' MUNIR A. SHEIKH, J.---This appeal by leave of the Court is directed against the judgment, dated 31- 7-1998 of a Division Bench of the Lahore High Court, Lahore whereby I.C.A. Filed by the appellants against the judgment, dated 12-7-1982 of the learned Single Judge of the said Court, dismissing their Constitutional Petition No,10916 of 1980, has been dismissed.
2. The facts of the case briefly stated are that the appellants who were employees of National Bank of Pakistan in the matter of Provident Fund, etc., were governed by the National Bank of Pakistan Employees Provident, Pension and Guarantee Fund, Rules framed under Bye-Law No,8(a)(v) with the approval of the central Government. According to this Bye-Law, the bank was to contribute towards the said fund which was credited to the account of the said employees and this fund was to be administrated and maintained by a Committee constituted under the said rules. The employees were entitled to receive the said amount in the said fund alongwith interest at the prescribed rates. It may also be mentioned here that the service of the employees of National Bank of Pakistan was pensionable.
3. On 30-11-1977, a decision was taken by the concerned authorities for re-structuring of pensionary retirement benefits of Officers/Executives of the National Bank of Pakistan and Financial Institutions which was embodied in Circular No,77(9)-IFXI/77, paragraphs 1, 2 and 9 of which are relevant for disposal of this appeal, for the decision thereof revolves around the construction as to its applicability and scope to the employees of the financial institutions which are reproduced below in extenso for facility of ready reference:- ' "I am directed to say that with a view to providing better social security, it has been decided to introduce pensions and retirement benefits for the officers/executives of the banks including the State Bank of Pakistan and financial institutions as have been introduced by the Federal Government for civil servants. The pension scheme also includes the benefit of family pension to the officers/executive's wife and or to his children in the case of demise of the pensioner. The existing schemes of pension in the case of the National Bank of Pakistan, Contributory Provident Fund and Gratuity shall be discontinued.
(2) The previous continuous service of officer/executive shall count as qualifying service for pension. The contribution made by the bank and financial institution towards the Contributory.
Provident Fund shall be withdrawn as that service shall now count for the purpose of pension. The contribution of the officers/executives plus interest thereon standing in their respective Provident Fund Account shall be transferred and credit to the Provident Fund Accounts to be established under the new Provident Fund Scheme.
(9) At page 189 of p.b. An officer who was in non-pensionable service on 1st May, 1977 and who was entitled to the benefits of Contributory Provident Fund, shall, unless the amount of the Contributory Provident Fund has been paid to be allowed to opt for the new scheme of pension, gratuity and provident fund, in lieu of the existing retirement benefits admissible to him. This option shall be exercised in writing and communicated to the competent authority within 6 months from the date of the issue of these orders. These officers who do not exercise and communicate their options for the pensionary benefits sanctioned in this letter within the prescribed time limit, shall not be entitled to the benefits thereof and shall continue on their existing terms.
(10)Since the rates of pension and gratuity given above have been fixed by the Pay Commission on the side of the Federal Government, the existing provisions and any changes or revision in the rates of scales of pension or gratuity that may hereafter be made by the Federal Government shall also apply to the officers/executives of banks including the State Bank of Pakistan and financial institutions."
4. It appears that like others, an option was also sought from .The employees of the National Bank whether they would like to be governed under the old rules or this decision and it appears that they opted for the said policy decision as a consequence of which the contribution made by the bank towards the provident fund of its employees was treated to have been surrendered in its favour, as such, they were held to be not entitled to the said amount. Aggrieved by the act of the respondent- bank of withholding the payment of that part of the provident fund which was contributed by it, the appellants approached the High Court through Constitutional Petition No,10916 of 1980 which was dismissed through judgment, dated 12-7-1982 by the learned Single Judge of the said Court against which ICA filed by them has also been dismissed through the impugned judgment, dated 31-7-1998 against which this appeal by leave is directed.
5. The main burden of arguments presented by Rana Muhammad Sarwar, learned counsel for the appellants in support of this appeal was that from the policy decision as embodied in the said circular if read as a whole and in particular paragraphs Nos.1, 2 and 9 which have been reproduced above, it is abundantly clear that paragraph 2 of the said circular under which option was required to be given was applicable only to those employees of financial institutions whose service under the previous arrangements or the rules was not pensionable. They were required if they wanted to be governed by the new policy decision which had the benefit of converting their service as pensionable to surrender the part of the amount in the provident fund contributed by the bank or the financial institutions and not to those whose service was already pensionable, for in such a case, there in no question of surrendering the part of the provident fund contributed by the bank.
6. The argument has considerable force. It is clear from a bare reading of the said circular as a whole that the intention behind taking the same was to provide better social security to the employees of the financial institutions and it was made clear in the later part of paragraph 1 that so far as the employees of the National Bank were concerned, the existing schemes of pension, contributory fund and gratuity shall be discontinued. It is, therefore, clear from this part of the said paragraph that the existing schemes of pension, contributory fund and gratuity in respect of the employees of National Bank were discontinued by their own operation, as such, it was not dependent upon the exercise of option by them in their favour. The argument of learned counsel for the appellant that such employees as a matter of fact were left with no choice but to accept that from 30-11-1977, their previous scheme as to gratuity had become inoperative and they were automatically governed by the said scheme embodied in the circular, has force as a consequence of which they could not be deprived of the right to receive the amount available in their provident fund account on 30-11-1977 alongwith interest up to 'the date of payment whether it was contributed by them or the bank.
7. The legal consequence of latter part of paragraph 1 that the old scheme of pension, provident fund, etc., previously applicable to employees of National Bank of Pakistan became operative from 30-11-1977 was the closure of the provident fund account within the contemplation of rule 23 of the relevant rules which reads as under:-- "23. The administrators shall have power to close the Fund at any time if they consider such a course advisable or necessary, in which event the Fund shall be divided amongst the members by payment to each member of such sum as may be standing to his credit at the time of such closure."
8. This being the position, the employees of the National Bank were entitled to receive whole of the amount accumulated in their account' of provident fund (total amount of contribution made by them and the bank alongwith interest up to the date of payment), therefore, the act of withholding the payment of that part of the amount available in the said account which was contributed by the bank was illegal and without lawful authority and could not be sustained.
9. The argument of learned counsel for the respondent-bank that as per paragraph 2 of the policy decision reproduced above that an option was to be given by all the employees of the financial institutions whether they would like to opt for the new scheme or the previous one and in case the option was given in favour of the said policy decision by operation of the said paragraph, they had to surrender the amount in the provident fund contributed by the National Bank has, no substance.
10. We have also observed that the judgments of the High Court in the Constitutional petition and ICA proceeded mainly upon the assumption that since option under paragraph 2 of the decision had been given, therefore, the appellants had to surrender the amount of contribution made by the bank. It has altogether been ignored that this paragraph is not independent but it is to be read in conjunction with the entire policy decision embodied in the said circular and in particular paragraph-9 thereof. In paragraph-9, it has been clearly stated that option was to be given by those employees whose service was not pensionable to convert the same as pensionable in lieu of giving up of their right to receive that part of the provident fund contributed by the financial institutions as such, paragraph-2 was applicable only to such employees.
11. Learned counsel for the respondents when faced with this difficulty tried to overcome it by arguing that the service of the employee of the National Bank though was pensionable but it was less favourable in that upper limit of amount of pension had been fixed and family pension was not available, therefore, in respect of these two matters, the policy decision was more favourable as compared to the previous scheme, as such, they also had to exercise option to get these benefits on surrendering the, part of the provident fund contributed by the bank in the same manner as was required to be exercised by those whose service was not pensionable.
12. The argument though appears to be ingenuous but found to be not tenable on close scrutiny. As has already been observed in the concluding portion of paragraph-1, it was by operation of the new scheme itself that previous scheme of pension and provident fund, etc., was made inoperative qua the; employees of National Bank on the assumption that the said decision as to exercise of option and surrender of amount of provident fund was not applicable to them as their service was already pensionable. If that was the intention, as argued, it could have been expressed in clear terms in the decision itself. The same having not been done, therefore, as per terms of the circular, this argument cannot be raised.
13. Before parting with the judgment, it may be observed that according to the well-established rules, such instruments are to be constructed keeping in view the real intention-behind them for taking such decision which should be explored by scrutiny of the attending circumstances and in particular the instrument as a whole. It is clear from the circular that the decision was taken to provide better social security to the employees of the financial institution's and in the case of employees of National Bank of Pakistan whose service was already pensionable, they were given benefit to the same as per its own force. There is no possibility of even entertainment of any doubt as to its applicability to them qua the entitlement to receive the entire amount accumulated in their provident fund account on 30-11-1977 at the time of closure of the said amount whether contributed by them or the bank with interest up to the date of payment to which no legal exception can be taken.
14. The next question which arose during the hearing of arguments was whether benefit of this interpretation as to construction of the said policy decision should be restricted to the appellants or the same should go to all the employees as a class who were deprived of their right to get the amount in the provident fund as available on 30-11-1977 alongwith interest till the date of payment which engaged our serious consideration on which we heard learned counsel for the respondent- bank who opposed the extension of benefit thereof to other employees.
15. In the case of Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others (1996 SCM R 1185), in such circumstances, benefit was extended to all the persons falling in the same category, therefore, in order to do complete justice, we hereby hold that all those employees of the National Bank of Pakistan covered by the circular are entitled to receive whole of the amount available in the provident fund account as on 30-11-1977 contributed by them and the bank.
16. For the foregoing reasons, this appeal is accepted, judgment, dated 31-7-1998 passed in ICA by the Division of the High Court and, dated 12-7-1982 of the learned Single Judge of the said Court are hereby set aside, the appellants and the other employees of the bank as observed above shall be paid the amount available in their provident fund account inclusive of the contribution made by the bank as on 30-11-1977 alongwith interest up to the date of payment.
17. No order as to costs.