Right to Receive Pension by a Government Servant | Pension Benefits of Employee | 2014 SCMR 135 | Complete Judgement
سرکاری ملازم کو پنشن وصول کرنے کا حق
Right to Receive Pension by a Government Servant | Pension Benefits of Employee | 2014 SCMR 135 | Complete Judgement
The right to receive pension by a Government servant is property so as to attract Articles 23 and 24(1) of the Constitution and any illegal denial to a Government servant to receive the same would affect his fundamental right granted under the said provisions of the Constitution.
سرکاری ملازم کے ذریعہ پنشن وصول کرنے کا حق جائیداد ہے تاکہ آئین کے آرٹیکل 23 اور 24 (1) کو راغب کیا جاسکے اور سرکاری ملازم کو کسی بھی طرح سے انکار کرنے سے انکار اس آئین کی مذکورہ دفعات کے تحت اس کے بنیادی حق کو متاثر کرے گا۔ .
Ms. SALMA MOOSAJEE VS FEDERATION OF PAKISTAN, 2014 SCMR-SUPREME-COURT 135 (2014)
Aug. 10, 2014 SUPREME COURT 2014 SCMR 1352014 SCMR-SUPREME-COURT 135
Ms. SALMA MOOSAJEE VS FEDERATION OF PAKISTAN
2014 S C M R 135
[Supreme Court of Pakistan]
Present: Anwar Zaheer Jamali, Sarmad Jalal Osmany and Muhammad Ather Saeed, JJ
Ms. SALMA MOOSAJEE and another—Appellants
FEDERATION OF PAKISTAN and others— Respondentss
Civil Appeals Nos. 245-Kand246-Kof2009, decided on11th October, 2013.
(Against the judgment dated 16-4-2009 of the High Court of Sindh, Karachi passed in C.P. No.D-1841 of 2008.)
(a) Constitution of Pakistan—
—-Art. 185(3)—Civil service—Leave to appeal was granted by Supreme Court to consider whether the claim of two petitioners on merit had been rightly rejected, despite effective applicability of notification dated 9-8-2002 from 1-7-2002, when admittedly petitioners were under the employment of respondents.
(b) Constitution of Pakistan—
—-Art. 185—Civil service—Optional Retirement Plan—Past and closed transaction—Appellants got retirement under Optional Retirement Plan but subsequently claimed enhancement in salary, which was declinedbyHighCourt— Validity— Amount of payment had to be made on the basis of current basic pay— RetirementPlanwasdated 26-6-2002 and appellants had voluntarily and without any coercion filed option forms on 1-8-2002, therefore, their current salary was their salary as on 26-6-2002 and not the salary enhanced—Payment made to appellants under Optional Retirement Plan, which was much more than regular pensionary benefits became past and closed transaction—Appellants could not benefit from any enhancement made after their retirement despite it being effective with retrospective effect—Judgment passed by High Court which did not suffer from any illegality was unexceptionableandnointerferencewascalledforbySupreme Court—Appeal was dismissed.
Gulrez Abdul Latif Butt v. Federation of Pakistan 2011 PLC (C.S.) 1422; Abdul Qadir Ismail v. State Bank of Pakistan 2001 PLC (C.S.) 810; PIA v. Tanweer-ur-Rehman PLD 2010 SC 676; Pakistan Red Crescent Society v. Syed Nazeer Gilani PLD 2005 SC 806; State Bank of Pakistan v. Khyber Zaman 2004 SCMR 1426 and I.A. Sherwani v. Federation of Pakistan 1991 SCMR 1041 ref.
Wali-ur-Rehman v. State Life Insurance Corporation 2006 SCMR 1079 fol.
SyedSafdarHussain,Advocate Supreme Court and Mazhar AliB.Chohan,Advocate-on-RecordforAppellants(inC.A.245-K of 2009).
Abdul Latif Ansari, Advocate Supreme Court and Mazhar Ali B. Chohan, Advocate-on-Record for Appellants (in C.A. 246-L of 2009).
Respondent No.1, ex parte.
Nadeem Azhar Siddiqui, Advocate Supreme Court and K.A. Wahab, Advocate-on-Record for Respondents Nos.2 and 3.
Date of hearing: 5th April, 2013.
MUHAMMAD ATHER SAEED, J.—These civil petitions for leave to appeal have been filed against the common judgment of the learnedHighCourtofSindh,Karachidated16-4-2009inC.P. No.D-1841 of 2008 whereby the learned Sindh High Court had dismissed the petition filed by the present appellants, in limine.
2.Brief facts of the case are that both the petitioners were employees of respondent No.2 and the respondent had offered optional retirementplanon26-7-2002 for which the petitioners had opted which options were accepted and resultantly the petitioner in C.A. No.245-K/2009 was retired on 9-8-2002 and the other petitioner was retired on 5-8-2002 respectively. After the retirement of the petitioners, 134th Board meeting of the respondent No.2 was held on 22-8-2002 whereby the salary structure of the employees of the respondent company was enhanced with effect from 1st July, 2002 and when the petitioners came to know about this meeting, they through separate applications applied to the respondents for grant of difference of salary on account of revised salary structure finalized in the afore mentioned meeting of the Board of Management from 1st July, 2002 and the recalculation of their golden handshake benefits in the light of the revised salary. These applications were rejected by the respondents vide separate letters. Being aggrieved by such rejection the petitioners had filed petitions before the learned Sindh High Court which were dismissed by the impugned judgment hence these petitions.
3.Both these petitioners were granted leave to appeal vide order of this Court dated 4-12-2009 which reads as under:–
“ANWAR ZAHEER JAMALI, J.—In these two petitions, arising out of common judgment of the High Court of Sindh dated 16-4-2009, leave is granted to examine whether the claim of the two petitioners on merit has been rightly rejected, despite effectiveapplicability of the Notification dated 9-8-2002 from 1-7-2002, when admittedly the petitioners were under the employment of respondents.
Grant of leave in C.P. No.581-K of 2009 is, however, subject to limitation, which will be examined and decided at the time of hearing of these appeals.
Appeal, paper books may be prepared on the basis of available record. Parties are, however, at liberty to file additional documents, if any, within two months.”
4.We have heard Syed Safdar Hussain, learned Advocate Supreme Court for the appellant in Civil Appeal No.245-K/2009 and Mr. Ansari Abdul Latif, learned Advocate Supreme Court for the appellant in Civil Appeal No.246-K/2909 and Mr. Nadeem Azhar Siddiqui, learned Advocate Supreme Court for the respondent.
5.The main point argued by the learned counsel for the appellant is that although they were not in service of the respondent on 22-8-2002 when the 134th board meeting was held but they were in service of the respondent on 1st July, 2002 from which date the enhancement of salaries as decided in 134th Board meeting dated 22-8-2002 was to be made applicable and therefore despite the fact that they had retired before the date on which this enhancement was made but since they were serving the respondent for the period from which the salary increase was to be effected, they were entitled to the salary increase from 1st July, 2002 to the date of their retirement and were also entitled to get the golden handshake benefits recalculated on the basis of the increased salary as fictionally speaking that was the last salary they were drawing at the time of their retirement. Mr. Ansari Abdul Latif, the learned Advocate Supreme Court for appellant in C.A. No.246-K of 2009 submitted further that the payment of golden handshake was made to his client on 18th September, 2002 i.e. 27 days after the new salary increase came into effect therefore the salary increase should have been given to him from 1st July and his golden handshake dues should have been computed on that basis. In support of their arguments, the learned counsel relied on the judgment of the Sindh High Court in the case of Gulrez Abdul Latif Butt v. Federation of Pakistan reported in 2011 PLC (C.S.) 1422 whereby the Sindh High Court had decided the case of an employee of the present respondent who was retired under the same scheme and held that he was entitled to all the balance amount and other benefits as a legal right which was created in his favour after 134th meeting of the respondent No.2. They have also relied on the judgment in the case of Abdul Qadir Ismail v. State Bank of Pakistan reported in 2001 PLC (C.S.) 810. They therefore prayed that the judgment of the learned Sindh High Court be set aside and the respondent may be directed to pay them the salary as per the decision of the 134th meeting of the respondents, from 1st July, 2002 and recalculate the golden handshake benefits on the basis of such salary.
6.The learned Advocate Supreme Court for the respondents strongly opposed the arguments of the learned Advocate Supreme Court for the appellants and supported the judgment of the learned Sindh High Court to the extent of its decision on merits. He however argued that the respondent company being a limited company was not amenable to the jurisdiction of the Sindh High Court as the respondent company did not have statutory rules and according to him as held by this court in a number of judgments that where the employers are not governed by statutory rules then the contractual obligation arising out of such non-statutory institution are not enforceable in the constitutional jurisdiction of the High Court under Article 199 of the Constitution and the rule of master and servant will be applicable to such institutions. On this point the learned Advocate Supreme Court relied on the judgment in the case of PIA v. Tanweer-ur -Rehman reported in PLD 2010 SC 676 and Pakistan Red Crescent Society v. Syed Nazeer Gilani reported in PLD 2005 SC 806. He however conceded that he had not filed any Civil Petition for leave to Appeal against the decision of the learned Sindh High Court by which it was held that the petitions were maintainable. He however argued that this Court while examining the impugned judgment during the proceeding on a petition filed before it, has got inherent powers to remedy any illegality committed by the learned High Court although the same may not have been taken as a ground before it. Coming to the merits of the case the learned Advocate Supreme Court submitted that the petitioners had retired on 5th August, 2002 and 9th August, 2002 respectively and the 134th Board meeting had been held on 22nd August, 2002 and therefore the decision of this Board meeting was not applicable to them. He read out the contents of the minutes of the meeting and pointed out that it has not been provided in this meeting that this increase of salary will also be applicable to those employees who retired after 1st July, 2002 but before this meeting. He further pointed out that the petitioners had given an undertaking that full and final settlement of their dues offered to them under the optional retirement was acceptable to them on the basis of the statement of accounts. His objection was that the said option form and the said undertaking had been given voluntarily and not under any coercion or pressure. He therefore submitted that after the submission of such undertaking by the appellants and acceptance of the payment made to them, the matter had become a past and closed transaction and could not be reopened on the basis of the increase in salary made on 22nd August, 2002 after their retirement. In this connection he relied on the judgment in the case of Wali-ur -Rehman v. State Life Insurance Corporation reported in 2006 SCMR 1079 and the case of State Bank of Pakistan v. Khyber Zaman reported in 2004 SCMR 1426. Referring to the judgment of the learned High Court in the case of Gulrez Latif Butt, relied on by the learned Advocate Supreme Court for the appellants, he submitted that a Civil Petition for leave to Appeal has been filed and is pending, before this Court. He however submitted that the above judgment, is also distinguishable as Gulrez Latif Butt although a beneficiary, of the same scheme had continued serving the respondent for one reason or another upto September 2003 and was finally retired on 20-9-2003 i.e. after the 134th meeting was held and the salary of the employees was enhanced. He further submitted that the judgmentinthecaseofTanweer-ur-Rehman was passed on 3-2-2010 i.e. after the passing of the impugned judgment and was not before the learned High Court and that is why they held that the petitions were maintainable. He therefore prayed that the appeal being meritless may be dismissed.
7.We have examined the case in the light of the arguments of the learned ASCs and have carefully perused the records of the case including the impugned judgment and the judgments relied on by the learned ASCs.
8.We first take the issue of maintainability of the petition before the learned High Court. It is an admitted fact that the present respondents had not filed any CPLA against the judgment of the Sindh High Court on this point. We have seen that the learned High Court has decided this issue in the following manner:–
“(12) Before parting with this case, we are mindful of the legal situation that the Pakistan State Oil Company Limited may be a company being controlled under the Ministry of Petroleum and Natural Resources, Government o Pakistan but it goes without saying that this company has no statutory rules. It is further clarified that the High Court in constitutional jurisdiction can enforce a statutory rule to the extent if right of any employee is violated in defiance of such statutory rule. Ordinarily contractual obligation or obligations arising out of non-statutory instruments are not enforceable in extra ordinary constitutional jurisdiction of High Court under Article 199 of the Constitution. Admittedly 134th meeting of Board of Management held on 22-8-2002, minutes whereof are on record of this case, the petitioner. wanted to enforce this instrument for claiming relief in pursuance of the same notwithstanding the fact whether on merits such relief is permissible to him or not. It is admitted positionthat such minutes of meeting is non-statutory instrument and ordinarily petition could have been dismissed on this ground alone.
(13)But we would not like to non-suit the petitioner on this score for the reason that in I.A. Sherwani’s case referred supra, at page 1096 CC, their lordship has concluded “The right to receive pension by a Government servant is property so as to attract Articles 23 and 24(1) of the Constitution and any illegal denial to a Government servant to receive the same would affect his fundamental right granted under the said provisions of the Constitution.”
(14)If the aforementioned findings of the Hon’ble Supreme Court are read with the case of Muhammad. Dawood and others v. FederationofPakistanandothers, decidedbythefull bench of this Court, reported in 2007 PLC (C.S.) 1046 wherein their lordships have drawn the conclusion in Paras-29 and 30 and held:-
“(i)Irrespectiveof an employee of a State controlled corporation notbeingacivilservantthecorporationthemselves continue to remain amenable to the jurisdiction of this Court under Article 199 of the Constitution.
(ii)The rule of master and servant is inapplicable to cases where there is a violation of statutory provisions or of any other law.
(iii)The expression “violation of law” would not be confined merely to violation of any specific provision of a statute but the expression “law”, as observed by Hamoodur Rehman, J., (as his lordship: then was) in Government of West Pakistan v. Begum Agha Abdul Karim, Sorish Kashmiri PLD 1969 SC 14, Relevant at page 31 ought to be considered in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the superior Courts. It means according to the accepted norms of legal process and postulates a strict performance of all the functions and duties laid down by law. It may, for instance, includes the principles of natural justice, the public duty to act fairly and honestly and absence of mala fides in fact and law. In all such cases the Court would be competent to grant relief of reinstatement.”
(15)We are bound by the afore-mentioned two judgments in the case of I.A. Sherwani as well as Muhammad Dawood. Had the case of petitioner been covered or supported by the case of Abdul Qadir v. State Bank, which arisen out of the judgment of Federal Service Tribunal as by that time section 2-A of Service Tribunal Act, 1973 was intact and case of Mubeen-us -Salam, reported in PLD 2006 SC 602 has not come into being, had supported the contentions of the petitioners in respect of relief claimed by them we would have no hesitation to grant such relief in constitutional jurisdiction. But unfortunately that is not so. Therefore, all the contentions raised by learned counsels for respondents Mr. Asim Iqbal towards maintainability of this petition based on the ground that Pakistan State Oil Company Limited, being a limited company is not amenable to the jurisdiction of Sindh High Court, since law of master and servant regulates the relationship of employer and the petitioner, and lastly that no statutory instrument is being sought to be enforced, are hereby repelled in view of the reasons what are stated above.”
9.We have carefully, perused the above extract from the impugned judgment and have also perused the judgments of this Court in the case of Tanweer-ur-Islam and I.A. Sherwani’s case relied on by the learned High Court. From a perusal of Tanweer-ur -Islam’s case quoted supra it seems that all the employees who were respondents before this Court were either serving employees or those whose services had been terminated on the basis of non -statutory rules alleged on illegal consideration and this Court had held that since action against them was not taken under statutory rules but under non-statutory rules and on the basis of contract between them therefore the petitions were not maintainable as they will be governed by the principle of master and servant. This Court has however held that Pakistan International Airline is performing its function in connection with the affairs of the Federation. The first question to be seen is whether the PSO is performing the functions in connection with the affairs of the Federation or the Province. The primary test laid down in the Tanweer-ur-Rehman’s case quoted supra is as under:–
(i)whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power;
(ii)whether the control of the organization vests in a substantial manner in the hands of Government; and
(iii)whether the bulk of funds is provided by the State.
If these conditions are fulfilled, then the person, including a body politic or body corporate, may indeed by regarded as a person performing functions in connection with the affairs of the Federation or a Province, otherwise not.”
10.When we apply this test to PSO it is apparent that the functions entrusted to the PSO are indeed functions of the State involving some exercise of sovereign or public power and the control of PSO vests substantially with the Government. So far as the third test is concerned, since the PSO was apparently making profit in 2002 the State may not have provided the funds, but it is clear that in case the PSO runs into losses and is need of funds to carry on its business, subsidy or bailout will be provided by the Government of Pakistan and therefore PSO fulfills the test of being an organization performing functions in connection with the affairs of the Federation.
11.Now we will-examine the first ratio decidendi laid down by this Court in Tanweer-ur-Rehman’s case quoted supra in the light of the judgment of the five member Bench of this Court in the case of I.A. Sherwani v. Federation of Pakistan (1991 SCMR 1041) which was relied on by the learned High Court. We have seen that the employees who were respondents in the PIA’s case and the employees who were respondent in this case fall under different classifications i.e. in the first case all the employees were serving employees who had either been denied benefits or dismissed illegally as alleged. Whereas the present petitioners belong to the classification of retired employees and as held in the I.A. Sherwani’s case and relied on by the learned High Court this Court, has held that the right to receive pension by the government servant is a property so as to attract Articles 23 and 24(1) of the Constitution and any illegal denial to a government servant to receive the same would affect his fundamental right granted under the provisions of the Constitution and therefore if a petitioner is pleading illegality in respect of his pensionary benefits then in our view he will be amenable to the writ jurisdiction of the High Court under Article 199(2) of the Constitution of Islamic Republic of Pakistan. We are therefore in full agreement with the decision of the High Court treating the petition filed by the present petitioners as maintainable and dismiss the objections raisedbythelearnedAdvocateSupremeCourtfortherespondent on this point.
12.We now take up the point whether the petitioners are entitled for payment of the revised salary from 1st July, 2002 and recalculation of their golden handshake benefits. The view which prevailed before the learned High Court is that since the petitioners had already retired before convening of the 134th meeting of the respondent company and had given an undertaking that the dues paid to them were full and final and they have no claim against the company before this Court, it had become a past and closed transaction and the petitioners could not back out from their undertaking and claim recalculation of the benefits. They were also influenced with the fact that the petitioners retired from the service before the meeting and the revised salary was never paid even for one day to the present petitioners and that pensionary benefits are to be calculated on the basis of current basic pay drawn on the date of opting for Voluntary Retirement Scheme. The learned Advocate Supreme Court for the respondent had relied on the judgment of this Court in the case of Wali-ur-Rehman quoted supra wherein this Court had held that petitioners were estopped under the law to put up any claim of whatsoever nature against the respondent corporation in respect of the monetary gain in view of the revised pay scales. We have perused clauses 3 and 4 of the undertaking filed by the present petitioners, which read as under:–
“(3)That the full and final settlement of my dues offered to me under the Optional Retirement Plan-2002 is acceptable to me on the statement of accounts attached with the said Option Form.
(4)That no past claim, demand or counter, claim whatsoever or cause of action is neither pending now nor shall remain pending against the company. I also undertake to withdraw the Suit No.298/97filed by me in High Court of Sindh against Exh.MD. PSO/Ministry of Petroleum and Natural Resources, Government of Pakistan, Islamabad, unconditionally, with my own free will.”
13.The learned Advocate Supreme Court for the respondent had relied on the judgment of this Court in the case of Wali-ur-Rahman v. State Life Insurance Corporation (2006 SCMR 1079). We have perused the above judgment in the light of the facts of this case. In that case the employees who were in employment of State Life Insurance of Pakistan availed the benefit of Voluntary Retirement Scheme by independently exercising their respective options which was accepted and as a result whereof they severed their connection w.e.f. 5th December, 2000 with respondent Corporation on availing extra benefits permissible under the Scheme. In the month of April, 2001 the pay-scales of the employees of the corporation were enhanced w.e.f. 1st January, 2000. In view of such enhancement the petitioner agitated their claim for extending benefit of the same to them as well and since they failed to achieve success at the corporation level and the Federal Services Tribunal level they approachedthis Court. This Court while dismissing their petition held as under:–
“5. We have heard petitioner’s counsel in the case of Wali-ur-Rahman, and the remaining petitioners who appeared in person and have also gone through the judgment wherein an undertaking has been given by the petitioners at the time of accepting extra pensionary benefits. A perusal whereof indicates, that they are estopped under the law to put up any claim of whatsoever nature against the respondent-Corporation in respect of monetary gains in view of the revised pay scales. The petitioners, after having voluntarily accepting the premature retirement cannot be allowed to approbate and reprobate on the ground that after serving connection with the Corporation; it has granted further monetary benefits to its employees. As far as the judgment relied upon by the learned counsel pertaining to State Bank’s employees cases is concerned, it would not render any assistance to them because in the said case no binding undertaking was given by the employees, therefore, being distinguishable on facts and law, discussed therein, its ratio decidendi cannot be applied on the facts and circumstances of the case in hand. In addition to it, it is also to be borne in mind that after having served their connection with the respondent-Corporation, the petitioners Legitimately cannot claim monitory benefits which respondent-Corporation is extending to its employees from time to time, depending upon the change circumstances, by the efflux of time and if the proposition put forward by the petitioners is accepted, then there would be no end to litigation. Therefore, we are of the opinion that petitioners are estopped by their conduct to claim the benefit of revised pay scales in view of the binding undertaking; which they have furnished at the time of accepting extra benefits on their premature retirement.”
14.We have also perused the judgment of the Sindh High Court relied on by the learned Advocate Supreme Court for the appellant wherein an employee of the present respondent who was retired under the same scheme was held to be entitled to all balance amount and other benefits as a legal right which was created in his favour after 134th meeting of the respondent No.2. A perusal of this case reveals that the distinction made by the learned Advocate Supreme Court for the respondent between this case and the case of Gulrez Latif Butt is correct as Gulrez Latif Butt although a beneficiary of the same scheme had continued to serve the respondent for one reason or another up to September 2003 and was finally retired on 20-9-2003 i.e. after the 134th meeting was held and the salary of the employees was enhanced. Whereas both the petitioners before us had left the services of respondent No.2 after availing the option of the Optional Retirement Plan in the first week of August 2002 i.e. before the 134th meeting was held. Therefore, even if we ignore the contention of the learned Advocate Supreme Court for the respondent that .against the judgment of the learned Sindh High Court in the case of Gulrez Latif Butt quoted supra a civil petition for leave to appeal has been filed and is pending before this Court we find ourselves in agreement with him that the case is distinguishable. We have also perused the option Form of Optional Retirement Plan and have noted that clause 3(1) reads as under:–
“(3)ORP-2002 INCENTIVE PAYMENTS:
The following incentive payments under the Plan, in addition to the normal retirement benefits, are offered to all those eligible employees who opt in favour of the plan:
(1)An amount equal to 2.75 (Two and three quarters) months current basic pay for each completed year of service or an amount equal to 1.25 months current basic pay for remaining month of service, whichever is less, subject, however, to maximum of 90 months basic pay.”
From a perusal of the above clause it is seen that the amount of payment has to be made on the basis of current basic pay. This retirement plan is dated 26th June, 2002 and the petitioners had voluntarily and without any coercion filed option forms on 1-8-2002 and therefore their current salary will be their salary as on 26th July, 2002 and not the salary enhanced.
15.We have also perused the impugned judgment of the learned High Court and have seen that the learned High Court has given cogent reasons for rejecting the petition of the present appellants and have rightly relied on the extract from the judgment of this Court in the case of I.A. Sherwani v. Federation of Pakistan (1991 SCMR 1041). We are therefore of the view that the payment made to the petitioners under the Optional Retirement Plan, which was much more than the regular pensionary benefits had become a past and closed transaction and the petitioners cannot benefit from any enhancement made after their retirement despite it being effective with retrospective effect. We also find ourselves in respectful agreement with the judgment of this Court in the case of Wali-ur-Rahman quoted supra and therefore respectfully following the above judgment and for the reasons discussed above we are of the considered opinion that the impugned judgment does not suffer from any illegality and is unexceptionable and no interference is called from this Court. Both these appeals are therefore dismissed.
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