THE HIGH COURT OF SINDH, KARACHI
Constitution Petition No.D-3445 of 2012
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Date Order with Signature(s) of Judge(s)
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Present:
Muhammad Ali Mazhar, J.
Abdul Maalik Gaddi, J.
Iffat Ara Hassan
widow of (late) S.M.
Manazir Hassan & others …………… Petitioners
Versus
The President,
National Bank of Pakistan …………… Respondent
1. Fororder on CMA No.16634/2016
2. For hearing of Main Case.
Date of hearing : 18.10.2016
Malik NaeemIqbal& Mr. Faizan H. Memon,Advocates for Petitioners.
Chaudhry Muhammad Ashraf & Mr. Amir Latif, Advocates for the Respondent.
JUDGMENT
Abdul MaalikGaddi, J.–Through instant constitution petition, filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioners have sought following relief(s):-
(a) To direct the respondent President of National Bank of Pakistan to make payment of the frozen privilege leave (PL) balance as per directives of the circular as approved by the Board of Directors of the respondent vide Circular No.37/1999 dated 16.06.1999;
(b) To direct the respondent Bank and its concerned officers/high authority to pay Rs.1.5 Million (Rupees One Million and Five Hundred Thousand Only) per head/each petitioner including legal heirs of the deceased retired employees who had been retired by the respondent Bank;
(c) To restrain the respondent, its employees, officers, departments, banks and its branches, servants, subordinates, Board of Directors, or any other person or persons not to temper the record lying will the respondent and its authorities and further restrain them not to change, alter, amend or issue any further/fresh circular in respect of Frozen leave/accumulated leave/privilege leave (PL) balance till decision of the above petition and if it does so then the same will not be applicable in case of present petitioners/retired employees and legal heirs of deceased employees of respondent Bank;
(d) Any other relief or relieves which this Hon’ble Court may deem fit and proper under the above said prevailing circumstances.
2. The brief facts leading to filing of instant constitution petition are that petitioners No.1(A) and (B) are the legal heirs of S.M. Manazir Hassan and all other petitioners are retired officers of National Bank of Pakistan. During the course of their employment through a decision made on 16.06.1999 by virtue of Instruction Circular No.37 of 1999, the privilege leave on the unutilized amount was frozen with effect from 31.12.1998 for encashment at the time of retirement. The grievancesof the petitioners are that they were not granted this privilege leave at the time of their retirement and they are entitled to the same.For the sake of convenience, it would be proper to reproduce detail of the petitioners and their date of retirements, which reads as follows:-
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SR.NO. |
NAME |
DATE OF RETIREMENT |
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1. |
S. M. Manazir Hassan since deceased through his legal heirs |
04th July, 2003 |
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2. |
Rahimuddin |
03rd March, 2006 |
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3. |
Syed Najamuddin |
14th October, 2007 |
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4. |
Syed Fazal Aziz |
14th August, 2010 |
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5. |
Masroor Ahmed |
30th October, 2010 |
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6. |
Sikandar-e-Azam |
04th August, 2011 |
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7. |
Ayazuddin Khan |
30th June, 2007 |
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8. |
Mehmood Ahmed |
07th November, 2011 |
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9. |
Muhammad Yasin |
24th July, 2008 |
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10. |
Niaz-ul-Haq |
14th March, 2011 |
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11. |
Syed ZafarHussainNaqvi |
26th December, 2009 |
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12. |
Muhammad Ilyas |
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13. |
WasiqUsmani |
01st March, 2007 |
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14. |
QaziAbid Ali |
12th June, 2012 |
3. The respondent bank filed theircomments bydenying the case and claims of the petitionersand took plea that the Instruction Circular No.37/1999 dated 16.06.1999 was modified by Instruction Circular No.57/1999 dated 29.07.1999, which was superseded by Instruction Circular No.54/2002 dated 14.09.2002, therefore, the prayer for the implementation of Instruction Circular No.37/1999 dated 16.06.1999 is not tenable. It is also stated in the comments that the policy decisions being made in year 1999 and 2002 having been acted upon and accepted by all including the petitioners cannot now be made subject matter of this petition after elapse of more than one decade. It is also added in the comments that all the petitioners have been retired on the given date as stated above and this petition has been filed on 25.09.2012,which is on the face of it appears to hit by the principle of laches.
4. Learned counsel argued that the petitioners claim the balance frozen privilege leave (PL) balance in their favour as per directives of the Circular as approved by the Board of Directors of the respondent vide Circular No.37/1999 dated 16.06.1999 and in this regard several applications were made, however, nothing was forthcoming from the respondent, hence, present petition has been filed. Learned counsel while arguing the matter draws our attention towards Circular No.37/1999, which relates to leave/leave encashment and has contended that bare perusal of serial No.1(a)(i) of part IV of the said circular, it is manifest that privilege leave (PL) balance as on 31.12.1998 will be frozen for encashment at the time of retirement. Per learned counsel, the unambiguous language of this part manifests that PL will be frozen as on 31.12.1998 and will not accumulate in future even if not utilized. However, frozen leave as on 31.12.1998 will be enchased at the time of retirement and the petitioners are aggrieved with non-encashment of balance frozen leave as on 31.12.1998. Per learned counsel Circular No.54/2002 pertains to LPR only and has nothing to do with the balance frozen leave. Whereas Circular No.57/1999 pertains to only encashment of balance frozen leave, which has been curtailed upto 180 days. Per learned counsel, this petition does not suffer from the principle of laches as the petitioner No.14 retired in June, 2012, whereas the present petition filed in September, 2012. In the last and in view of his submissions, he has prayed for allowing this petition.
5. Learned counsel for the respondent bank while arguing the matter has placed his much reliance on the comments filed by respondent and contended that Instruction Circular No.37/1999 dated 16.06.1999 was modified by Board of Directors of respondent bank under Instruction Circular No.57/1999 dated 29.07.1999, which was subsequently superseded by Instruction Circular No.54/2002 dated 14.09.2002, therefore, the prayer for the implementation of Instruction Circular No.37/1999 dated 16.06.1999 is not tenable. He further submits that in this petition, all the petitioners have been retired on different dates as stated above and the petitioner No.14 was retired on 12.06.2012 by claiming their rights on the basis of Circular No.37/1999 dated 16.06.1999 and during this intervening period, they remained mum and did not agitate their rights on the basis of said circular and according to him, no right has been violated of the petitioners, therefore, this petition is also hit by principle of laches and the same is liable to be dismissed on this ground. In support of his contention he has relied upon the case of Capt. (Retd.)Mukhtar Ahmed Shaikh v. Federal Government of Pakistan reported as 2013 PLC (C.S.) 380 and unreported Judgment of this Court in C.P. No.D-836 of 2013.
6. We have heard the arguments of learned counsel for the parties at length and perused the record.
7. That only issue requiring adjudication in this petition is with regard to encashment of balance frozen leave on the basis of Instruction Circular No.37/1999 dated 16.06.1999. A bare perusal of serial 1(a)(i), 1(b) and 1(i) of part IV of the said circular manifest that privilege leave balance as on 31.12.1998 will be frozen for encashment at the time of retirement and through this circular it was decided by the Board of Directors as under:-
“1. LEAVE:
a) Privilege Leave (PL)
(i) PL balance as on 31.12.1998 will be frozen for encashment at the time of retirement.
(b) Sick Leave (SL)
Unavailable SL will be accumulated and become part of the Leave balance as on 31.12.1998.
(i) Leave Preparatory to Retirement (LPR)
Maximum 365 days, if available in the employee’s Leave Account may be availed as LPR.”
It appears from the record that the above circular was clarified and modified vide Instruction Circular No.57/1999 dated 29.07.1999. For the sake of convenience, it would be advantageous to reproduce relevant clauses of the said circular, which reads as under:-
“i) It can be availed as LPR upto 365 days or in lieu thereof encashedupto a maximum of 180 days at the time of retirement subject to availability.
i) It can be availed with prior sanction in spells of not exceeding 300 days including Ex-Pakistan Leave.
ii) A proper record of leave balance as on 31.12.1998 and subsequent availment of leave out of the said balance should be maintained.”
8. We have perused the Circular No.54/2002 dated 14.09.2002, the Board of Directors of the Bank decided inter alia as under:-
“1) Subject to the decision of the competent authority, an employee will be entitled to avail leave preparatory to retirement or avail encashment of leave preparatory to retirement (on attaining the age of superannuation or on completion of 30 years qualifying service). For this purpose, an employee who wishes to avail cash compensation in lieu of leave preparatory to retirement should submit an application in writing 15 months prior to the date of his retirement to the competent authority for approval or otherwise. The amount of leave encashment would be 50% of the balance leave, which shall not exceed 180 days.
2) Notwithstanding the above provision where the competent authority has allowed for availment of encashment of LPR it may at any time relieve from duty such an employee but it shall not prejudice or curtail the emoluments and benefits to which such employee has become entitled and it will continue to be paid till the age of superannuation.
3) An employee who does not make an application for encashment of leave preparatory to retirement within specified time shall proceed on LPR with the approval of competent authority. Such employees shall not be entitled to payment of leave encashment.
4) Subject to proviso to para 1, the employee who has been allowed encashment of LPR shall perform duty till the age of superannuation and no leave during this period shall be permissible except for performing Hajj or Ziarator case of sickness supported by medical certificate.
5) All rules regarding encashment of leave preparatory to retirement shall be stand superseded by this policy with effect from 1st April, 2002.”
9. It appears that as per decision of the Board of Directors of respondent bank contained in Circular No.37/1999, all privilege and sick leave as on 31.12.1998 (a) stood frozen, (b) no further accumulation except as contained in 1(a)(ii), (c) the frozen leave to be encashed at the time of retirement and (d) maximum 365 days, if available in the employee’s leave account could be availed as LPR.
10. The effect of the changes brought about through Circular No.57/1999 are (a) if LPR to the extent of 365 days is not availed then encashment to the extent of 180 days was allowed, (b) frozen leave as on 31.12.1998 was allowed to be availed in spells of not exceeding 300 days and (c) proper record of leave balance as on 31.12.1998 and subsequent availment of leave out of the said balance was directed to be maintained.
11. We have also perused the Circular No.54/2002 dated 14.09.2002, which shows that encashment of LPR was further modified and clarified whereby it was made pre-requisite that retiring employee if wishes to avail cash compensation in lieu of LPR then he will have to opt for the same through application fifteen (15) months prior to the date of retirement which condition was not in the earlier circulars and this Circular No.54/2002 supersedes all the earlier policies on encashment of LPR. After going through the above referred three (03) circulars, the overall effect and impact are as under:-
(i) PL & SL as on 31.12.1998 stood frozen,
(ii) Further accumulation stopped,
(iii) Availment of the frozen leave in the spells of 300 days allowed and
(iv) No encashment of balance frozen leave except maximum 180 days if LPR is not availed.”
12. In view of the above policy decisions of the Board of Directors of respondent bank, this petition appears to not maintainable. The issue involved in this petition is a past and closed transaction beside the Instruction Circular No.37/1999 dated 16.06.1999 was modified by the Instruction Circular No.57/1999 dated 29.07.1999, which was superseded by Instruction Circular No.54/2002 dated 14.09.2002, therefore, under the circumstances, the prayer for the implementation of Instruction Circular No.37/1999 dated 16.06.1999is not maintainable.As observed above, all the petitioners have been retired from their services and the policy decision being of 1999 and 2002 having been acted upon and accepted by the petitioners cannot now be made subject matter of this petition after the elapse of long time.
13. As per record, it appears that the petitioners No.1 to 13 have been retired in between 2003 to 2011on different dates as stated above, whereas, the petitioner No.14 has been retired on 12.06.2012and the issue involved in this petition pertains to year 1999 and this petition has been filed on 25.09.2012 and during this intervening period, these petitioners have not made any efforts/steps for claiming their rights at an early time. During the course of arguments, we have specifically asked the question from the learned counsel for the petitioners that why the petitioners did not immediately claim their rights on the basis of Instruction Circular No.37/1999 dated 16.06.1999, no plausible explanation with him. Even otherwise, laches has also not been explained in the memo of petition. Furthermore, it is not the case of the petitioners that they have not received their retirement benefits at the time of their retirement. It means that the petitioners have been received all the outstanding dues at the time of their retirementand at present no claim for any amount is outstanding against respondent bank, therefore, under these circumstances, this petition is also hit by principle of laches. The Hon’ble Supreme Court in the case of Jawad Mir Muhammad and other v. HaroonMirzaand others reported as PLD 2007 Supreme Court 472 in paragraph No.27 of the aforesaid judgment has held as under:-
“27.The next issue which requires consideration is whether constitutional petition filed by the appellant was hit by laches and was liable to be dismissed on this ground. The High Court in its judgment observed that there was delay of 16 months in filing the constitutional petition. Mr. NaeemurRehman strenuously contended that a constitutional petition involving violation and infringement of fundamental rights of the citizens could not be thrown out on the ground of delay in filing the same and heavily relied on the observations of this Court in the case of ArdeshirCowasjee v. Karachi Building Control Authority 1999 SCMR 2883. From a perusal of the judgment in the cited case it is observed that this Court while dilating on the question of laches held that laches per se is not a bar to the constitutional jurisdiction and a question of delay in filing would have to be examined with reference to the facts of each case. It was finally concluded that laches of several years could be overlooked if the facts of the case and dictates of justice so warranted or laches of few months may be fatal. It is a settled proposition “that the delay defeats equities or equity aids the vigilant and not the indolent”. Relying on the above maxim this Court as well as High Courts of the Country have refused to come to the aid of a party who had not been diligent, vigilant and acted in a prudent manner.”
Here in this case, claim of the petitioners pertain to year 1999 under Instruction Circular No.37/1999. All the petitioners have been retired in between 2003 to 2012 and nothing on record that they have not received their retirement benefits at the time of their retirement.
14. In view of the above, it reveals that the issue which is subject matter of this petition is past and closed transaction, hence, the same cannot be agitated through this constitution petition. The petition is dismissed accordingly alongwith listed application.
Karachi
Dated: 11.01.2017
JUDGE
JUDGE
Faizan A. Rathore/