IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

C.P. No. D-1257/2019

 

                Before:

Mr. Justice Adnan-ul-Karim Memon

         Mr. Justice Yousuf Ali Sayeed

 

 

            Syed Anwar Ali Shah ………..………………….………. Petitioner

 

V/s

 

            M/s. Zarai Tarqiati Bank Ltd. and others.....………. Respondents

 

 

 

Date of hearing                    :  07TH July, 2020.

Date of Decision                  :  16TH July, 2020.

Petitioner                               :  In person

Respondents No. 1 to 3      :  Mr. Fayyaz Ahmed A. Soomro, Advocate

   along with Mr. Ali Raza Pathan, Assistant

   Attorney General

 

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O R D E R

 

 

Adnan-ul-Karim Memon, J: By invoking the extraordinary constitutional jurisdiction of this Court under Article 199 of the Constitution of Pakistan, the petitioner has approached this Court with the prayer that the Respondent-Bank may be directed to grant all the pensionary benefits as directed by the learned Federal Service Tribunal vide judgment dated 14.12.2012 in Appeal No.686(R)CE/2006 (Re-Sayed Anwar Ali Shah vs Zarai Tarkiyati Bank Limited and others), maintained by the Honorable Supreme Court vide order dated 11.4.2013 in Civil Petition No.364 of 2013. For convenience sake an excerpt of the judgment dated 14.12.2012 passed by the learned Federal Service Tribunal is reproduced as under:

“10.     The upshot of the above discussion is that there is no doubt the appellant has been treated discriminately. Therefore we consider it necessary that a direction be issued to the respondent Bank to decide the claim of the appellant strictly in the light of aforementioned Judgment of Hon'ble Sindh High Court Karachi dated.5.5.2009 as well as in the light of findings of Wafaqi Mohatsib dated.29.7.1995 given in the case of MR. M. Jurial Mirani. The process shall be completed within a period of three month from the date a copy of Judgment is received in the office of respondents.” 

2.         Brief facts of the case as per pleadings of the parties are that Petitioner joined respondent-Banks’ service as stenographer in 1970 and his post was upgraded as EAD with effect from 01.04.1980. During his service tenure he was charge sheeted in 1984 and was dismissed from service vide office order dated 10.9.1985. He being aggrieved by and dissatisfied with the dismissal order filed statutory appeal before learned Labour Court Sukkur, and finally was reinstated in Service vide office Order dated 01.11.1989 without back benefits and after reinstatement in 1989 he was assigned Seniority along with his batch mates. He was promoted as A.D with effect from 01.01.1992, later on proforma seniority was granted to him with effect from 01.01.1990 vide OM dated 23.9.1997. Petitioner has averred that his colleagues namely Mr. Ali Muhammad Jamali, Nisar Ahmed Shaikh, Mr. Fazal Mehmood, Mr. Muhammad Younas, Muhammad Shafi, Muhammad Jurial Mirani, and Mr. Ameer Hassan Zaidi facing similar circumstances have been paid amounts of provident fund accumulated in their respective fund accounts along with retirement benefits whereas he has been deprived of the same without any justification under the law. Petitioner further added that his pay has not been fixed as per his seniority and promotion and finally prayed for awarding his pensionary benefits as per the orders passed by the learned Federal Service Tribunal vide judgment dated 14.12.2012 in Appeal No.686(R) CE/2006 (Re-Sayed Anwar Ali Shah vs Zarai Tarkiyati Bank Limited and others), maintained by the Honorable Supreme Court vide order dated 11.4.2013 in Civil Petition No.364 of 2013. An excerpt thereof is reproduced as under:

“we feel that in view of the above observations the
Federal Service 'Tribunal, the petitioners could have conveniently
disposed of the matter departmentally but instead of following the
directions/observations of the Court, litigation up to this Court has
been promoted by instituting the instant petition without any
justification. There must be difference between an ordinary
litigant and a litigant who represents an Institution. There should
not be any question of ego or showing arrogance to the litigant, particularly, one who had been an employee of the Institution.
Apparently, no adverse order has been passed because it is for the
petitioners/ Bank to take a decision following the direction which
has been made in the judgment of the learned High Court of
Sindh quoted therein but by ignoring such clear direction, the
petitioners had decided to pursue a remedy under Article 185(3)
of the Constitution of the Islamic Republic of Pakistan, 1973,
which is available exceptionally and not in every case leave is
granted in routine or as a matter of right. Therefore, under the
Circumstances, we feel that for such reasons, the institution
should not be responsible but the person who without applying its
independent mind in respect of facts and circumstances and
taking into consideration the tenor of judgment decides to approach the Court knowing fully well that attaching a false scope
of getting the relief is futile.

 

3. Thus, the instant petition is dismissed and eave
declined with a cost of Rs.30, 000/- to be paid to the respondent
within three days by the person who had advised the filing of the
petition before this Court.”



3.         We have noticed that Petitioner filed C.P. No.D-846/2006 before this Court, with the prayer for conversion of his EPF Scheme into GPF Scheme, which was disposed of vide order dated 20.04.2010 with direction to the petitioner to file afresh application/appeal/petition before the learned Federal Service Tribunal (FST); that in compliance thereof, he approached to the learned FST, whereby his EPF account was converted to GPF account vide order dated 01.07.2010; that the Respondent-Bank challenged the order of learned FST before the Honorable Supreme Court, by filing Civil Petition No.2098 of 2010, which was allowed and the matter was remanded back to the learned FST to decide afresh; that after remand of matter, learned FST decided the matter vide judgment dated 14.12.2012 with direction to Respondent-Bank to decide the claim of the petitioner strictly in the light of judgment dated 05.8.2009 passed by this Court  in C.P. No.D-2188 of 2006 as well as in the light of findings of Wafaqi Mohtasib dated 29.7.1995 given in the case of  M. Jurial Merani within a period of three months. The relevant portions of the judgment dated 05.8.2009 passed by this Court in C.P.No.D-2188 of 2006 and findings of Wafaqi Mohtasib dated 29.7.1995 are reproduced as follows: -

           “4.         As we have come to the conclusion that petitioner was entitled to
payment of 100% commutation of pension and not the gratuity, therefore, in our view petitioner is entitled to payment of benefit as calculated in the respondent No.2's note dated.13.2. 1998 referred to above minus the amount of gratuity received by him.

           5.          We may note that we have allowed special cost as noted above for the reason that the petitioner has been deprived of his legitimate dues by the respondent No.2 for almost 10 years and had the petitioner claimed interest/profit we would have granted the same to him, which incidentally is not claimed in the petition”

           Findings of Wafaqi Mohtasib

            "5. It is noticed that the printed forms of pay slips dated.8.2.1988 onwards, the EP Fund does not figure at all. This was perhaps due to the fact that all the employees by that time came to G.P. Fund/Pension scheme and no one remained on E.P. Fund. The overwhelming evidence is that the complainant had exercised his option in pursuance of P.D. Circular dated 05.01.1984 and it was acted upon. Therefore it is directed that consequential action of grant of pension should be taken immediately. Compliance report to be submitted within two weeks of the receipt this"

That respondent-Bank being aggrieved by and dissatisfied with the order of learned Federal Service Tribunal assailed before the Hon’ble Supreme Court by filing Civil Petition No.364/2013, which was dismissed with a cost of Rs.30,000/- to be paid to the petitioner.

4.         The petitioner who is present in person, at the very outset, submits that the Respondent-Bank has not paid all the service liabilities including pensionary benefits accumulated in Petitioner’s provident Fund Account; that he was dismissed from service as such remained out of service with effect from 09.09.1985 to 01.11.1989 and thereafter, he was reinstated in services by the Respondent-Bank in compliance of order dated 01.11.1989, passed by Presiding Officer, Sindh Labour Court No.VII, Sukkur. In this regard, he approached the Respondent-Bank for his accrued benefits during the period of his dismissal from the service, however, the same has not yet been accorded; that the Respondent-Bank in spite of judgments/orders of the competent Courts did not decide his claim; The Petitioner further added that the issue of pension is a fundamental right as enshrined in the Constitution, 1973 and the Respondents cannot deny the rights accrued to him. He further narrated that the learned Federal Service Tribunal vide its Judgments dated 14.12.2012  allowed all the back benefits to the Petitioner, which have been denied to him by the Respondent, which according to him is a violation of Article 9, 23, 24 and 25 of the Constitution of the Islamic Republic of Pakistan 1973; that the Petitioner has been discriminated by allowing all the back benefits of the intervening period to the colleagues of the Petitioner who retired from their service; that the Respondents have not complied with the order dated 11.4.2013 passed by the Honorable Supreme Court in Civil Petition No.364 of 2013 as well as this Court as discussed supra, therefore, is entitled to retirement dues and other ancillary benefits as given to the colleagues of the Petitioner by the Respondent-Bank, which are as follows:-

1.         Continuity in service

2.         Correct fixation of Pay

3.         Correct Restoration of performs Seniority

4.         Grant of move over on reaching maximum of scale or after eight (08) years

5.         Grant of Promotion illegally not given from due date with juniors.

6.         Grant of mover over on reaching maximum of scale or after eight (08) years.

7.         Correct fixation of Pension with 38 years qualifying service

8.         Refund of illegally deducted provident fund amount from pension.

9.         Refund of illegally paid/not paid transfer benefits but deducted.

            i)          On transfer from ZTBL Sukkur to ZTBL BWLIpur Paid not deducted.

            ii)         On transfer from ZTBL Z.O. Bwlpur to Uch Shareef …… not paid

            iii)        On transfer from ZTBL Uch Shareef to ZTBL Yazman …….. not paid.

09)      Refund of medical expenses paid but no deducted from pension.

10)      For grant of Group Insurance.

 

 5.        Conversely, learned Counsel representing the Respondents has contended that the claim of the petitioner regarding conversion of retirement benefits from Employees Provident Fund Scheme (EPF) to General Provident Fund (Pension Scheme) has already been accorded in compliance with the judgment dated 14.12.2012, passed by learned Federal Service Tribunal, Islamabad; that the petitioner was dismissed from service as such remained out of service for the period i.e. 09.09.1985 to 01.11.1989 and was reinstated in service without back benefits as the period of dismissal was treated as Extra Ordinary Leave (EOL) without pay. Learned Counsel further submits that in the light of Hon’ble Court’s decision, his pay with incremental benefits has been provided; besides, the revision of pay scales was revised/re-fixed vide Office Memorandum dated 04.04.2017 and at present nothing is outstanding or pending to be paid to the petitioner; that once the employee converted to the pension scheme (G.P. Fund Scheme) for pensionary benefits under pension scheme contribution made by the bank (EPF bank contribution) is not allowed under GP fund rules. Learned Counsel further emphasized that in compliance with Court’s order the services of the petitioner were switched over from EPF/Gratuity Fund to Pension/GPF Scheme and in this regard, the Respondent-Bank recalculated all pensionary benefits as admissible under pension fund scheme and paid the revised benefits. In the last, he submitted that the instant petition is not maintainable and is liable to be dismissed, as the petitioner is not entitled to any relief as prayed.

6.         We have considered the submissions of the parties and have also gone through the entire record carefully.

7.         On merits, in pith and substance, prima facie the case of the Petitioner revolves around the following issues:

i)   Whether Petitioner is entitled to receive a pension from the Respondent-Bank in view of the decision dated 14.12.2012 of learned Federal Service Tribunal in Appeal No.686(R) CE/2006 (Re-Sayed Anwar Ali Shah vs Zarai Tarkiyati Bank Limited and others), maintained by the Honorable Supreme Court vide order dated 11.4.2013 in Civil Petition No.364 of 2013.

ii)         Whether the Respondent-Bank can deduct the amount from the pensionary benefits of the petitioner after his retirement in the year 2013.

iii)        Whether the Petitioner is entitled to the back benefits for the intervening period from 23.1.1985 till his reinstatement in service by the order of learned Labour Court vide order dated 01.11.1989 and his subsequent retirement on 13.04.2013, which has been treated by the Respondent-Bank as extraordinary leave without pay and allowances.

 

8.         In the light of above, we are of the considered view that the issue of Back Benefits has been finally settled by the learned Federal Service Tribunal vide judgment dated 14.12.2012 in Appeal No.686(R) CE/2006 (Re-Sayed Anwar Ali Shah vs Zarai Tarkiyati Bank Limited and others), maintained by the Honorable Supreme Court vide order dated 11.4.2013 in Civil Petition No.364 of 2013, therefore, we cannot take a contrary view. At this juncture, petitioner pointed out that the Honorable Supreme Court in the earlier round of litigation in the case of the petitioner (Re- Muhammad Anwar versus The Secretary, Establishment Division, Rawalpindi and 2 others) PLD 1992 SC144 has already granted the benefit of Move-over to him and held as under:

“In the present case undoubtedly the appellant had to his credit two "good" reports, the remaining three reports were "average". Accordingly, looked at from this angle there being no impediment, move-over had to be granted to him. The entire picture regarding Government instructions in this behalf was not taken into account by the Tribunal and thus this appeal merits to be allowed on this ground alone.

However, even with regard to the reasoning in the impugned judgment relating to the connotation of expression "generally good" that should be equated with the technical "good", the prefixing of the word "generally" itself conveys that in case of "generally good" the word "good" would not be taken to its technical extreme. It would not be expected in case of "generally good" that the civil servant should get formally "good" reports. If there is no adverse report against him and he gets "average reports" they would have to be treated as "generally good" for purpose of move-over. Because a report "average" cannot be treated as adverse unless specifically so treated and then conveyed to the civil servant as an adverse report. Notwithstanding the grading regarding the average in other aspects of civil service, in the context of move-over expression "generally good" would, amongst others, apply to mixed sort of reports containing good and average reports. Thus in the case of the appellant he had earned two specifically "good" reports. There was no adverse report and he had earned also three average reports. The effect of all these reports was "generally good" reports.

Learned counsel could not meet any of the afore-noted points. His reliance on a recent judgment of this Court dated 6-12-1990 in Civil Appeal No.779 of 1989 is of no help as the subject under discussion was not dealt therein and he after citing the same did agree that it was not applicable to the present case.

In the light of the foregoing discussion the impugned judgment is set aside and the prayer of the appellant for move-over from B-18 to B-19 in accordance with the other terms and conditions of his service, is allowed”

 

9.         The plea raised by the learned counsel for the Respondents that Petitioner is not entitled to back benefits for the aforesaid period, we are of the view that Honorable Supreme Court has already dealt with this proposition of law in the case of Superintendent Engineer GEPCO Sialkot Vs. Muhammad Yusuf vide Order dated 23.11.2006 passed in Civil Petition No.1097-l of 2004. In view of the dicta laid down by the Honorable Supreme Court in the case referred supra, we do not agree with the contention of the learned counsel for the Respondent-Bank. The Fundamental Rule 54-A is clear and does not support the case of the Respondents, which provides as under:-

 “If a Government servant, who has been suspended pending inquiry into his conduct attains the age of superannuation before the completion of inquiry, the disciplinary proceedings against him shall abate and such Government servant shall retire with full pensionery benefits and the period of suspension shall be treated as period spent on duty.”

 

10.    Even otherwise the aforesaid plea taken by the Respondents is not tenable in law. It appears from the record that petitioner has qualifying length of service i.e. 38 years to claim his pensionary benefits from the respondent-Bank; they have calculated the pensionary benefits without pay and allowances and other allied benefits as admissible under the law. As per Fundamental Rule 54, no deduction from the pensionary benefits can be made on attaining the age of superannuation. Since petitioner stood retired from respondent-Bank’s service in the year 2013, he cannot be denied the service benefits under the law.

11.       Reverting to the claim of the Petitioner, regarding those officials namely     Mr. Intizar Ahmed and others of the Respondent-Bank as discussed in the preceding paragraph, who received all service benefits, whereas Petitioner is denied the same on the analogy that petitioner was out of Bank’s service as such the service benefits of four years could not be allowed to him with effect from 01.9.1985 to 01.11.1989 that period was treated as EOL without pay which is excluded from qualifying length of service which comes to 34 years rather than 38 years. We are of the considered view that the aforesaid reasoning is highly discriminatory to refuse the genuine claim of the petitioner, as the order of the learned FST endorsed by the Honorable Supreme Court is very clear in its terms, therefore, we reiterate the observation of the Honorable Supreme Court made in the order as discussed supra. The Petitioner is entitled to receive his full pensionary dues under the law, for which the Respondent-Bank has to decide the case of the petitioner for such purpose, without discrimination. In this regard, while placing reliance on the dicta laid down by the Honorable Supreme Court in the case of I.A. Sherwani and others v. Government of Pakistan through Secretary Finance Division, Islamabad and others (1991 SCMR 1041). The larger Bench of learned five members Bench of the Honorable Supreme Court made exhaustive scrutiny with respect to granting of pensionary benefits to a class of retired employees of Executive Branch, who had retired within a particular period, while the same was denied to another class of employees similarly placed, who had retired in another period. Accordingly, while following the principle of law enunciated in I.A. Sherwani’s case (ibid), and in view of the peculiar facts and circumstances of the present case while invoking the jurisdiction conferred upon this Court under Article 199 of the Constitution, we hereby conclude that the Respondent-Bank cannot fix two separate categories for paying the service benefits, only to be paid to the other employees of the Bank i.e. Mr. Intizar Ahmed and others, and excluding the Petitioner is erroneous decision.

12.       We are clear in our mind that Pension is not a bounty from the State/employer to the servant/employee, but is fashioned on the premise and the resolution that the employee serves his employer in the days of his ability and capacity and during the formers debility, the latter compensates him for the services so rendered. Therefore, the right to pension has to be earned and for the accomplishment thereof.

13.       In the foregoing legal position of the case, we are not convinced with the contention of the learned Counsel for the Respondent-Bank that the petitioner has been paid all his retirement benefits according to his entitlement and nothing has been left or denied in this regard; that the petitioner had not been treated discriminately. We do not agree with the reasoning of respondent-Bank for the simple reason that when Honorable Supreme Court has maintained the order of learned FST in Appeal No.686(R) CE/2006 (Re-Sayed Anwar Ali Shah vs Zarai Tarkiyati Bank Limited and others), the respondent-bank cannot deny the back benefits to the Petitioner; therefore he can be given the same benefits as given to other employees referred to hereinabove.

14.       In the light of above facts and circumstances of the case, the instant Petition is hereby disposed of in the following terms:-

i)          The Competent Authority of Respondent-Bank is directed to take afresh decision on the issue of inclusion/calculation of service benefits of the Petitioner in accordance with law and judgment/orders passed by the Honorable Supreme Court of Pakistan, FST and this Court as discussed at paragraph No.11 and award post-retirement benefits/dues, if any, outstanding to the petitioner without discrimination within a period of two months, from the date of receipt of the Judgment of this Court.

ii)         The Petitioner is entitled to receive the amount of Rs.485,170/- (Rupees Four Lac Eight Five Thousand One Hundred Seventy only) along with profit accrued thereon earlier deducted from the pension of the petitioner.

 

  JUDGE

Faisal Mumtaz/PS                                                                                                                    JUDGE