PLJ 2012 SC 289
[Appellate Jurisdiction]
[Appellate Jurisdiction]
Present:
Iftikhar Muhammad Chaudhry, C.J., Tariq Parvez and Ghulam Rabbani, JJ
STATE BANK OF PAKISTAN
through Governor and another--Appellants
versus
IMTIAZ ALI KHAN
and others--Respondents
Civil Appeal No.
581 of 2011, decided on 19.10.2011.
(On appeal from
the judgment/order dated 7-12-2010
passed by High Court of Sindh, Karachi
in Constitutional Petition No. D-1684 of 2006).
State Bank of Pakistan Staff
Regulations, 1993--
----Regln. 19--State Bank of Pakistan
Officers (Pension-cum-Gratuity) Regulations, 1980, Regis. 2(i) & 4--State Bank of Pakistan Act (XXXIII of 1956), S.
54(1) [as (Amendment) Act (II of 1994)]--Constitution of Pakistan, 1973,
Arts. 185(3) & 199--Voluntary Golden Handshake Scheme, 1997 for its
structuring with a view to improve its efficiency and performance by offering a
voluntary exit to its surplus employees up-to 22-11-1997 on payment of
retirement benefits available to them under existing Rules and Regulations in
addition to other normal benefits as compensation--Bank accepted option of 1400
employees of different ranks and paid them amount of their
compensation--Appeals were filed after six years by some employees claiming
pensionary benefits returned by Service Tribunal--Constitutional petition filed
by petitioners was accepted by High Court while directing Bank to pay
commutation of their gross-pension irrespective of such Scheme. [Pp. 293, 294 & 295] A & B
Constitution of Pakistan,
1973--
----Art. 185(3)--State Bank of Pakistan Officers
(Pension-cum-Gratuity) Regulations, 1980, Regls. 2(i) & 4--State
Bank of Pakistan
Staff Regulations, 1993, Regls. 19--Supreme Court granted leave to appeal,
inter alia, to examine as to whether under such Scheme, employees who had
served the Bank for a period of less than 25 years and more than 10 years on
having opted such Scheme were paid compensation towards pensionary benefits
equivalent to 50% commutation of gross pension as full and final settlement as
a "Special Case" without creating any precedent, could still claim to
be entitled to payment of pension on monthly basis. [P. 296] C
PLD
2006 SC 602 ref.
State Bank of Pakistan
Officers (Pension-cum-Gratuity) Regulations, 1980--
----Reglns. 2(i)
& 4--State Bank of Pakistan
Staff Regulations, 1993, Regln. 19--State Bank of Pakistan
Act (XXXIII of 1956), S. 54(1) [as amended by State Bank of Pakistan
(Amendment) Act (II of 1994)]--Constitution of Pakistan, 1973, Arts.
185(3) & 199--Voluntary Golden Handshake Scheme, 1997 for its structuring
with a view to improve its efficiency and performance by offering a voluntary
exit to its surplus employees upto 22-11-1997 on payment of retirement benefits
available to them under existing Regulations in addition to other normal benefits
as compensation as full and final settlement--Option of 1400 employees of
different ranks accepted by Bank on payment of compensation--Appeal before
Service Tribunal after six years by some employees--Tribunal returned appeal
for its presentation before the competent forum--Constitutional petition was
accepted by High Court while directing the Bank to pay commutation of their
gross-pension irrespective of such Scheme--Bank's plea was that petitioners
having voluntarily opted to leave the Bank on acceptance of such Scheme were
not entitled to gross pension, which was payable to an employee after
completing service of ten years or above--Validity--Such Scheme was voluntary
and was not imposed upon employees and none was compelled or under duress,
pressure or coercion to opt for same--Petitioners had been allowed four weeks
time to ponder over such Scheme and before they exercised their option, they
were circulated a print-out copy showing approximate benefit payable to them on
its acceptance--Word "retirement" as per State Bank of Pakistan
Officers (Pension-cum-Gratuity) Regulations, 1980 would mean retirement of an
officer under State Bank of Pakistan Staff Regulations, 1993, meaning thereby
that regular retirement of an employee would be either after completion of 25
years' service or on attaining age of 60 years entitling him to pensionary
benefits--According to terms of such Scheme, employees having opted therefore
would not be entitled to pensionary benefits, rather they would be paid
compensation towards pensionary benefits equivalent to 50% commutation of gross
pension, which would be a full and final settlement as a special
case--Petitioners had not completed 25 years of service at time of exercising
such option--Had petitioner not opted for such Scheme, but had claimed pension
on basis of rendering more than 10 years' service, then they would have been
entitled thereto for same being a regular retirement under the
Regulations--Petitioners had not retired from service by application of
Regulations, 1980 nor under Regulations, 1993, but they had left service
voluntarily after accepting such Scheme, which would govern their
cases--Petitioner had remained silent for more than six years after accepting
such Scheme without any objection--Petitioners had failed to prove/show
infringement of any right and were guilty of laches in approaching legal forum
for redressal of their alleged grievance--Impugned judgment was set aside. [Pp. 307, 308, 310, 311 & 315] E, F, G, H,
M, N & O
PLD 2006 SC 602;
2004 PLC (CS) 1213; PLD 2007 SC 681; (Civil Appeal No. 976-1000 of 2009); PLD
1992 SC 825; 1999 SCMR 255; 2009 SCMR 177; 2005 SCMR 126; PLD 1984 SC 170 and
2004 SCMR 35 ref.
Civil Procedure
Code, 1908 (V of 1908)--
----S. 11 &
O. VII, Rr. 1(g) & 8--Constructive res judicata--Failure of a party to ask
for all relief to which he was entitled--Effect--Such relief, even if available
and not asked for, could not be claimed by filing a subsequent legal
proceedings as same would fall within mischief of constructive res-judicata. [P. 312] I & J
PLD
1999 SC 990 and 2000 SCMR 1232 ref.
Laches--
----Laches was a
doctrine whereunder a party which may have a right, which was otherwise
enforceable, loses such right to the extent of its enforcement, if it was found
by the Court of law that its case was hit by the doctrine of
laches/limitation--Right remains with the party, but he cannot enforce
it--Limitation is examined by the Limitation Act, 1908 or by special laws which
have inbuilt provisions for seeking relief against any grievance within the
time specified under the law and if party aggrieved does not approach the
appropriate forum within the stipulated period/time, the grievance though
remains, but it cannot be redressed because if on the one hand there was a
right with a party which he could have enforced against the other, but because
of principle of limitation/laches, same right then vests/accrues in favour of
the opposite party. [Pp. 312 & 313]
K
Equity--
----Delay would
defeat equity--Equity would aid vigilant and not an indolent. [P. 313] L
PLD
2007 SC 472; PLD 2003 SC 132; 2005 SCMR 126; 1987 SCMR 1119; PLD 1953 PC 19 and
1878 LR 3 AC at Page 1279 rel.
Mr. Khalid
Anwar, Sr. ASC for Appellants.
Mr. Abdur Rahim
Bhatti, Sr. ASC for Respondents Nos. 1 - 132, 134 and 137 - 202.
Sardar
Asmatullah, Sr. ASC for Respondent No. 136.
Respondent
No. 133 in person.
Respondent
No. 135 in person.
Date of hearing:
27.9.2011.
Judgment
Tariq Parvez,
J.--This appeal, by leave of the Court, is directed against the judgment dated 7-12-2010 passed by High
Court of Sindh,
Karachi, whereby Writ Petition No. D-1684 of 2006 filed by the respondents has been allowed.
Karachi, whereby Writ Petition No. D-1684 of 2006 filed by the respondents has been allowed.
2. The State Bank of Pakistan (hereinafter
referred to as `the Bank') is a body corporate, established under the State
Bank of Pakistan Act, 1956 (hereinafter referred to as `the Act, 1956'), with a
preamble that the Bank shall regulate the monetary and credit system of
Pakistan and to foster its growth in the best national interest for securing
monetary stability and fuller utilization of the country's productive
resources. It has played a vital role in the development of the economy of Pakistan and is
financial backbone.
3. In order to regulate its affairs, mandate has
been given to the Bank under the Act, 1956 and to discharge its functions and
perform its duties effectively, it has Central Board and other employees at all
levels to run its day-to-day business.
In exercise of
powers, the Central Board of the Bank on or about 29th day of December, 1979
approved the State Bank of Pakistan Officers (Pension-cum-Gratuity)
Regulations, 1980 (hereinafter referred to as `the Regulations, 1980'), which
in substance has incorporated the pension scheme of the Central Government of
Pakistan. It is to be noted that between the years 1993-1994, number of
amendments were made in the banking laws of the country including the Act, 1956
so as to confer autonomy on the Bank. Section 54(1) of the Act, 1956 was
amended by means of State Bank of Pakistan (Amendment) Act (Act-II), 1994
(hereinafter referred to as `the Act-II of 1994') whereby the words `subject to
the approval of the Federal Government' were omitted; thus the exercise of
powers by the Central Board of the Bank under that section was made fully
autonomous, which does not require previous sanction/approval of the Federal
Government viz. its Rules/Regulations making power.
4. Because of such amendment, the Bank acquired
absolute discretion in the recruitment process of officers and servants
including their terms and conditions of service; Constitution of
superannuation, beneficial and other funds, with or without Bank's contribution
both for officers and servants of the Bank for their welfare and for extending
them other amenities including the medical facilities, grant of loans and
advances, etc. By omission of the words `prior approval' for the purpose of
Section 54 of the Act, 1956, the Bank has become fully autonomous and is not
bound by the policies of the Central Government.
5. The State Bank of Pakistan, in exercise of
its discretionary powers and in order to modernize its banking as was being
done in the private sector Banking, decided its restructuring with a view to
improve its efficiency and performance. Considering the best interest of the
national economy but
simultaneously looking generously to the needs and requirements of
its employees the State Bank of Pakistan introduced several initiatives one of
which was to offer a totally voluntary exit to its employees vide Voluntary
Golden Handshake Scheme. 1997 (hereinafter referred to as
`the Scheme'), which was introduced by way of Circular No. 9 of 1997 dated 23-10-1997.
6. Circular No. 9 of 1997 incorporates the
reasons and objects followed by entitlement of its employees in case they opt
for it i.e. the Scheme. The object to introduce the Scheme has been highlighted
in its opening paragraph by stating that the working conditions requires that
the Bank shall also restructure itself in view of modernize procedures and
during the process of restructuring, it was felt that certain offices will
become redundant and employees working therein were to be put into surplus pool
of the staff and officers at all levels; such staff and officer would be
entitled to reduce compensation as compared to other present emoluments;
however, before a need of establishing surplus pool, it was decided to offer an
attractive Voluntary Golden Handshake Scheme to all employees, therefore, `the
Scheme' was introduced wherein the staff and officers were asked that they will
be entitled to retirement benefits available under the existing Rules and
Regulations and in addition to other normal benefits, the Bank will provide
financial benefit package to all its employees. Detail of the Scheme regarding
entitlement of the officers/staff members was as under:--
(a) Three (3) months Basic Pay for each
completed years of service One and a half months Basic Pay for each remaining
months of service, whichever is less, however, subject to a maximum of 90
months basic pay.
PLUS
(b) Benevolent Fund Grant equivalent to 10
years to be paid in lump sum in advance at the time of settlement of dues, as a
final payment as per entitlement.
(a) Employees who have completed 25 years of
Service or More
(i) Under Old Retirement Benefits.
Provident Fund own and Bank's
contribution and Gratuity @ one month's Basic Pay for each completed year of
service.
(ii) Under New Retirement Benefits.
General Provident
Fund contribution and 50% commutation of Gross Pension and payment of pension
on monthly basis.
(b) Employees whose services are less than
25 years.
(i) Under Old Retirement Benefits.
Provident Fund own and Bank's
contribution and Gratuity @ one month's Basic Pay for each completed year of
service.
(ii) Under New Retirement Benefits.
General Provident
Fund contribution. Although, such employees are not entitled to
pensionary benefits, it has been decided, as a special case and without
creating any precedent to allow them compensation towards pensionary benefits
equivalent to 50% Commutation of Gross Pension as a full and final settlement.
(c) Leave Encashment subject to a maximum of
180 days.
(d) Post retirement medical facilities as
admissible under the Bank's rules, or an amount equivalent to two months pay
for every year for a total period of 10 years, at the option of the employee.
Post retirement benefits (other than
medical facilities) as admissible under the rules.
The above
entitlements were, however, subject to exercise of option by the employees and
the cutoff date for exercise of option was fixed upto 22-11-1997. It was also explained that
no option will be entertained after the expiry of the cutoff date and option
once exercised shall not be revocable. It was also left to the discretion of
the management to accept or reject an option exercised by an employee or it may
defer the acceptance of the option or may accept option with such modifications
as deemed appropriate, keeping in view the interest of the Bank.
7. During the course of arguments, we have been
informed that about 2000 employees of different ranks opted to exercise the
option, out of which about 1400 plus options were accepted by the Bank and the
employees whose options were accepted by the Bank were paid their emoluments
according to their entitlement as provided in the Scheme, by calculating the
length of service of each employee and that without any objection and
reservations, the amount so calculated as entitlement was paid by the Bank and
accepted by the employees, who opted in favour of the Scheme.
8. It appears from the record that somewhere in
June, 2004, after about more than six years, the respondent-employees filed
appeals before the Federal Service Tribunal against the Circular No. 9 (the
Scheme), claiming that they had been deprived of their pensionary
benefits/rights; however, in view of decision rendered by this Court in
Muhammad Mubeen-us-Salam v. Federation of Pakistan (PLD 2006 SC 6021), the
Service Tribunal put-off its hand from the case of the respondent-employees as
their appeals became abated in view of the judgment supra; but they were, however,
directed to take recourse to the competent forum, if so advised, which they
followed by filing of Writ Petition No. 1684 of 2006 in the High Court of
Sindh, Karachi. The Division Bench of the High Court vide its judgment dated 7-12-2010 allowed the Writ Petition
of the respondents with direction to the Bank to pay to the respondents
commutation of their gross-pension, irrespective of the Scheme.
9. Feeling aggrieved of the impugned judgment
dated 7-12-2010, the Bank (appellant) filed Civil Petition No. 295 of 2011,
which came up for hearing before Bench of this Court, headed by the Hon'ble
Chief Justice of Pakistan, when leave to appeal was granted on 12-7-2011.
Operative para of the order is reproduced hereinbelow for convenience:--
"2. Leave
to appeal is granted, inter alia, to examine that under the "Voluntary
Golden Handshake Scheme" the respondents, who have served the petitioner
Bank for a period of less than 25 years and more than 10 years on having opted
the said Scheme were paid compensation towards pensionary benefits equivalent
to 50% commutation of Gross Pension, as full and final settlement, as a
"Special Case" without creating any precedent, can still claim that
they are entitled for the payment of pension on monthly basis."
10. The summery of arguments that has emerged out
of the submissions made by the learned counsel for the appellant-Bank is be given as under:--
(a) That the impugned judgment of the
learned High Court is contrary to the principles as laid down by this Court in
the case of State Bank of Pakistan v. Khyber Zaman and others [2004 PLC (CS)
1213].
(b) That the learned High Court has erred in
law and failed to appreciate that the Scheme constituted full and final
acceptance of pensionary benefits/entitlement of the respondents.
(c) That the impugned judgment suffers from
misinterpretation of Regulations, 1980 and State Bank of Pakistan Staff
Regulations, 1993 (hereinafter referred to as Staff Regulations, 1993).
(d) That the High Court has embarked upon
the matter, which was either a past and closed transaction or was barred by
limitation being hit by the doctrine of laches.
(e) That the assumption of Constitutional
jurisdiction in the subject matter by the learned High Court was uncalled for
and was illegal because the services of the respondents-employees are not
governed by the statutory rules.
11. Learned counsel after formulating the
synopsis of his arguments has argued that the impugned judgment is based on
complete misreading and misapplication of the Regulations, 1980 and Staff
Regulations, 1993.
According to him
the service and pension Rules and the polices of the Central Government in no
way are applicable to the respondent-employees of the Bank as their service and
pension Rules are governed by the Regulations, 1980 and Staff Regulations, 1993
where the latter Regulations have overriding effect to the former.
He has argued
that the circular issued by the appellant-Bank or the policy introduced and
implemented subsequent to acceptance of the Scheme by the respondent-employees
have no application to the case of the respondent-employees, therefore, in
absence of any fresh legal entitlement, they could not claim any financial
benefit, which are not applicable retrospectively but prospectively to the
cases of those employees who are or would be in service at the time when any
subsequent scheme or incentive or policy is introduced by the appellant-Bank.
He has submitted
that service rules and staff regulations of the appellant-Bank are not
statutory in nature, therefore, on the strength of decision rendered by this
Court in Muhammad Idrees v. Agriculture Development Bank of Pakistan and others
(PLD 2007 SC 681) and in State Bank of Pakistan v. Muhammad Aslam Khan (Civil
Appeals Nos. 976-1000 of 2009), the jurisdiction assumed by the learned High
Court was in contravention of the law laid down by this Court in the above
cited judgments.
Learned counsel
has further argued that in view of above cited judgment, when it is a matter
between employer and employee whose services are not governed by the statutory
Rules, their relationship would be that of master and servant, therefore, it
would be beyond the Constitutional jurisdiction of the High Court.
The learned
counsel has placed more emphasis on his submission that the learned High Court
has completely misinterpreted and erroneously applied the Regulations, 1980
which are to be read in conjunction and in consonance with the Staff
Regulations, 1993. He has referred to para-4 of the Regulations, 1980 wherein
`pension' has been defined as:--
"an officer who retires after completing not less than ten
years of total qualifying service shall be entitled to a gross pension."
According to him
this entitlement to gross pension is in respect of such employee who retires
after completing service of ten years or above and it would not be applicable
to an employee who separates himself from the appellant-Bank on acceptance of
the Scheme, which Scheme was voluntary one and was subject to exercise of
option.
According to the
learned counsel, it was not the employer who has removed the employees i.e. the
respondents but the respondent-employees have opted for exit from the
appellant- Bank on the basis of terms and conditions as spelt out in the
Scheme, therefore, such employees could not be brought within the purview of
para-4 of the Regulations, 1980, which refers to retirement of an employee and
not to an employee who opts to leave the appellant-Bank on acceptance of the
Scheme.
Learned counsel
has also referred to the definition of the word `retirement' as provided in
Regulations, 1980 which reads as under: --
"2(i). `retirement' means retirement of an officer under the State
Bank of Pakistan
(Staff) Regulations and includes termination of service for any reason other
than dismissal."
His submission
is that an officer who retires in accordance with Staff Regulations, 1993 may
fulfils the criteria as given under the paragraph of `pension' shall be
eligible to receive gross pension. According to the learned counsel the
definition of the word `retirement' under Regulations, 1980 also states that
`termination of service other than dismissal'. In his view the acceptance of
the Scheme, which was also voluntary to opt cannot be termed as termination of
service but it was a voluntary withdrawal by the respondents.
The learned
counsel on the strength of his above submissions has also referred to para-19
of the Staff Regulations, 1993, which reads as under:--
"19. (i) An officer or an Executive shall retire from service:
(a) on such date after he has completed
twenty five years of service qualifying for pension or other retirement
benefits as the Government may, in the interest of the Bank and for reasons to
be recorded in writing in each case direct; or
(b) in any other
case, on the completion of the sixtieth year of his age.
(ii) An employee in Clerical and Non-Clerical
cadre shall retire on the completion of the sixtieth year of his age.
(iii) The Governor may, on the request of an
employee allow him to retire on any day after the completion of 25 years of
service in the Bank.
The learned
counsel has also objected to the findings recorded by the learned High Court in
the impugned judgment, where it has been held that "voluntary exit of an
employee from the SBP through VGHS is a termination of service, and is therefore,
a retirement from service" According to the learned counsel such
interpretation and conclusion drawn by the learned High Court is entirely
erroneous and misconceived because the term `termination' cannot be read in
isolation nor is independent to Staff Regulations, 1993. He has added that if
more than ten years service is taken as base for qualifying period for pension
and the word `termination', as used in the definition of `retirement', is given
wider meaning and scope, it would tantamount to frustrate the very object of
introducing the Scheme. He has elaborated his submission by giving an example
that such wider interpretation shall adversely affect the very purpose of
introducing the Scheme. He has given an example that a DMG officer after having
served for ten years period, on attaining the age of 35 years can say that he
is entitled to be retired with pension for rest of his life. According to
learned counsel if such interpretation is allowed to prevail, then a person who
joins service at the age of 20/21 years, on reaching the age of 31/32 years can
quit from service by taking advantage of the term `retirement' making him
entitled to receive gross-pension whereas he shall be still young person of
31/32 years age and he can switchover to another job, receiving salary of new
assignment, leaving behind the financial burden on its previous employer, which
in fact, in the opinion of the learned counsel, is a burden placed on the
shoulders of present and future generation, left by the previous generation.
Learned counsel
has further argued that because of irrational and illogical meanings, which
have been assigned to the words `termination of service' to amount `retirement'
by the learned High Court, the very object of the Scheme has been frustrated. According to him only two situations have been enumerated in the
Staff Regulations, 1993 i.e. either retirement on the basis of completion of 25
years of service or on reaching the age of 60 years.
Learned counsel
has also argued that the Scheme itself had made it crystal clear that the
employees have been divided into two categories i.e. those who have completed
25 years of service and secondly those whose service is less than 25 years; in
case of first category, the employees are held entitled to GP Fund contribution
and 50% commutation of gross-pension and payment of pension on monthly basis,
which would mean that they would get 50% commutation of the gross pension as
well as they would also be entitled to obtain payment of pension on monthly
basis because they became entitled to monthly pension having served for 25
years in the appellant-Bank; whereas the employees whose service is less than
25 years have been clearly placed in second category of the Scheme where there
is no reference whatsoever for payment of pension to them under the
pre-existing system since they had not retired. The learned counsel has
referred to the Scheme itself wherein clause (b)(ii)
clearly provides that "General Provident Fund Contribution; although such
employees are not entitled to pension benefits, it has been decided, as a
special case and without creating any precedent to allow them compensation
towards pensionary benefits equivalent to 50% commutation of gross-pension as a
full and final settlement" (emphasis provided).
The learned
counsel has also raised objection to the placing reliance by the learned
Division Bench of the High Court upon the case of State Bank of Pakistan v.
Khyber Zaman [2004 PLC (CS) 1213] as according to him in this cited case, the
dispute before the Court was over the grant of Benevolent Fund Grant at
enhanced rate. In his view, by means of the impugned judgment, the learned High
Court has made the respondent-employees entitled to double benefit i.e. held
them entitled to payment under the Scheme and now payment of pension under
para-4 of the Regulations, 1980. The learned counsel also referred to paras 4,
5 and 10 of the cited judgment at pages 1220 and 1223, where it has been
concluded by this Court that "it is not understandable how any deletion,
amendment, addition or insertion can be made by us in GHSS especially when it
is free from any ambiguity and does not call for scholarly interpretation; no
where it has been mentioned in the computer print that an employee of the State
Bank of Pakistan who opts for GHSS would be entitled to get double benefit
available in the existing rules and that of the GHSS" (emphasis provided).
It was finally concluded that "how the respondents can be allowed to
approbate and reprobate after the acceptance of GHSS in toto without any
objection".
The learned
counsel has also submitted that the findings recorded by the learned Division
Bench of the High Court in the impugned judgment by placing reliance on the
Scheme introduced by the State Bank of Pakistan Banking Services Corporation in
the year 2003 with title "Special Early Retirement Package for Engineers
on Engineering side and for Clerical & Non-Clerical Staff of all
sides", which had allowed 100% commutation for those employees who opted
for said Scheme and who had rendered ten years or more service. According to
the learned counsel, such application of subsequent scheme to the case of the
present respondents was illegal for the reason that this Scheme was introduced
by the State Bank of Pakistan Banking Services Corporation (Bank), which is a
separate legal entity i.e. a statutory body set up under a different enactment
and not by the appellant-Bank for its employees and also that the said Scheme
was introduced several years after the retirement of the respondent-employees,
therefore, this Scheme at all was not relevant.
The next
submission of the learned counsel is that the very language of the Scheme
suggests that it was a voluntary Scheme and no employee was under any
obligation to accept it. He has added that all employees were given sufficient
and reasonable time of four weeks to consider the Scheme and if it was
beneficial to them, they may opt for it; therefore, there could be element of
coercion or duress.
Learned counsel
further submits that the respondent-employees had approached the learned High
Court (a forum, in his opinion, not available to them) for redressal of their
grievance after about a period of six years or more because they for the first
time filed an appeal before the Federal Service Tribunal in January, 2004
against the Circular No. 9 i.e. the Scheme, therefore, their petition was badly
hit by the doctrine of laches.
The learned
counsel has finally argued that it is established principle of law that a Writ
Petition would not be maintainable if the petitioner had adequate alternate
remedy available to him; in his view, since the services of the
respondent-employees were not regulated under any statutory rules and their
terms and conditions were controlled on the principle of master and servant;
therefore, only a Civil Court could have jurisdiction for redressal of
grievance of the respondents, if any.
While concluding
his submissions, the learned counsel has reiterated that in the Scheme itself,
it is clearly noted that an employee accepting the Scheme shall not be entitled
to pension and in the Scheme itself the word `compensation' has been used
instead of the word `pension', apart from mentioning that it shall be `full and
final' settlement between the employees and employer.
12. At the converse, learned counsel appearing
for the respondent-employees while relying upon the impugned judgment, whereby
they were allowed relief as claimed for being petitioners before the High
Court, fully supports the impugned judgment. His submission is that the
respondents have been discriminated vis-a-vis similarly placed employees of the
appellant-Bank, therefore, their right as protected under Article 25 of the
Constitution of Islamic Republic of Pakistan (hereinafter referred to as `the
Constitution') stands violated.
His submits that
irrespective of what was held out at the time of introduction of the Scheme and
as contained therein was not adhered to by the appellant-Bank's authorities but
on the contrary the same was not acted upon rather violated. He has added that
under the Scheme itself, it was provided that an employee, who accepts the
Scheme and opts for it, shall be entitled to benefits under the Scheme which
was in addition to other retirement benefits (emphasis provided).
The learned
counsel has argued that the retirement benefits were the entitlement of the
respondent-employees, which could not have been denied and the
respondent-employees in fact have favoured the appellant-Bank by exercising the
option by acceptance of the Scheme whereby the financial burdens for future was
reduced. According to the learned counsel the exit of the respondent-employees
from the appellant-bank thus has created room for new entrant.
The learned
counsel on the one hand has argued that there is violation of rights of the
respondents under Article 25 of the Constitution but on the other hand he
stresses that even later on the appellant-Bank has been introducing voluntary
retirement schemes whereunder the employees who had completed ten years of
service with the Bank were held entitled to full pensionary benefits, which
have been denied to the respondents.
The learned
counsel has also referred to various other voluntary retirement schemes, both
from public and private sectors including the one introduced by the Federal
Government, whereunder the employees, who have completed ten years of service
and have opted for early retirement, are held entitled to receive full pension
besides the benefits of the Scheme.
He has also
contended that the status of the respondent-employees has been admitted by the
appellant-Bank to be their retired employees as is abundantly clear from the
certificate issued in their favour from time to time, where they have been
recorded as retired employees of the Bank. He has also referred to respondents'
official I.D. Cards issued by the Bank itself, where against the status of
employees, the word `retired' has been recorded.
While giving
upshots of his above submissions, the learned counsel has submitted that since
the respondent-employees stand retired from the appellant-Bank after having
putting in ten years or more service, they are entitled to receive pensionary
benefits including the pension itself, which has been denied to them whereas
under similar Scheme by appellant-Bank other employees who opted for early retirement
have been extended the benefit of pensionary benefits i.e. they have been given
pension.
While reply to
the question of laches, it is argued by the learned counsel that the denial to
pay pension to a retired employee is recurring cause of action and it remains
alive until the demand of the employee, which in fact is his legal right, is
not fulfilled.
In support of
his above submission, he has argued that as benefit of pension continues till
death of an employee and in some cases it devolves upon the widow of the
deceased employee, thus it is a continuous right, therefore,
no question of laches arises. The learned counsel while placing reliance upon
Muhammad Masihuzzaman v. Federation of Pakistan (PLD 1992 SC 825), Muhammad
Ahmed v. Government of Sindh (1999 SCMR 255) and Muhammad Anwar Siddiqui v.
Lahore Development Authority (2009 SCMR 177), has argued that doctrine of
laches is not of universal application but dependent upon the facts of each
case, therefore, the arguments of the learned counsel for the appellant-Bank
that the claim of the respondent-employees is hit by the doctrine of laches is
ill founded.
Finally as to
the question of assumption of jurisdiction by the learned High Court in the
matter, it is argued by the learned counsel that the respondent-employees were
claiming a right under the Regulations, 1980, which were statutory in nature
because until the year 1994, under Section 54 of the Act, 1956 the Rules and
Regulations made by Board of Governors of the Bank require previous approval of
the Federal Government and the Regulations, 1980 were made at the time when
such approval was required, which condition was latter on omitted from Section
54 of the Act, 1956 through Act-II of 1994. His submission is that since the
respondent-employees were subjected to the Regulations, 1980 which were having
statutory force and since they were denied their legal right, therefore, they
had rightly invoked the Constitutional jurisdiction of the High Court.
13. Sardar Asmatullah, learned Senior Advocate
Supreme Court appearing for one of the respondents has adopted the arguments of
Mr. Abdur Rahim Bhatti, Advocate Supreme Court; however, he has added that he
would like to make his submission on the question of laches, while also relying
upon the cases of Muhammad Masihuzzaman (ibid), Muhammad Ahmed (ibid), S.A.
Jamil v. Secretary to the Government of the Punjab (2005 SCMR 126) and Muhammad
Anwar Siddiqui (ibid).
Substance of the
above judgments, as submitted by the learned counsel is that delay in
approaching the legal forum though is relevant but it is not a universal rule
that on account of delay/laches a person shall be deprived of or denied a
vested right, particularly when a right claimed is recurring one. According to
him, in the instant case, the respondents had approached the learned Federal
Service Tribunal in the first instance and then filed a Constitutional Petition
before the High Court at Karachi,
claiming that they are entitled to pensionary benefits. According to the
learned counsel, to receive pension by an employee who stands retired from
service is his subsisting monthly right, which gives him cause of action, on
denial, at the end of every month.
14. Mr. Atif Hayat and Ms. Anjum Naz, Respondents
Nos. 133 and 135, respectively, have appeared in-person and made their
submissions. Respondent-Atif Hayat has argued that there is denial of equal
treatment amongst the equals by the appellant-Bank because subsequent to the
Scheme, to which he has opted while in service, many other Schemes of similar nature
have been introduced by other Banks as well as by the Government Departments
and also by the appellant-Bank itself wherein better terms and conditions for
voluntary withdrawal from service have been extended to the employees including
awarding them pensions on monthly basis; therefore, he and his co-employees,
who opted for the Scheme are entitled to pension on monthly basis.
He has also
referred to Articles 3 and 4 of the Constitution and has further argued that it
is responsibility of the employer that the respondent-employees shall be dealt
with in accordance with law and when the principle of due process of law is
invoked with regard to latter similar policies, any amount due against the
employer had remained outstanding until the same is paid.
15. We have heard the learned counsel for the
parties as well as the respondent-employees (in-person) and have also carefully
gone through the impugned judgment as well as the material submitted by the
learned counsel for the parties in support of their respective submissions.
16. It may be noted that the learned Division
Bench of the High Court of Sindh after hearing the parties counsel and while
dealing with the question of assumption of jurisdiction by it has held that
prior to enforcement of the Act-II of 1994, the words `subject to approval of
the Federal Government' existed in sub-section (1) of Section 54 of the Act,
1956, which empowers the Central Board to make Regulations but by the
enforcement of the Act-II of 1994, approval of the Federal Government was no
longer required. It is held that the Rules and Regulations framed by the
Central Board of the appellant-Bank, after the above amendment of Section 54 of
the Act, 1956 would no longer statutory but internal instructions of domestic
Rules/Regulations, having no status of statutory Rules/Regulations. Reliance in
this behalf has been placed on Principal, Cedet College, Kohat v. Muhammad
Shoab Qureshi (PLD 1984 SC 170) and Zia Ghafoor Piracha v. Chairman, Board of
Intermediate and Secondary Education (2004 SCMR 35). It is finally concluded by
the learned High Court that since the Regulations, 1980 were framed prior to
the enforcement of the Act-II of 1994, therefore, these Regulations shall have
the force of statutory Rules/Regulations and as such Constitutional Petitions
was maintainable.
17. While meeting to the arguments of the counsel
for the respondent (appellant herein) it was held by the learned Division Bench
that in para-19 of the Staff Regulations, 1993, it has been provided that an
officer or executive shall stand retired from service either on completion of
25 years qualifying service for pension or in any other case, on the completion
of the sixtieth year of his age. Similarly, while reading para-19 of the Staff
Regulations, 1993 with the Regulations, 1980, where the word `retirement' has
been defined in Section 2(i) i.e. retirement means retirement of an officer
under the State Bank of Pakistan Staff Regulations and includes termination of
service for any reason other than dismissal, it is held by the learned High
Court that the word `termination' is a genus of having relevant to dismissal,
discharge, retrenchment, resignation, retirement etc. and thus termination of
an employee can be brought about in many ways.
The learned High
Court has also referred to dictionary meanings of the word `termination' from
Judicial Dictionary by K.J. Aiyar 13th Edition, where while giving reference to
five extracts from different judgments of the Indian Supreme Court and other
jurisdiction, it has been defined as under:--
"Termination--of
service.
The decisions of Supreme Court in Satish Chandra Anand v. Union of India [1953
SCR 655, AIR 1953 SC 250] and Shyam Lal v. State of Uttar Pradesh [(1995) 1 SCR
26, AIR 1964 SC 369] clearly establish that termination of the services of a
person employed by the Government does not amount in all cases to dismissal or
removal from service. [Hartwell Prescott Singh v. Uttar
Pradesh Government AIR 1957 SC 886 at 887].
The essential element of termination
is that as soon as the services of a person are terminated, all bonds right and
liabilities are immediately snapped; there is no continuity of any right or
benefit whatsoever after termination, except perhaps such rights and benefits
are expressly provided by the statute. [Bholanath v. Union of India
(1992) 19 ATC 188 at 196 (All)].
The expression in ordinary parlance
may include termination for misconduct; but in the light of rules and
prevailing practice, the meaning of that word has come to be restricted to
contractual termination unconnected with any idea of punishment for misconduct.
[Devraj Urs v. General Manager Mysore State Road Transport Corporation (1970) 2
Mys LJ 496, 1971 Lab IC 469, AIR 1971 Mys 99 (106)].
It is,
therefore, held by the learned Division Bench of the High Court that the term
`termination' in context of relationship of `employer' and `employee', means to
bring the service to an end by any mode whatsoever. While concluding on this
issue, the learned Division Bench has also concluded that when the appellants
(respondents herein) opted for the Scheme, it was a termination by contract
between the employer and employee and in view of the specific definition of
`retirement' provided in the Regulations, 1980 such a termination would be
included in `retirement'.
The learned
Division Bench then referred to a precedent case of United Bank Ltd. where
retrenchment of 5000 officers were made and Golden Handshake benefits were also
paid to them, which matter came up before this Court in the case of United Bank
Limited v. Shamim Ahmed Khan (PLD 1999 SC 990), wherein retrenchment on the
part of the Management was upheld but benefits as spelt out in the retrenchment
scheme were allowed to the employees.
The learned
Division Bench has also referred to another case i.e. Akram Zafaoor v.
Federation of Pakistan (2000 SCMR 1232), wherein this Court has passed a
consenting order with the following observation:-
"The grant
of pensionary benefits shall be available to those petitioners who are found
entitled in accordance with the Service Rules of the respondent bank in force
at the time of termination of their service."
The learned
Division Bench of the High Court, therefore, has held that there is a
distinction between the UBL and the present Scheme and while again placing reliance
on the findings that the termination would mean retirement, the respondents
(appellants before the High Court) who have completed not less than ten years
of total qualifying service in the appellant Bank were held entitled to the
pensionary benefits.
18. Now coming towards the submissions made by
the parties' counsel. Both the sides have not only referred to or relied upon
the Regulations, 1980 and the Staff Regulations, 1993; therefore, we intend to
refer to the relevant provisions of the Regulations relevant for disposal of
instant appeals.
Both these
Regulations have been made by the Central Board of the appellant-Bank
exercising power conferred by Section 54 of the Act, 1956. Section 2 of the
Regulations, 1980 provides definition to different words used in the
Regulations. The word `retirement' is defined as under:--
"2(i). `retirement' means retirement of an officer under the State
Bank of Pakistan
(Staff) Regulations, and includes termination of service for any reason other
than dismissal."
Similarly
Section 19 of the Staff Regulations, 1993 defines the word `retirement' as
under:--
"19.(i) An officer or an Executive shall retire from service:--
(a) on such date after he has completed
twenty five years of service qualifying for pension or other retirement
benefits as the Government may, in the interest of the Bank and for reasons to
be recorded in writing in each case direct; or
(b) in any other
case, on the completion of the sixtieth year of his age.
(ii) An employee in Clerical and Non-Clerical
cadre shall retire on the completion of the sixtieth year of his age.
(iii) The Governor
may, on the request of an employee allow him to retire on any day after the
completion of 25 years of service in the Bank."
Before we dilate
upon the above provisions, presently we would like to discuss the Scheme itself
because the claim of the respondent-employees is based on the Scheme and
application of Regulations, 1980 and the Staff Regulations, 1993. According to
the Scheme the staff and officers, who will opt for the Scheme, shall be
entitled to retirement benefits available under the existing Rules and
Regulations. It is also stated that in addition to normal retirement benefits,
the appellant-Bank will provide the following financial and benefit package
under the Scheme to the employees--
(i) three
months basic pay for each completed years of service or one and a half months
basic pay for each remaining months of service, which ever is less, however,
subject to a maximum of 90 months basic pay.
(ii) Benevolent Fund Grant equivalent to 10
years to be paid in lump sum in advance at the time of settlement of dues, as a
final payment as per entitlement.
The Scheme
elaborates further normal retirement benefits, which will be available to the
employees, for which, the employees were divided into two groups; first group
comprises of the employees, who have completed 25 years of service or more; and
the second group of those employees, whose service tenure is less than 25
years. Admittedly the present respondents fall in second category as they have
not completed 25 years service; in case of this category, under the old/new
retirement benefits, the employees were held entitled as under:--
(i) Under
Old Retirement Benefits.
Provident Fund own and Bank's
contribution and Gratuity @ one month's Basic Pay for each completed year of
service.
(ii) Under New Retirement Benefits.
General Provident
Fund contribution. Although, such employees are not entitled to
pensionary benefits, it has been decided, as a special case and without
creating any precedent to allow them compensation towards pensionary benefits
equivalent to 50% Commutation of Gross Pension as a full and final settlement.
19. If the arguments and the logic advanced by
the learned counsel for respondent-employees is accepted and allowed to
succeed, in our considered view, it would tantamount to annulling the very
object and purpose of introduction of the Scheme, as highlighted in the initial
part of this judgment i.e. the Scheme was introduced for restructuring of the system
and to streamline the working of the Bank and also to reduce the redundancy.
There was at one stage of time opined by the appellant-Bank that let there be a
surplus pool for such staff, which had become redundant or was no longer
required but such idea was dropped and instead the Scheme was introduced. The
very heading of the Scheme suggest that it was a voluntary Scheme and was not
imposed upon the employees; no one was compelled or was under any pressure,
duress or coercion to must opt for the Scheme; so much so that about four weeks
time was allowed to the employees to ponder over the Scheme and before they
exercise their option for Scheme, they were circulated a printout copy, showing
the approximate benefit which was being extended to an employee to prepare
himself to accept and avail the package or not.
20. The argument was that the
respondent-employees are entitled to pension on the strength of similarly
placed employees of other different organization like United Bank Ltd. or under
Circular No. 5, dated 21-4-2003 issued by the State Bank of Pakistan (SBP
Banking Services Corporation (Bank) or Downsizing of the Federal
Ministries/Divisions, Attached Departments/Officers Public Sector Corporations
etc. where in some cases, pension was granted/allowed to employees whose
service tenure was upto 10 years. Suffice it to say that the terms and
conditions of the present Scheme and other Schemes cited above are totally
different, therefore, it cannot be argued that similarly placed employees in
the appellant-Bank or other institutions were given pension but the
respondent-employees were denied.
21. Misconception appears to be for the reason
that the word `retirement' as defined in the Regulations, 1980 includes the
`termination'. These two words have been read together by the
respondent-employees and they are interpreting these words generally to the
effect that since by virtue of exercise of option of acceptance of the Scheme,
their services are terminated and they stand retired, therefore, they are entitled
to retirement benefit which includes pension.
The above wrong
assumption can be clarified from the definition of the word `retirement given
in the Regulations, 1980 read with para-19 of the Staff Regulations, 1993;
according to the definition of the word `retirement', given in the Regulations,
1980, `retirement' includes termination of service for any reason other than
dismissal, but such definition is to be read with the Staff Regulations, 1993,
which Regulations specifically deal with the employees of the appellant-Bank,
providing the criteria and entitlement of an Officer or an Executive or an
employee either, Clerical or Non-Clerical; according to the Staff Regulations,
1993 `retirement' means that an officer or an Executive shall retire from service
on such date after he has completed twenty five years qualifying service for
pension or in any other case, on attaining the age of superannuation i.e. 60
years; similarly an employee in Clerical and Non-clerical cadre shall retire on
the completion of 60 years of his age. So in this manner, para 19 of the Staff
Regulations, 1993 controls the definition of `retirement' as given in the
Regulations, 1980 because the word `retirement', as per the Regulations, 1980,
means retirement of an officer under the Staff Regulations, 1993; meaning
thereby that the regular retirement of an employee of the appellant-Bank is
either after he completes 25 years of service or he attains the age of 60
years. The entitlement to pension at the age of 60 years has been explained in
the preceding paras of this judgment through an example but at the cost of
repetition, it is again stated that may be a person joins the Bank at the age
of 48 years but when he becomes of 60 years of age, he shall stand retire under
para-19 of the Staff Regulations, 1993; now because he would be retiring in
terms of para-19, therefore, he would be entitled to such pensionary benefits
as would be permissible either under old or new retirement benefits.
22. It appears that when the Scheme was being
drafted, each word used therein was made very clear in the Scheme itself like
in para 2(b)(ii) under the Heading `under new retirement benefits', it was
specifically stated in respect of employees who had less than 25 years of
service that `although, such employees are not entitled to pensionary benefits,
it has been decided, as a special case and without creating any precedent to
allow them compensation towards pensionary benefits equivalent to 50%
Commutation of Gross Pension as a full and final settlement (emphasis
provided). Therefore, it was clearly stated that such employees otherwise were
not entitled to pension but as a special case and on the basis of exercise of
their option to opt for the Scheme, they were being compensated towards the
pensionary benefits and that such compensation shall be full and final
settlement. (emphasis provided).
23. Since the respondent-employees could not
point out that fraud was committed to them or they were deceived by the Bank,
nor there is any material to infer that any duress or coercion was used against
them rather they were allowed four weeks time alongwith printout of the
approximate emoluments they would be receiving on exercise of option and
because the Scheme itself states that the option once exercised will not be
revocable under any circumstance, the respondent-employees cannot claim nor
they can be held entitled to the benefit of pension.
24. From the tenor of the drafted petition filed
before the High Court of Sindh, Karachi and what has been argued before us by
the learned counsel for the respondents, much stress has been placed on the
application of Article 25 of the Constitution of Islamic Republic of Pakistan
by arguing that the respondent-employees have been meted out in discriminatory
manner and thus the Bank has failed to perform its Constitutional obligations.
While making
reference to different stances, the learned counsel for the
respondent-employees has referred to Special Early Retirement Package for
Engineers on Engineering side and for Clerical and Non-Clerical Staff of all
sides, which is Circular No. 5 dated 24-4-2003, wherein special early
retirement package given to the employees of the Bank was said to be much more
beneficial. He has also referred to a letter issued by the Finance Division, Government
of Pakistan dated 30.11.1977 and argue that under such letter as well, the
respondent-employees of the appellant-Bank were placed in a better position
vis-a-viz, the retirement benefits with a better rate and the scales for
pension. Learned counsel has also referred to a letter dated 25-1-1982 issued by the
State Bank of Pakistan Central Directorate whereunder the available retirement
benefits have been given by making comparison to old retirement benefits and
the new retirement benefits. He submits that immediately after the
implementation of the Scheme, the State Bank of Pakistan through Personal
Department Circular No. 12, dated 29.11.1997 introduced Revised Salary
Structure followed by a Memorandum No. 15 of 1998 to the Central Board Pension
and Commutation Policy, whereunder an employee who has rendered 10 years of
service became entitled to pension. According to the learned counsel on this
score alone, the respondent-employees have been discriminated by denying their
right to receive pension.
25. At this stage, we will refer back to the
Scheme itself which, inter alia, contends that the employees, who opted for the
Scheme shall be entitled to retirement benefits available under the existing
Rules and Regulations and in addition to normal retirement benefits, the
appellant-Bank will provide them another package, which has been spelt out in
the Scheme and has been reproduced in the earlier part of this judgment. No doubt
that as per the subsequent Schemes, the employees of the appellant-Bank and the
other institutions, who have rendered, 10 years or more service have been held
entitled to monthly pension, calculated and determined on the basis of last pay
drawn and commuted with the percentage on the basis of any further one year
service but such pension benefits would be available only under the Regulation
and the law governing the services of the employees. The Scheme itself makes it
very clear that the employees have been bifurcated in to two categories; in
category-I are the employees, who have completed 25 years of service, whereas
in category-II are the employees who have rendered less than 25 years service.
Had it been the
case that the respondent-employees had not opted for the Scheme as was
introduced by the appellant-Bank and had claimed pension on the basis of
rendering more than 10 years service, they would have been entitled to such
pension as calculated and determined in view of the Pension and Gratuity
Rules/Regulations but that would be a regular retirement under the Regulations.
Similarly where
pension has been held to be the entitlement of an employee, who has put in 25
years of service, would mean that in case of employee retiring in due course,
either on completion of 25 years of service or on attaining the age of
superannuation. The respondent-employees are mixing up their withdrawal/exit
from the appellant-Bank, which was not either under the Regulations, 1980 or
the Staff Regulations, 1993 but was independent of two Regulations and their
cases are to be totally governed within the parameters and scope of the Scheme,
which was voluntary and to which they opted for, after they were made fully
aware of the Consequences including that such an option once exercised shall be
irrevocable and that whatever they may receive shall be settlement of their
dues as a full and final payment as per their entitlement.
26. No discrimination can be claimed viz.
employees who were not similarly placed as against the present respondents.
Discrimination can be claimed amongst equals if differently treated; if certain
employees of the bank who subsequent to the Scheme had retired on the basis of
another Scheme or early retirement package etc. would be in a different
category as against the present respondents. If within those employees, who
were similarly placed with them and who had similarly exercised their option to
quit the Bank on the basis of the Scheme or if any employee of the same status,
as they were, is given more benefits or pension, on then the respondents can
claim discrimination; therefore, in absence of that, the respondents have
failed to make out a case of discrimination.
27. It appears that while exercising option under
the Scheme, some of the employees may have completed 25 years of service,
therefore, they were held entitled to receive pension as it was clearly
mentioned in para-2(a)(ii) of the Scheme, which
provides that a person having completed 25 years of service or more, amongst
other retirement benefits, shall be entitled to gross pension and payment of
pension on monthly basis. As regards the case of the respondents, since they
were falling in the category of the employees, whose rendered service is less
than 25 years, as given in para-2(b)(ii) of the
Scheme, such employees are not entitled to pensionary benefits but without
creating any precedent, they would be given compensation towards the pensionary
benefits equivalent to 50% commutation of gross pension as a full and final
settlement (emphasis provided).
28. Since the respondent-employees have not
retired from service of the appellant-Bank by application of the Regulations,
1980 nor under the Staff Regulations, 1993 but they have left the service of
the appellant-Bank at their own by exercising their own right of option by
accepting the Scheme, therefore, their cases are squarely governed and
controlled under the terms and conditions as was clearly spelt out in the
Scheme itself. As no reference can be made as to how and against whom the
respondents were differently treated in a discriminatory manner, we have failed
to understand as to how there was any violation of Article 25 of the
Constitution.
29. We have also taken notice of the fact that
not all the employees but some of them had approached this Court, who had also
opted under the same Scheme but had asked for re-fixation of their pension on
the basis of revised pay scales in Khyber Zaman v. State Bank of Pakistan (2005
SCMR 235) and State Bank of Pakistan v. Mumtaz Sultana (2010 SCMR 421), and no
question of discrimination was raised before this Court nor the question of entitlement
to pension on the basis of 10 years service or more was raised. It is well
settled law that party once approaching the Court for seeking relief shall seek
all the relief to which it thinks is entitled to and if such relief, even if
available but not asked for, cannot be claimed by filing a subsequent legal
proceedings as it would fall within the mischief of constructive res judicata.
On this ground as well the respondents were not entitled to any relief as it
has been handed down to them through the impugned judgment.
30. Very vehemently objection has been raised by
the learned counsel for the appellant-Bank that the respondent-employees are
guilty of laches and the learned Division Bench of the High Court has not
embarked upon this issue.
Laches is a
doctrine whereunder a party which may have a right, which was
otherwise enforceable, loses
such right to the extent of its enforcement if it is
found by the Court of a law that its case is hit by the doctrine of
laches/limitation. Right remains with the party but it cannot enforce it. The
limitation is examined by the Limitation Act or by special laws which have
inbuilt provisions for seeking relief against any grievance within the time
specified under the law and if party aggrieved do not approach the appropriate
forum within the stipulated period/time, the grievance though remains but it
cannot be redressed because if on one hand there was a right with a party which
he could have enforced against the other but because of principle of limitation/laches,
same right then vests/accrues in favour of the opposite party.
It is settled
principle of our jurisprudence as well that delay defeats equity and that
equity aids the vigilant and not the indolent. In the case of Jawad Mir
Muhammadi v. Haroon Mirza (PLD 2007 SC 472), a full Bench of this Court has
held that laches per se is not a bar to the Constitutional jurisdiction and
question of delay in filing would have to be examined with reference to the
facts of each case; question of delay/laches in filing Constitutional petition
has to be given serious consideration and unless a satisfactory and plausible
explanation is forthcoming for delay in filing Constitutional petition, the
same cannot be overlooked or ignored subject to facts and circumstances of each
case.
In this very
case reference has also been made to words of Lord Camden L.C. from the
judgment of Smith v. Clay (1767) 3 Bro. C.C. 639n at 640n wherein it has been
observed that "a Court of equity has always refused its aid to stale
demands, where a party has slept upon his right and acquiesced for a great
length of time; nothing can call forth this Court into activity, but
conscience, good faith, and reasonable diligence, where these are wanting the
Court is passive, and does nothing". Cited judgment also refers to a book
titled Snell's Equity by John Meghee 13th Edition, wherein at page. 35 it has
been observed that "the doctrine of laches in Courts of equity is not an
arbitrary or a technical doctrine; where it would be practically unjust to give
a remedy, either because the party has, by his conduct, done that which might
fairly be regarded as equivalent to a waiver of it, or where by his conduct and
neglect he has, though perhaps not waiving that remedy, yet put the other party
in a situation in which it would not be reasonable to place him if the remedy
were afterwards to be asserted in either of these lapse of time and delay are
most material".
In Member
(S&R)/Chief Settlement Commissioner v. Ashfaque Ali (PLD 2003 SC 132), this
Court has held that "writ jurisdiction is undoubtedly discretionary and
extraordinary in which may not be invoked by a party who demonstrates a style
of slackness and laxity on his part ................. law
is well-settled that a party guilty of gross negligence and laches is not
entitled to the equitable relief."
In S.A. Jameel
v. Secretary to the Govt. of the Punjab (2005 SCMR 126), this Court while
addressing the question of laches has observed that "there is marked
distinction between delay in filing of a legal proceeding within the period
specified under the provisions of Limitation Act, 1908 and undue time consumed
by a party in filing of Constitutional petition, for which no statutory period
is prescribed under the law; in the former case, delay of each day is to be
explained by furnishing sufficient cause for enlargement of time and
condonation of delay within the contemplation of Section 5 of the Limitation
Act whereas in the later case lapse of time or the question of laches has to be
examined on equitable principles for the reason that the exercise of
Constitutional jurisdiction is always discretionary with the Court and the
relief; so granted is always in the nature of equitable relief in case if the
Court finds that the party invoking writ jurisdiction of the High Court is
guilty of contumacious lethargy, inaction, laxity or gross negligence in the
prosecution or a cause for enforcement of a right, the Court would be justified
in non-suiting such person on the premise of laches" (emphasis provided).
Hon'ble Mr. Justice Rana Bhagwandas (as he then was), also relied upon the
following para of Pakistan Post Office v. Settlement Commissioner (1987 SCMR
1119):--
"There is
absolutely no justification to equate laches with statutory bar of limitation.
While the former operates as a bar in equity, the latter operates as a legal
bar to the grant of remedy. Thus, in the former, all the dictates of justice
and equity and balance of legitimate rights are to be weighed, in the latter,
subject to statutory relaxations in this behalf; nothing is left to the
discretion of the Court. It is a harsh law. Thus, passage of time per se brings
the statute of limitation in operation, but the bar of laches does not deny the
grant of right or slice the remedy unless the grant of relief in addition to
being delayed, must also perpetuate injustice to
another party. It is also in this very context that the condonation of delay
under Section 5 of the Limitation Act will be on different harder
considerations than those in a case of laches. For, example, while it is
essential to explain and condone the delay of each day vis-a-vis statutory
limitation, there is no such strict requirement in cases of laches."
The doctrine of
laches was also under discussion and dealt with by Privy Council in the judgment
reported as John Objobo Agbeyegbe v. Festus Makene Ikomi (PLD 1953 PC 19) where
the Lord Oaksey quoted the following para from Erlanger v. New Sombrero
Phosphate Company (1878 LR 3 AC at page 1279):--
"In Lindsay
Petroleum Company v. Hurd (LR 5 PC 239) it is said:
`The doctrine of
laches in Courts of Equity is not an arbitrary or a technical doctrine. Where
it would be practically unjust to give a remedy, either because the party has,
by his conduct done that which might fairly be regarded as equivalent to a
waiver of it, or where, by his conduct and neglect he has, though perhaps not
waiving that remedy, yet put the other party in a situation in which it would
not be reasonable to place him if the remedy were afterwards to be asserted, in
either of these cases lapse of time and delay are most material. But in every case if an argument against relief, which otherwise
not amounting to a bar in any statute of limitations, the validity of that
defence must be tried upon principles substantially equitable. Two
circumstances always important in such cases are the length of the delay and
the nature of the acts done during the interval, which might affect either
party and cause a balance of justice or injustice in taking the one course or
the other, so far as relates to the remedy."
In the instant
case doctrine of laches will have double force against the respondent-employees
because in the first instance they could not prove or show the infringement of
any right as held by us in the preceding paras hereinabove and secondly because
they are guilty of laches in approaching the legal forum in for redressal of
their grievance, if at all they had a legal and genuine grievance.
31. Finally, we must refer to the conduct of the
respondent-employees in the instant case. Most of them willingly opted for the
Scheme, coupled with the fact that they were given four weeks time to ponder
over it and were supplied the printout of their approximate entitlement, to
which they accepted without any objection and received the amount as determined
against their individual entitlement; thereafter, they remained silent with no
objection for more than six years as the Scheme was acted upon in the 1997 but
they for the first time approached the Service Tribunal in the year 2004, which
by itself was a sufficient ground to non-suit them.
For the
foregoing reasons, this appeal is allowed, consequently, the impugned judgment
dated 7-12-2010
passed by the High Court of Sindh, Karachi is set aside. No order as
to costs.
(R.A.) Appeal accepted
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