'MUHAMMAD AYUB KHAN (MEMBER)---Arguments have been heard and record perused.
2. Facts of the case, as appear from the record, are that the appellant joined the Respondent-Bank i,e,. Habib Bank Limited, as a Probationer Officer, on 24-5-1965, and, after serving at various stations, was lastly promoted as Vice-President and posted at Zonal Office, Nowshera, in October, 1997, when, in the meantime, respondent No,1, announced voluntary Golden Hand-Shake Scheme (hereinafter referred to as the Scheme), for its employees, (Copy of which is attached to the appeal as Annexure-A). The appellant, it appears, also filed his option under the Scheme vide which he opted for New Retirement Benefits. It is advisable to say few lines about the salient features of the Scheme dated 23-8-1997 (Copy Annexure-A, available at page-7 of the file) under the heading Normal Retirement Benefits. It applies to two categories of officers:
(A) EMPLOYEES WHO HAVE COMPLETED 25 YEARS OF SERVICE AND
(B) EMPLOYEES WHOSE SERVICE IS LESS THAN 25 YEARS."
' The appellant, however, falls under Category A(b) (New Retirement Benefits) having rendered service more than 25 years and as such under this category two sorts of benefits are available:- "(a) UNDER OLD RETIREMENT BENEFITS ' Provident Fund own and Bank's contribution, Gratuity and one (1) month's Basic Pay for each completed year of service.
(b) UNDER NEW RETIREMENT BENEFITS ' General Provident Fund Contribution and 50% Commutation of Gross Pension and payment of pension on monthly basis."
' Case of the appellant not falling under Category-B having more than 25 years' service, is not discussed under this category being not relevant/concerning to him.
3. A perusal of Option Form (Annexure-K) dated 15-9-1997, annexed to the rejoinder and available on the file, indicates that the appellant tendered his option: "for New Retirement Benefits as per photo copy of application attached" ' duly signed by the appellant and witnessed by a Staff Officer (P. No,285342). Similarly his option was forwarded to the Senior Vice-President and Divisional Head Personnel Division, Habib Bank Ltd., 8- Habib Bank Annexe, Hasrat Mohani Road, Karachi, with a copy to the Regional Chief Executive, Habib Bank Limited, RHO Peshawar Cantt: alongwith one of the Option Form by Mr. Iqbal Biland Khalil, SVP and Zonal Chief, Habib Bank Limited, on the subject "Voluntary Golden Hand-Shake Scheme" (Annexure-K) which reads :-- ' SK :2510 ' September 18, 1997 "Dear Sir, VOLUNTARY GOLDEN HAND-SHAKE SCHEME.
' As per instructions contained in HOK Circular No,STF:97/71, dated 23rd August, 1997 and STF/80/97 dated 5-9-1997, we are enclosing herewith option forms of 30 staff members of our Zone alongwith branchwise as well as consolidated statements for your kind perusal and further action please.
One Mr. Sayed Badshah V.P. Has, however, given a conditional option.
' Thanking you."
' Page-9 of the Scheme Contains "Other Terms and Conditions out of which conditions mentioned at Serial Nos, 6 and T being important and have bearing on the appeal are reproduced below for convenience sake:- "6. The option once exercised within the prescribed time limit cannot be withdrawn by any employee. All amounts outstanding against and due from the employees, who opt in favour of the scheme, will be liable to be adjusted against final settlement dues.
7. The Management shall have the sole discretion to decide upon the offer of voluntary retirement, either to accept or reject on a case to case basis."
4. In para.3 of the appeal the appellant contends that he opted for retirement under the Scheme subject to the grant of New retirement Benefits and lie was intimated that his request for retirement from service was accepted by the Bank and as such he shall be relieved from his assignment latest by 31st October, 1997. A statement showing the position of due and liabilities was also sent to him through proper channel, copy of which is Annexure-B, attached to the appeal.
5. The statement of dues and liabilities, annexed to Annexure-B, Page-11 and available at Page-12, indicates that the appellant felt aggrieved therefrom for the obvious reason that he opted for A(b)
'New Retirement Benefits" under the heading Normal Retirement Benefits whereas he was allowed the benefits under "Old Retirement Benefits" which he had not opted and hence the dispute between the appellant and the respondents and as such the appellant addressed a letter on 28- 10-1997 to the Head Office, Karachi, with reference to its letter No,Nil dated 23-10-1997 to the effect: "My option contained a condition to the effect that it is subject to acceptance of new retirement benefits. The attached statement schedule with the referred letter shows that only old retirement benefits will be given to me.I shall not use my option to retire till new retirement benefits are given to me. Please confirm the position about acceptance of my condition before I am asked to hand over charge. I shall continue to work under your kind supervision till such acceptance or attaining the legal age of superannuation."
' Copy of this letter was forwarded to the Zonal Chief, Habib Bank Limited, Zonal Office, Mardan, for information and with the request not to disburse any amount to him under the Old Retirement Benefits as he had not accepted the same.
6. It appears that the appellant having applied for Privilege Leave with effect from 1-11-1997 to 30-11- 1997, vide his application dated 3-11-1997, was also not granted to him. The appellant when informed about the acceptance of the Scheme under the Old Retirement Benefits, he withdrew his option under the Scheme by letter dated 6-11-1997, with copies to all concerned, and by another letter dated 11-11-1997 the appellant advised the Manager, Habib Bank Limited, Nowshera Cantt: to withdraw the deposited amount from his account due to violation of the condition of the Scheme announced by the Respondent Bank which deposit of the dues was thrusted upon him. In other words he did not accept the cheque for outstanding dues and we were not the least impressed by the arguments of the learned counsel for the Respondent Bank that the latter had accepted the amount due to him under the Scheme. There is nothing on the file to indicate willingness of the appellant regarding acceptance of the dues but, on the contrary, he wrote a letter the moment he came to know that the amount was credited to his Bank Account without his knowledge. It is a usual practice in the Banks that salaries and other amounts due to an officer individual are credited to his concerned account.
7. We have also gone through the impugned order which goes against the respondents vis-a-vis the appellant.
8. A perusal of the departmental appeal also indicates that there was no justification for refusal of acceptance of the appellant's option under the New Retirement Benefits. There is another aspect i,e,. That the appellant and the Respondents-Management had entered into a contract, of service employment by offer and acceptance when the appellant joined service under the Respondent- Bank as a Probationer Officer on 24-5-1965 which contract was subsequently to be replaced by a new offer under the Scheme; the appellant accepted the offer under the Scheme. The scrutiny of the Scheme, copy Annexure-A at Page-8, indicates that the respondents had called an option from the desirous persons either to opt the benefits under item A(a) i,e,. Old Retirement Benefits or A(b) i,e,. Under New Retirement Benefits under the heading Normal Retirement Benefits in respect of the employees who have completed 25 years of service. The option is wide enough and the incumbent had to opt either for retiring benefits falling under item (a) or under item (b) and in view of this situation/position the appellant tendered his option under New Retirement Benefits which is quite evident from the Option Form (Annexure-K), as discussed above, vide which he opted for the retiring benefits under the New Retirement Benefits, and to this effect the competent Authority also specifically mentioned that the appellant, namely, Syed Badshah, V.P. Has, however, given a conditional option. There was no need of insertion of any condition of the obvious reason that two benefits are specifically mentioned at two different places i,e,. One at (a) and the other at (b) which leaves no ambiguity for prefixing or suffixing any word, inclusive of condition. It appears that the appellant was wise enough to guard against any future mischief to be played by someone. The intention of the Respondent-Bank does not appear to be genuine and thanks God that the appellant proved to be wise enough to have sensed the hidden havoc being visualized in use of the two benefits appearing at (a) and (b) under A above in respect of the employees who have completed 25 years of service. Laying of such traps falls under, deception and deriving under advantage/benefit from the affected person. In this respect the conduct of the Respondent Bank falls under section 16 of the Contract Act, 1872, and to be more specific the provisions of subsections (1) and (2) (a) of the said section can be attracted to the facts of the instant dispute under the Scheme. Similarly the Respondent-Bank also appears to have practised a "fraud" as defined in section 17 of the Contract Act, 1872. For the sake of facility extracts from sections 16 and 17 are reproduced below: "16(1). A contract is said to be induced by undue influence where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other, and uses that position to obtain an unfair advantage over the other.
(2)(a) Where he holds a real or apparent authority over the other, or where stands in a fiduciary relation to the other;
17. "Fraud" means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:
(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
(2) the active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of performing it;
(4) Any other act fitted to deceive;
(5) any such act or omission as the law specially declares to be fraudulent."
9. One fails to understand as to why the Respondent-Bank having offered the retirement benefits under the old as well as the new rules are denying when the offer was accepted by the appellant.
There can be no other reason except playing of deception/fraud upon the appellant, who happens to be a vigilant person and despite being subordinate took a legal cudgel against the respondents.
It appears that the Respondent Bank was acting upon a principle:--{{URDU TEXT}} Now it cannot be allowed to back out of its own offer which was readily accepted by the appellant and the subsequent offer and acceptance can be construed to have repudiated the earlier contract of employment under section 62 of the Contract Act, 1872, which reads:- "(62) If the parties to a contract agree to substitute a new contract for it, or to rescind or alter it, the original contract need not be performed."
PLEADINGS OF THE PARTIES:---
10. A perusal of the pleadings of the parties consisting of the appeal and the parawise comments rendered thereto by the respondents indicates that the first out-weighs the latter. The parawise comments out-wieghs latter and according to the rule 2, Order VI, C.P.C., 1908:--- "Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading reliesfor his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall, when necessary, be divided into paragraphs, numbered consecutively."
11. The parawise comments, strictly speaking, do not conform to rule 2 as reproduced above. It contains insertion of unwanted and redundant matters having no concern whatsoever with the disposal of this appeal.
12. The learned counsel for the respondents raised an objection, during the course of the arguments, that the appellant having not opted for the previous Revised Pay Scale of 1977, could not legally challenge the Scheme, which argument is repelled for the reason that the Scheme itself is clear about it. It applies to all categories of employees (A) who had completed 25 years of service and (B) Less service than 25 years under the. Bank. There was no condition precedent for option of Pay Scales.
13. Pursuant to the aforesaid discussion we are inclined to accept the appeal with cost and direct the Respondent-Bank that the appellant shall be allowed the New Retirement Benefits under the Scheme under head A(b) and its payment be made to him within a period of two months failing which the appellant shall be deemed to be in the service of the Respondent-Bank and in that event would retire on attaining the age of superannuation as required under the Bank Rules. Copies of the judgment shall be supplied to all the concerned. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.