of Golden Hand Shake Scheme were as follows:--- "(I) The calculation of completed years of service shall be from the date of joining service with Pak American Fertilizers Ltd., upto 15th May, 2006. The basic salary for the scheme shall be as admissible on 15th May, 2006 Pak American Fertilizers Ltd, shall be responsible for payment of '1' to the optees of GHS. '1' being all terminal/legal dues (including those founded by Pak American Fertilizers Ltd., as the case be). Payment of "1" shall be made by Pak American Fertilizers Ltd., directly to the optees while found months last basic salary for each year of service shall be paid to the optees of GHS under arrangement of the Privatization Commission after the transfer of management to the Successful Bidder.
(II) Any existing advance/loan or other pecuniary liabilities towards company shall be adjusted against the amount payable to workers under legal dues. The last date for submission of option is 15th May, 2006.
(III) The Gold Hand Shake Scheme (GHS) shall apply only to those regular workers, who joined service with Pak American Fertilizers Ltd., before 7th September, 2005."
2. Under the terms and conditions of GHS, it was decided that the service period of each employee would be calculated from the date of joining service with NFC/PAFL up to 15th May, 2006. It is common ground between the parties that the plaintiffs, who were regular employees of PAFL accepted the GHS and submitted their options by the target date. PAFL prepared a list of all employees, giving complete details of their dates of joining service, grade, basic pay and the amount payable to them under the GHS. The grievance of the plaintiffs is that while defendant No,3 fulfilled all its financial commitments defendant No,1 backed out of its promise with regard to payment of Legal/terminal dues calculated from the date of joining service. It is also alleged that a policy of pick and choose was adopted whereunder the dues of some employees were calculated from the date of their appointment while those of the plaintiffs were calculated from the date of regularization. The plaintiffs protested against the discriminatory treatment but to no avail.
3. Through this suit, the plaintiffs seek payment of the differential between the amount actually paid to them and the amounts which they claim should have been paid to them on the basis of calculation of their terminal dues from the date of their appointment rather than from the date of their regularization. Notices were issued to the defendants, who have filed their written statements.
The stance taken by defendant No,1 in its written statement is that defendant No,1 never backed out of its promise to pay the dues of the plaintiffs. It is submitted that for the purpose of settlement of dues of its employees under GHS, defendant No,2 had prepared a list of all employees with their first date of joining and provided the other requisite information including amounts payable to each employee. It discharged its obligations by making payments to the plaintiff of all amounts falling under the liability of defendant No,1 under GHS. It is, therefore, stated that defendant No,1 is not liable to pay any further amounts to the plaintiffs. It is pointed out that defendants Nos.2 and 3 vide letter dated 13-11-2006 had taken up the issue with defendant No,1 however, in response to the aforesaid letter, defendant No,1 took the stance that as per the GHS/VSS policy, only regular service was to be considered for calculation of service period. Defendants Nos.2 and 3 have, however, denied any liability to pay amounts and have sought dismissal of the suit to their extent, on the ground that they have discharged their entire liability towards the plaintiffs.
4. Confronted with the aforenoted stance taken by defendants Nos.2 and 3, the learned counsel for the plaintiffs submits that he would not press the suit against defendants Nos.2 and 3 in view of the fact that under the GHS, the liability to pay the dues being claimed by the plaintiffs lies with defendant No,1. On instructions, he states that he does not press the suit against defendants Nos.2 and 3. Accordingly, to the extent of said defendants, the suit is dismissed as not pressed.
5. Defendant No,1 has, in its written statement, raised preliminary objection to the effect that the suit had been filed through Mr. Muhammad Munawar Hussain, who does not hold valid power of attorney on behalf of the plaintiffs. However, confronted with the power of attorney signed on behalf of the plaintiffs in favour of Mr. Munawar Hussain Shah, which is available on record, the learned counsel for defendant No,1 has not pressed this objection. On merits, the stance taken by defendant No,1 is that under the GHS only regular workers posted at PAFL were given the option for the GHS up to the cutoff date of 15th May, 2006. It is stated that all regular employees of PAFL could opt for the GHS and were entitled to receive all terminal dues from PAFL. In addition, such employees were also entitled to receive four months last basic pay for each year of service from the date of joining PAFL till 15th May, 2006. It is stated that besides regular workers, there were certain workers such as daily wagers, contract employees, employees on stipends and employees receiving training. Further, there were certain employees, who had been hired on contract basis on a fixed salary. Since the GHS was offered only to regular workers, the service period for the purpose of calculation of GHS could only be considered starting from the date of joining service with PAFL as regular workers upto 15th May, 2006.
6. From a perusal of the contents of the plaint and the written statement filed by defendant No,1, it is clear and obvious that the entire controversy revolves around interpretation of the word "regular workers" used in the agreement related to the GHS, which is admitted by both sides. Both the learned counsel agree that the suit can be decided on the interpretation of the said words.
Therefore, with the consent of both sides, the following legal issue is framed and the fate of this suit can be decided on the basis of decision of the said issue:--- "What is the correct meaning and interpretation of the words "regular workers" as used in the GHS offered to employees of PAFL " OPP
7. The learned counsel for both sides agree that there is no need to record evidence. The documents available on record are admitted by both sides. Therefore, the suit can be decided on the basis of available record. The learned counsel further agree on the facts of the case and admit the relevant documents.
8. As stated above, the entire controversy revolves around interpretation of clause-3 of the terms and conditions of the GHS. The stance taken by the plaintiffs is that they were regular workers of PAFL and were entitled to receive four months last basic pay for each completed year of service from defendant No,1 from the date of joining service up to 15th May, 2006. They submit that in the list furnished by PAFL, their status as regular workers was acknowledged and confirmed. On the basis of the same list they had received terminal benefits from PAFL (defendant No,2). Therefore, defendant No,1 had no legal authority, basis or justification to take the stance that payments required to be made under the terms and conditions of Golden Hand Shake Scheme by defendant No,1 will be made on a different criteria i,e, from the date of regularization. He further submits that a large number of similarly placed employees were paid their dues on the basis of their date of joining service and not from the date of regularization. He, therefore, submits that the stance of defendant No,1 is discriminatory and not supported by the record.
9. The learned counsel for defendant No,1, 'on the other hand, has argued that the wards "regular workers" as used in paragraph-3 of the terms and conditions of GHS employees are to be interpreted to mean that dues were required to be paid by defendant No,1 on the basis of date of their regularization into service rather than from the date of joining service. In addition, employees receiving daily wages, working on contract basis were receiving stipends as trainees etc. Were not entitled to the benefit of the said scheme.
10. I have asked the learned counsel for defendant No,1 to show any material or documents that may indicate that any of the plaintiffs were daily wagers, contract employees or trainees receiving stipend from the company. However, no such material has been placed on record that may furnish basis for the stance taken by defendant No,1 that any or all of the plaintiffs fell in the said category.
He has not denied the fact that thecompany had furnished a complete list of employees with their grades, date of joining service, total service with the company and the basic salary on the basis of which terminal benefits were to be paid by the company as well as Privatization Commission. The said list was signed by the management of the company as well as representatives of CBA. It is also not denied that the names of all the plaintiffs featured in that list as regular employees. He has, however, submitted that payment by defendant No,1 under the Golden Hand Shake Scheme was to be calculated on the basis of four basic salaries for each year of service starting from the date of appointment with the defendant company, as a "regular employee".
11. I have heard the learned counsel for the parties and carefully examined the record.
12. For ease of reference, the terms and conditions of Golden Shake Hand Scheme are reproduced below:--- "With reference to NFC/s Letter No,NFC(Pers1)6533 dated 26th April, 2006 and in pursuance of the provisions of share/purchase agreement between Government of Pakistan and Azgard Nine Limited in respect of privatization of Pak-American Fertilizers Limited, it has been decided to offer Golden Hand Shake Scheme (GHS) to all the regular workers posted at PAFL (a 1+4, where '1' denotes legal dues including gratuity etc. And '4' denotes 4 basic salaries for each completed year of service upto 15th May, 2006. The basic salary will also include the Cost of Living Allowance
(CLA) @ Rs,400. It is clarified that no other allowance would be included in the calculation of basic salary. Salient features of the GHS are as under:
1. The calculation of completed years of service shall be from the date of joining service with PAFL upto 15th May, 2006. The basic salary for the scheme shall be as admissible on 15th May, 2006.
PAFL shall be responsible for payment of '1' to the optees of GHS. '1' being all terminal/legal dues (including those funded by PAFL, as the case may be). Payment of '1' shall be made by PAFL directly to the optees while four months' last basic salary for each year of service shall be paid to the optees of GHS under arrangement of the Privatization Commission after the transfer of management to the Successful Bidder.
2 Any existing advance/loan or other pecuniary liabilities towards company shall be adjusted against the amount payable to workers under legal dues. The last date for submission of option is 15th May, 2006.
3. The Golden Hand Shake Scheme (GHS) shall apply only to those regular workers who joined service with PAFL before 7th September, 2005.
4. The Successful Bidder and the Company shall not require any or all workers of PAFL who are opting for GHS to vacate their residences before the academic year of the children of the employees is completed. Education year shall be deemed to have been completed upon conclusion of annual examination with respect to that academic year. Such workers will continue to avail residential facility on the same terms and conditions as enjoyed by them prior to closing, provided that the payment of GHS shall be made after vacation of the present residence.
5. The Successful Bidder and the Company shall neither discontinue nor refuse payment of tuition fees of children of regular workers who are opting for GHS and are currently enrolled at the Institute of Engineering and Fertilizer Research, Faisalabad.
6. The regular workers, who do not opt for GHS are entitled to purchasing balance shares at Rs,483.30 per share. All those who shall be willing to purchase shares should submit their consent latest by 20th May, 2006, after which it shall stand revoked."
13. From a perusal of the terms and conditions of GHS, the following features emerge:---
(i) GHS was offered to all regular workers posted at PAFL at the rate of 1:4 where 1 ' denoted completed year of service and '4' denoted four basic salaries for completion of each year of service upto 15th May, 2006.
(ii) Calculation of completed year of service was required to be made from the date of joining service with PAFL upto 15th May, 2006.
(iii) Four months' basic salaries for each year of service was required to be paid to the optees of GHS by the Privatization Commission after transfer of management to the successful bidder;
(iv) GHS was applicable only to those regular workers, who joined services of PAFL before 7th September, 2005.
(v) Defendant No,2, who was the employer of the plaintiffs had included their names in its list of regular workers and had paid them accordingly.
14. It is not the case of the defendants nor has any evidence been placed on record to indicate that any of the plaintiffs was a daily wager, contract employee or a trainee who was receiving stipend.
Further, it is also not the case of the defendants that any of the plaintiffs had joined service after 7th September, 2005. Therefore, reliance of the learned counsel for defendant No,1 on paragraph-3 to argue that use of the words "regular workers" was intended to convey an understanding that calculation was to be made from the date of regularization is misconceived. A bare reading of paragraph-3 shows that it is only meant to exclude those workers from the benefit of Golden Hand Shake Scheme, who had joined services with PAFL after 7th September, 2005.
15. This leaves me with the opening paragraph of the terms and conditions of GHS, which is the only paragraph in addition to the preamble in which the words "regular workers" has been used. It is clear and obvious that the said words have been used in a generic sense to distinguish regular workers from those workers who were daily wagers, working on contract basis or trainees receiving stipends. By no stretch of the language, can it be interpreted that the dues of a regular worker in the aforenoted sense will be calculated from the date of regularization and not from the date of joining service considering that since the date of joining till the date of opting for GHS, such workers had been in continuous service of PAFL. In other words, a worker, who had joined PAFL before 7th September, 2005, was not a worker hired on daily wages, a contract employee or a trainee receiving a stipend and was in service of PAFL till 15th May, 2006 and had opted for GHS was entitled to receive four basic salaries for each completed year of service upto 15th May, 2006 from the date of joining service. Any other interpretation would amount to reading something into the express language of the first paragraph of the terms and conditions of the Golden Hand Shake Scheme, which clearly and unambiguously states that "the calculation of completed years of service shall be from the date of joining service with PAFL upto 15th May, 2006." Therefore, I find that the argument of the learned counsel for defendant No,1 that the calculation of completed year of service was to be made from the date of regularization and not from the date of joining service is neither logical nor supported by the language of the scheme.
16. It may further be noted that the plaintiffs are workmen and their years of service with PAFL on the cutoff date ranged from 7 to 35 years with a few solitary exceptions. In terms of the Standing Orders Ordinance, a workman who renders continuous service for more than 90 days automatically stand regularized. Further, even their employer, who had all the requisite records, had found them entitled to payment of four basic salaries for each completed year of service in addition to terminal benefits payable to them. These amounts were actually paid to them. These facts further support the case of the plaintiffs. Nothing by way of documentary or oral evidence has been placed on record to show that the plaintiffs were unconfirmed employees, daily wagers, contract employees or trainees. The sole reliance of the defendant's case is on interpretation of the word "regular workers", which, as discussed above, has a different connotation than that argued for the defendants in the context of the language of the Golden Hand Shake Scheme.
17. In view of the foregoing, I hold that the plaintiffs are entitled to payment of 4 basic salaries for each completed year of service upto 15th May, 2006 in accordance with paragraph-1 of the terms and conditions of the Golden Hand Shake Scheme read with the list furnished by respondent No,2.
18. In view of the foregoing, the suit of the plaintiffs is decreed in their favour and against defendant No,1 and it is declared that the action of defendant No,1 of calculating payments under the Golden Hand Shake Scheme from the date of regularization and not from the date of appointment is illegal and without lawful authority. As a consequential relief, defendant No,1 is directed to make payments of the difference between the payments already made and the amounts payable, calculated on the basis ,of date of appointment with PAFL as per the agreed terms and conditions of the Golden Hand Shake Scheme with special reference to paragraph-I of the scheme reproduced above. The suit against defendants Nos.2 and 3 is dismissed as not pressed.
19. In view of the fact that short payment appears to have been made on the basis of bona fide mistake in interpreting the terms and conditions of the Golden Hand Shake Scheme, no costs are being awarded.