' This is a civil revision petition filed under section 115 of the Code of Civil Procedure, 1908, (hereinafter referred to as the C.P.C.) and is directed against the judgment, dated 9th February, 1993 passed by 1st Additional District Judge, Karachi (West) in Civil Appeal No,70 of 1990 through which the judgment/decree, dated 26th September, 1990, passed by the turd Senior Civil Judge, Karachi (West) in Suit No,1659 of 1988 was set aside.
2. Applicant was the plaintiff who filed a suit for recovery of Rs,21,821.66 as balance amount of gratuity against the three respondents. The case of the applicant/plaintiff in brief is that on 28th August, 1964, he was employed as an officer in the Sindh Alkalis Limited (hereinafter referred to as S'.A.L.) where after his services were transferred on 4th June. 1977 to the defendant/respondent No,2, namely, M/s. Pakistan P.V.C. Limited, (hereinafter referred to as P.V.C.). On 14th June, 1980, the plaintiff's services were further transferred from P.V.C. To the defendant No,1/respondent No,1, namely, M/s. Federal Chemical and Ceramics Corporation Ltd., (hereinafter referred to as F.C.C.C.).
He was retired on 1-7-1982 from F.C.C.C. And was paid all his dues except a portion of gratuity, which is the bone of contention in the present proceedings. Applicant/plaintiff has prayed for the following relief(s) in his.
"(a) That the plaintiff is entitled to Rs,21,821.66 towards payment of gratuity amount which has been withheld by the defendant No,1 with interest of 15% till realisation of amount.
(b) That the resolution dated 12-9-1972 (Annexure-B) passed by the defendant No,3, Sindh Alkalis Limited is a valid document and the benefits granted by it cannot be taken away arbitrarily without the consent of the person affected.
(c)
3. I have heard Mr. Muneeb Ahmed Khan, Advocate, for the applicant. I have also heard M/s. Khwaja Mansoor and Hassan Jaffery, Advocate, for the respondents and have gone through the evidence of the parties brought on record during the trial Court. It was contended by Mr. Muneeb Ahmed Khan, Advocate, that the applicant/plaintiff was entitled for the calculation of gratuity amount on the basis of gross salaries as decided by the management of S.A.L. On 12-9-1972, vide Exh.4-A. It was further argued that the respondents/defendants were not entitled in' law to withdraw any right, privilege or benefit extended to the plaintiff/employee to his disadvantage. He has placed reliance on the following cases:-
(i) Habibullah v. Government of the Punjab and 5 others (PLD 1980 Lahore 337).
(ii) Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi (PLD 1969 Supreme Court 407).
(iii) Parvez Aslam Mian Muhammad Aslam v. Synthetic Chemical Co. Ltd., Karachi and another (PLD 1980 Karachi 401).
4. The case of the respondents are that this being a revision filed under section 115, C.P.C., the scope of interference is very limited. It was vehemently argued by Mr. Hassan Jaffery that the findings of the 1st Appellate Court being a question of fact, which falls within the jurisdiction of the 1st Appellate Court could not be challenged in. This proceedings. He has placed reliance on the cases: Taj Muhammad v. Mst. Zaitooney and another (PLD 1995 Peshawar 135) and Muhammad Bux v.
Muhammad Ali (1984 SCMR 504). In this case, there is no concurrent finding of the subordinate Courts. There being two conflicting views in the field; one by the trial Court and other by the Appellate Court, it is the duty of this Court to examine as to which view is legally and factually correct. In order to reach a just and fair conclusion, in my considered view, reference to the evidence of the parties would be necessary and relevant. I am fortified in my view by a decision of the Supreme Court in Kanwal Nain and 3 others v. Fateh Khan and others (PLO 1983 SC 53) and Roazi Khan and others v. Nasir and others (1997 SCMR 1849). In the last mentioned case, it was held by the Hon'ble Supreme Court as follows:-- ' Another aspect which needs to be mentioned here relates to scope of revisional jurisdiction exercisable by the High Court under section 115, C.P.C. In the instant case there is concurrent finding of facts of two Courts below wherein all aspects have been appropriately dealt with. Evidently the scope of revisional jurisdiction is curative and narrower, which can be appropriately invoked where subordinate forums have committed jurisdictional error or misread the evidence or ignored the material aspects affecting very root of the case , or suggest perversity
5. The case of respondent No,1/defendant No,1 is that the applicant/plaintiff was entitled for gratuity on the basis of basic salary as he himself has opted for such method of calculation. He has relied upon the letter dated 13-10-1975 (Exh.4-A/1) and the letter of applicant/ plaintiff dated 7-2-1978 (as Exh.4-C). It was further contended by Mr. Khwaja Mansoor that by virtue of resolution dated 15-2- 1981 (EXh.5-A), the applicant/plaintiff was entitled for the payment of gratuity on the basis of basic salary. It was also argued that the employers were competent to change the method of calculating gratuity as it is not a vested right of the plaintiff and secondly the applicant/plaintiff has himself opted that the gratuity is to be calculated on the basis of the Rules of the parent organisation namely S.A.L. Which was to be settled from time to time. Mr. Khwaja Mansoor has referred to the cases of Dr. Miss I. Ali Muhammad v. Syed Zakaullah and another (1982 CLC 1895) and Shaikh Muhammad Umer v. Zakaria Adamjee Charitable Corporation and another (1988 MLD 1131). He has, also referred to the definition of "vested right" as given in the Black's Law Dictionary, (VI Edition).
6. There are two resolutions in the field as well as a couple of letters upon which both the parties have relied upon and based their claim as to how the amount of gratuity was to be calculated. The case of the plaintiff is that he was entitled for the payment of gratuity on the basis of gross salary while. The case of defendants/respondents was that it is to be calculated on the basis of the basic salary only and that the amount of Rs,70,498 paid to the applicant/plaintiff by the respondent No,1/ F.C.C.C. Was the full and final payment of the gratuity amount. The applicant/plaintiff has produced a circular dated 12-9-1972, as Exh.4-A which is a copy of resolution passed by the Managing Director of S.A.L. On 5th September, 1972. In that it was resolved that the resolution No,4 be partially modified and that all the officers shall be paid gratuity equal to 30 days salary last drawn for every year of completed service. It was further resolved that the gratuity was to be paid in all cases accept in the case of dismissal for misconduct. Subsequently, on 30-10-1975, a letter was issued by the Administrative Officer, S.A.L. To the plaintiff/applicant (Exh.4-A/1) disclosing that in order to maintain uniformity of pay scales/grades, emoluments and other benefits, the gratuity was to .Be calculated "at the rate and according to rules in force from time to time". Again on 7-2- 1978 vide Exh.4-C, the Managing Director of Respondent No,2/P.V.C. Invited options from the officers on the method of calculating the amount of gratuity; three options were offered, out of which one was in respect of the application of the rules of the parent organization. This third option was accepted by the applicant/ plaintiff vide Exh.4-D, dated 11-2-1978, through which his gratuity was to be determined on the basis of the rules of his parent organization, namely, S.A.L. It is the case of the applicant/plaintiff that the matter of payment of gratuity is to be determined according to the rules of S.A.L. Prevailing on 11-2-1978; the day he opted for such option. It is to be noted that the respondent No,1/F.C.C.C. Paid gratuity according to the rules of S.A.L. Prevailing on the date of retirement of the applicant/plaintiff.
7. Mr. Muneeb Ahmed has also referred to Exh.4-G, which is a letter dated 8th June, 1982 written by respondent No,2/P.V.C. And addressed to the General Manager, Finance of the respondent No,1/F.C.C.C. Through this letter, a total amount of Rs,49,800 was forwarded to F.C.C.C. Which was the amount of gratuity lying with S.A.L. And P.V.C. This document shows that both S.A.L. And P.V.C.
Have calculated gratuity on the gross salary i,e, basic salary plus house rent plus conveyance allowance. This document is not disputed by any of the respondents, however, it was argued by Mr. Khwaja Mansoor that on the basis of Exh.5-A this practice was changed and the applicant/plaintiff was entitled for the gratuity on the basis of basic salary, which was accordingly paid. This bring us to the consideration of Exh.5-A upon which reliance has been placed by the respondents/ defendants. It reads as follows:-- ' After discussion on the gratuity matter the following decisions were taken:- 'Those officers who have completed 5 years service on 6-12-1979 be allowed gratuity as per old practice, i,e, Basic Salary plus Conveyance plus House Rent for the period of service up to the said date and for the remaining period of their service they will be allowed gratuity on the basis of Basic Salary only'.
' The persons transferred to S.A.L. After 6-12-1979 from F.C.C.C.L./ F.C.C.C.L. Units/ Corporations/ Autonomous Bodies whose gratuity account has been or is transferred to the Company will be entitled for gratuity of Basic Salary only after having completed 5 years service inclusive of services rendered in the above mentioned organizations."
8. The resolution (Exh.5-A) was passed on 15-2-1981 when applicant/plaintiff was admittedly serving in F.C.C.C./respondent No,1 claims that the gratuity was to be calculated on the basis of Exh.5-A which plea appears to be incorrect. First of all, the said resolution Exh.5-A did not cover the case of those employees who have been transferred from S.A.L. To other Companies/Units/ Corporations. The first condition as contained in the said resolution Exh.5-A covers the case of those officers who have completed five years of service on 6-12-1979 in S.A.L. The other condition pertains to those employees who have been transferred to S.A.L. From other Units/Corporations.
Both these conditions do not attract the applicant/ plaintiff. According to the first method such officers who have completed 5 years service on 6-12-1979 were allowed gratuity as per old practice i,e, Basic Salary plus Conveyance Allowance plus House Rent and for the remaining period the said officers were allowed gratuity on the basis of Basic Salary. But this condition could not be imposed on the applicant/plaintiff as on the day when the offer was made by the F.C.C.C. To the applicant/plaintiff and which was accepted by him, it was Exh.4-D which was in vogue.
Subsequently, he was transferred from S.A.L. Therefore, subsequent resolution could not be stretched and extended in order to deprive the applicant/plaintiff of the benefits which were mutually agreed. The principle of novation of contract as pleaded by Mr. Khwaja Mansoor is not attracted in the circumstances of the case. Thus, the ratio laid down in the cases Dr. Miss I. Ali Muhammad (1982 CLC 1895) and Shaikh Muhammad Umer (1988 MLD 1131) is of no help to the case of respondent No,1/F.C.C.C. In order to prove that novation of contract had taken place, it is essential for a party adopting such plea to prove with sufficient evidence that a right under the original contract was extinguished and new rights were created through new contract and that the substituted contract is a valid and enforceable contract to make it effective as novation. I am fortified in my view by the two, decisions of this Court in Mst. Khatoon Begum v. Mst. Barkat-un-Nisa Begum and 6 others (PLD 1987 Karachi 132) and Messrs. Ismail Brothers Limited, Karachi v. Messrs S.M. Fazail & Co., Karachi (PLD 1958 Karachi 158). In view of the evidence brought on record during trial by the parties, it cannot be said that there was a novation of contract between the parties as no evidence was produced by the respondent No,1/F.C.C.C. Upon whom the burden lies to prove this plea.
9. Mr. Muneeb Ahmed Khan has referred to the case of Habibullah (supra) where a learned Single Judge of Lahore High Court after making reference to a decision of Supreme Court of Pakistan in E.A. Evans v. Muhammad Ashraf (PLD 1964 SC 536) held that "change of terms and conditions of service to the disadvantage of employees, of Government or statutory corporation, already in employment cannot be permitted through a mutual agreement, as it would be against public policy. The employer being placed in a position of authority and strength can always coerce employees to waive legal protection and accept contractual terms at the pain of loosing his job." In the second cited case of Muhammad Himayatullah Farukhi (PLD 1969 SC 407 at 413) it was held, inter alia, by a Full Bench of Hon'ble Supreme Court that the terms and conditions of service of a person in the service of Pakistan as regards his remuneration and age, could not be varied to his disadvantage, in view of Article 178 of the Constitution, 1962. The case of Pervez Aslam Mian Muhammad Aslam (PLD 1980 Karachi 401) is not relevant in the circumstances of the present case.
At this stage, I would also like to mention a decision of Division Bench of this Court in Messrs. A.E.G. Pakistan (Pvt.) Limited v. Sindh Labour Appellate Tribunal Karachi and others (1989 PLC 525) where a Constitutional Petition was filed under Article .199 of the Constitution, 1973, challenging the decision of Sindh Labour Appellate Tribunal, Karachi. One of the contention raised before the Division Bench of this Court was that the petitioner could not retire the respondent No,2 upon reaching the age of 60 years as the said condition was neither available in the service regulations nor contained in his appointment letter. The view of Appellate Tribunal was upheld and the writ was refused with the following observations:--
10. As regards the last contention that the absence of any provision in law or rules fixing the age of retirement the employers will be free to determine the age of retirement, there can be no dispute about this preposition but the employer has to intimate the employee his retiring age at the time of employment. Any regulation that is framed fixing the age of retirement after the employment would not be applicable to those who have been employed prior to framing of such rules or regulations. Normally rules or regulations affecting the substantive rights of the workers when framed by the employers can only be applied prospectively unless accepted by the workers. The petitioners on their own 'showing have on their own made the regulation fixing the age of retirement applicable with effect from 1st January, 1979 as stated above and was not introduced by way of any settlement. Under these circumstances it was not possible for the petitioners to have applied that ride to retired Sanober Khan on the basis of a rule not applicable to his case and beyond the scope of terms and conditions of his service...."
(Emphasis added).
10. It has been proved successfully by the plaintiff that the offer of respondent No,1/F.C.C.C.
Extended vide Exh.4-C, dated 7-2-1978 was duly accepted by the applicant/ plaintiff vide Exh.4-D, dated 11-2-1978 and at that time it was resolution dated 12-9-1972 (Exh.4-A) which was in operation. Such offer and its acceptance had culminated into a valid and binding contract.
Subsequently, whatever change occurred in S.A.L the plaintiff/applicant never accepted the same.
The employer cannot enforce such terms upon an employee to which he has never consented and which is disadvantageous to the terms and conditions of such employee. It is well-established principle of Industrial Law that once an amenity or any other relief is given to the ' workers, it cannot be withdrawn arbitrarily from them except by mutual agreement of employers and workers. In this background, I am inclined to hold that it is Exh.4-A, dated 12-9-1972 upon which the applicant (plaintiff) was entitled to get the benefit of the gratuity.
11. As a result of the above discussion, this revision application is accepted and the impugned judgment dated 9-2-1993 passed by learned 1st Additional District Judge, Karachi (West) in Civil Appeal No, 70 of 1990 is set aside and the judgment/decree, dated 26-9-1990 passed by IIIrd Senior Civil Judge, Karachi (West) in Suit No,1659 of 1998 is restored.