JAWAD HASSAN, J. Through the instant constitutional petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner is seeking a direction to the Respondents to grant him full pension benefits and separation bonus of Voluntary Separation Scheme (the "VSS").
2. The facts tersely revealed from the petition are that the Petitioner, while serving with the Respondents, opted for the "VSS" which was accepted by the Respondents in terms of letter dated 07.02.2008. Subsequently, on 03.03.2008, the Petitioner submitted an application requesting to grant him full pension benefits with separation bonus on the ground that the accepted "VSS" is contrary to his condition mentioned in "VSS" option form. When needfull was not done, he submitted another application on 28.04.2008 with the same request but it was turned down on 19.05.2008. Non-redressal of the Petitioner's grievance prompted him to file W.P.No.2952 of 2008 which was dismissed on 27.04.2009. The said order was assailed before Division Bench through I.C.A.No.270 of 2009 which was disposed of on 25.01.2012 with direction to the Respondents to re- examine the case of the Petitioner and even then, he has any grievance, he may have resort to remedy available under the law. Due to non-compliance of aforesaid directions, the Petitioner filed Criminal Original No.899-W of 2012, that too was disposed of on 10.05.2012 with the observation that the Respondents had passed order dated 21.02.2012 against which the Petitioner should avail appropriate remedy under the law. Hence this petition.
3. Report and parawise comments were filed on behalf of the Respondents vehemently denying the allegations levelled in the petition and praying for dismissal of the same.
4. Learned counsel for the Petitioner inter alia contended that the Petitioner, after rendering, 19 years' service applied to Respondent for the "VSS" which was accepted on 07.02.2008; that the said acceptance was subject to condition of granting pension benefits and separation bonus but the Respondents, till date, have not granted such benefits; that option- form was to be accepted in totality and the Petitioner has to be benefited with pension benefits and separation bonus but the same is being denied by the Respondents despite filing various applications and approaching the Courts of law; that due to such action of the Respondents, the Petitioner has suffered mental torture and agony for the last fifteen years without any fault and he should be granted the said benefits at the present rate.
5. Learned counsel for the Respondents vehemently contested the arguments advanced by the learned counsel for the Petitioner and contended that the petition is not maintainable as the Petitioner himself opted to avail the "VSS" and accepted terms and conditions thereof hence he is estopped by his words and conduct; that the Petitioner is not entitled to reliefs claimed for as neither he had required length of' service nor separation bonus could be granted to him which only was admissible to the employees having BPS-16 as per the admitted terms mentioned in the "VSS".
6. Learned counsel for the Petitioner when asked as to how the Petitioner is entitled to pension benefits and separation bonus, when he voluntarily opted the "VSS" introduced by the Respondents, resultantly, was given severance pay, medical benefits, leave encashment and housing allowance depending upon his length of service, as computed under the offered scheme, learned counsel reiterated that the Petitioner has specifically mentioned his availing of the "VSS" which was subject to grant of pension benefits having long standing of service with the Respondents and separation bonus but this was not honoured by the Respondents.
7. I have heard the arguments of the learned counsel for the parties and have gone through the record.
8. This case was pending since 2012 without any fruitful progress and the Petitioner opted to file petitions before this Court one after the other. This is second writ petition on his behalf for getting same reliefs. It would be advantageous to state that the Petitioner first time approached this Court in year 2008 and filed W.P.No.2952 of 2008 which was dismissed on 27.04.2009 on the same grounds as agitated in this petition. Being aggrieved, he assailed aforesaid order before Division Bench through I.C.A.No.270 of 2009 which was disposed of on 25.01.2012 with direction to the Respondents to re-examine the case of the Petitioner. The Respondents re-examined the Petitioner's case and passed quasi-judicial order dated 21.02.2012. The said order though was produced during proceedings of Criminal Original No.899-W of 2012 and that too was disposed of with observation to challenge the same through appropriate remedy but the same has never been assailed by the Petitioner till date.
9. Through this petition, the Petitioner is claiming two benefits viz. pension benefits and separation bonus after opting the "VSS". The terms and conditions of the "VSS" on the basis of which it was offered includes the eligibility, length of service, being categorized therein, and other facilities such as severance pay, separation bonus, medical payouts, leave encashment, housing allowance, and early retirements. Admittedly, the Petitioner retired from service consequent upon exercise of his option under the. "VSS" Option/Wavier Form which reads as: Read the statements below and the sign and date this section.
I hereby confirm that I have read and understood the terms and conditions of Voluntary Separation Scheme.
I understand that my decision regarding participation in the Voluntary Separation Scheme as Indication on this Option/Waiver Form is voluntary and at my own will. I further that I may not retract my decision after submitting this signed option form to the authorized member of PTCL management or designee.
Employee Signature: _____________ Date: 11-01-08
10. The said "VSS" was circulated to the Petitioner by the Respondents on 15.11.2007 wherein it was specifically mentioned that "Your decision either to participate or not to participate is voluntary and at your own will". The Hon'ble Supreme Court of Pakistan in "Muhammad Rafiullah and others v. Zarai Taraqiati Bank Limited (ZTBL) through President, Islamabad and another" (2018 SCMR 598) has held as under: "Where an employee voluntarily accepted and received benefits under some arrangement with the employer out of his own free will then he could nor turn around and seek benefits that were ordinarily applicable to other employees"
11. The Petitioner, after reading and understanding the terms and conditions, has consciously opted "VSS" which, under the plethora of judgments, is a binding contract regulated under the Contract Act, 1872 and there is nothing to prevent him from entering into a contract in bargain with his post- retirement or pensionary benefits which he could have availed, for any prompt gain. The record available is silent about any compulsion by the Respondents to sign the "VSS" rather it is admitted position that the Petitioner himself opted it. The Hon'ble Supreme Court of Pakistan has already dilated upon the said issue in the case of "State Bank of Pakistan v. Imtiaz Ali Khan" (2012 SCMR 280) and has observed that "Voluntary Separation Scheme was voluntary and was not imposed upon employees and no one was compelled or was under duress, pressure or coercion to opt for the same and in such like cases the employee who opts for the Scheme is bound by it and could not claim the benefits to which he is not entitled". Importantly, the Petitioner himself opted for the "VSS" without any coercion or duress and accepted the terms and conditions mentioned therein.
Even for the sake of arguments, if the stance taken by the Petitioner is admitted as correct that his acceptance of the "VSS" was conditional as he specifically mentioned in option form about pension benefits and separation bonus even then before the signing of the "VSS", he was advised vide letter dated 15.11.2007 to understand the 'terms and conditions incorporated in the "VSS" and in case of any inconvenience to discuss with family, friends, colleagues before making any decision and additionally, VSS Support Centre were established by the Respondents for assistance but the Petitioner, having and availing full opportunities, opted 'to the "VSS" and he was fully aware of clause (viii) of the, terms and conditions of the "VSS" which makes it abundantly clear that "there can be no conditional acceptance of VSS" meaning thereby the "VSS" was not conditional or at the option of the Petitioner to incorporate his own wishes or will rather it has either to accept or reject by him strictly as per terms and conditions settled by the Respondents in the "VSS". The Petitioner after accepting the terms and conditions of "VSS" opted for it and now cannot be resiled therefrom at this belated stage. So in view of the law laid down in aforesaid judgment, the Petitioner, who himself opted for the "VSS", cannot deviate from the terms and condition mentioned therein.
12. Before proceeding further, it is clarified that an amount of Rs.995,863.16 accumulated out of "VSS" has not been received by the Petitioner so far. The Petitioner has set up his entitlement upon pension benefit and separation bonus on the basis of a reason stipulated in the Option Wavier Form whereby he had mentioned that his retirement would be subject to full pension benefit and separation bonus. While the Ropondents are of the view that such benefits cannot be granted to the Petitioner as he does not meet with mandatory requirements of the VSS Policy. Now the question arises how the Petitioner is entitled/qualified to be given the reliefs claimed for which he has already volunteered the "VSS" and accepted the terms and conditions thereof. So far as the relief regarding pension benefit is concerned, the Petitioner has mentioned his eligibility criteria in his VSS Calculation Worksheet according to which he was 40 years of age on 15.11.2007 having BSP Level 17, Gazetted with 17 years Qualifying Length of Service (QLOS). As per terms and conditions of the "VSS", the eligibility criteria for availing said benefit was prescribed as "20 qualifying years of service" whereas the Petitioner had only 17 years of service at his credit as on 15.11.2007. The next claim of the Petitioner is with regard to separation bonus, as per terms and conditions of the "VSS", the said benefit was only applicable to the employees of BPS-16 and below having less than 55 years of age but as per record, the Petitioner was working in BPS-17 as Engineer as on 15.11.2007 so this benefit also cannot be granted to him.
13. During the pendency of this petition, learned counsel for the Petitioner argued that the Petitioner has not been paid even a single penny till date and he is entitled to receive the same as per present value. While this stance was strongly agitated by learned counsel for the Respondents on the ground that the Petitioner has not fulfilled requirement stipulated in letter dated 07.02.2008 and that is the reason the accumulated amount out of "VSS" could not be released so far. It is noted that this Court on 07.12.2020, directed the Respondents "to arrange for payment of pensionary emoluments to the Petitioner under the "VSS" forthwith and in case there is any deficiency on his part he be taken on board and the said procedure be completed before next date of hearing". The Respondents complied with abovesaid order and filed C.M.No.02 of 2020 on 14.12.2020 by placing on record letter dated 10.12.2020 intimating the Petitioner to collect cheque from the office of Senior Manager Finance, CTR, Lahore along with its receipt and copy of cheque No.109148 dated 01.12.2020 for an amount of Rs.995863.00 and vide said order, the Petitioner was also directed to appear on 16.12.2020. On the said date, the Respondents presented the copy of cheque but the Petitioner remained reluctant to receive it merely on the ground that the amount has not been determined as per its true perspective. On this, counsel for the Respondents sought some further time to document this petition which was allowed. On 02.12.2021, C.M.No.01 of 2021 was filed for placing on record certain documents which include, Copy of Voluntary Separation Scheme, Option Form for VSS submitted by the Petitioner dated 11.01.2008, Acceptance letter dated 07.02.2008 along with copy of Off Boarding Paperwork Checklist and copy of Cheque bearing No.109148 dated 10.12.2020 for amount of Rs.9,95,863.00. Perusal of VSS 'Calculation Worksheet it reveals that an amount of Rs.995,863.16 was shown as an estimated settlement cheque after calculation and deductions which reads as follows:
14. Perusal of above makes it quite clear that the Petitioner was benefited with severance pay, medical benefits, leave encashment and housing allowance after commuting the amount of provident fund to the tune of Rs.1,062,879.00 and deduction of Rs.67,015.84 total Rs.995,863.16 and for the release of said amount, the Respondents through letter dated 07.02.2008 informed the Petitioner to sign and complete off-boarding paperwork in the following manner: "Before the VSS payout can be issued, you will need to sign and complete the of boarding paperwork given in the attached checklist. All documents in the attached checklist need to be directly mailed by you to the VRO Office. Delay in submission of completed paperwork may postpone PTCL's Issuance of your VSS payout. To facilitate the completion of these requirements, only your signatures or thumb impressions are required where indicated on the attached forms.
You are also required to complete the Tax Rate Selection and Tax Option Forms sent to you separately and submit to your respective DDO as soon as possible".
Underlying for emphasis
15. Perusal of above reveals that the Petitioner has to sign and complete off-boarding paperwork for getting its payment and in case of delay, the same could be postponed. The Respondents have also appended Off Boarding Paperwork Checklist issued in the name of the Petitioner but the Petitioner has neither filled the said form necessary for the issuance of payment nor any document whatsoever in this regard has been placed on record. The denial on part of the Petitioner can also be seen from the letters dated 03.03.2008 and 28.04.2008 written by him and whereafter he was also provided last opportunity to fulfil the same till 30.05.2008 but nothing fruitful was done by the Petitioner. So in view of the above it cannot be said that the Respondents have delayed the matter or wrongly determined the amount of Petitioner's claim rather it was the Petitioner who firstly refused to sign Off Boarding Paperwork (necessary for issuance of payment) at the relevant time and also refused to receive the cheque presented before the Court and he remained adamant to get those reliefs which, under the law, he is not entitled.
16. In view of above, the Petitioner has failed to make out his case. Consequently, this petition is dismissed. However, the Petitioner would be at liberty to receive the amount accumulated out of the "VSS" after signing off-boarding paperwork within reasonable time.