2013 S C M R 238
[Supreme Court of Pakistan]
Present: Tassaduq Hussain Jillani, Tariq Parvez and Mian Saqib Nisar, JJ
TRUSTEES OF THE PORT OF KARACHI—Appellant
ORGANIZATION OF KARACHI PORT TRUST WORKERS and others—Respondents
Civil Appeal No.64-K of 2011, decided on 8th October, 2012.
Anwar Mansoor Khan, Senior Advocate Supreme Court for Appellant.
Munir A. Malik, Senior Advocate Supreme Court for Respondents Nos. 2 to 300.
Date of hearing: 11th July, 2012.
TARIQ PARVEZ, J.–-This appeal by leave of the court is directed against the judgment dated 27-1-2011 passed by High Court of Sindh, Karachi whereby Constitution Petition No.D-2010 filed by the respondents has been allowed.
2. Facts in brief, relevant for disposal of instant appeal, are that the respondents were employees of the Karachi Port Trust/appellant (hereinafter referred to as ‘appellant-Trust’). On 27-2-2004, the appellant-Trust while keeping in view the Federal Government’s Policy of Golden Handshake Scheme, introduced the “Early Retirement/Golden Handshake Scheme 2004 for Karachi Port Trust Officers and employees” (hereinafter referred to as ‘the Scheme’), providing following incentives to the employees, who will opt for the same:–
(a) Employees and officers with more than 10 years of service to get the following benefits:-
(a) Hundred per cent pension commutation in lump sum;
(b) A bonus of five years in service years for each employee and officer for pension commutation calculations; subject to pension rules in vogue;
(c) Fifty per cent leave encashment, maximum of 180 days;
(d) Lump sum payment of Rs. 81,000 for medical expenses for 15 years;
(e) Officers and employees shall be entitled to medical treatment in KPT Hospital only for 30 months from date of release;
(f) Workers (Optees) will be given priority in the allotment of house/plot in the Port Town;
(g) Commutation shall be calculated on the basis of the last charter of demands.
Accordingly the respondents opted for the Scheme; however, a dispute arose when they felt that they had not been extended with the benefit/incentives in terms of clause (g) of the Scheme i.e. commutation after calculating on the basis of the last Charter of Demands. As such they approached the High Court of Sindh, Karachi by way of filing Constitution Petition.
3. Their case before the learned High Court was that as per clause (1) of the last Charter of Demands, submitted in the year 2004, a demand for 100% increase in their salaries was made, therefore, in terms of clause (g) of the Scheme, commutation is liable to be calculated on their salaries after granting 100% increase.
At the converse, the appellant-Trust, while questioning the maintainability of the petition filed by the respondents, took the plea that after the respondents exercise of option for early retirement in terms of the Scheme, a settlement dated 25-6-2005 was arrived at between the management of the appellant-Trust and the then respondent-Union (CBA), wherein the demand of 100% increase in the salaries was not acceded to by the appellant-Trust, as such the respondents are not entitled to the claim being raised by them as their commutation is to be calculated in terms of last pay drawn by them.
It was also argued by the appellant-Trust before the learned High Court that prior to filing of present proceedings before the High Court, item No.1 of the settlement dated 25-6-2005 arrived at between the appellant-Trust and the respondent-CBA, had been subjected to interpretation by the learned High Court in LRA No.6 of 2006 filed by the respondents-employees, whereby the optees of the Scheme were excluded from the benefit of the settlement; that although the said LRA was allowed vide judgment dated 25-2-2008 by the learned High Court and the respondents were held entitled to the benefit of the settlement dated 25-6-2005 but in a petition filed before the august Supreme Court bearing C.P. No. 258-K of 2008, the said findings of the learned High Court were reversed vide judgment dated 26-11-2008 while declaring that the classification made in the settlement appears to be perfectly rational in as much only those employees have been excluded from its benefit who became entitled to substantial benefits under the Scheme; and that against the said judgment a review petition was also filed but without any success; therefore, it was argued that once the matter has been finally set at naught by the august Supreme Court, the respondents cannot re-agitate the same in present proceedings.
4. The learned High Court, however, by means of the impugned judgment dated 27-1-2011 has allowed the petition filed by the respondents and directed the appellant-Trust to calculate the commutation of the respondents in terms of clause (g) of the Scheme by allowing 100% increase in terms of demand No.1 of 2004 as well as to allow other benefits in terms of the Scheme. Hence, this appeal by leave of the Court.
5. Learned counsel for the appellant-Trust has argued that the learned High Court in the impugned judgment has, at the very outset, ignored the exercise of its jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan because there was either factual controversy involved or the Charter of Demands prepared by the respondent-CBA and later on partially accepted by the appellant-Trust, which is a routine in the organization of the appellant-Trust because the practice is that after every two years, initially Charter of Demands is presented by the respondent-CBA, which remains enforce for two years in the terms specified therein but to the extent that the two parties have mutually agreed to it, as such the respondents before the High Court were for enforcement of contractual obligation.
The next submission of the learned counsel is that the Scheme was introduced on 20-2-2004, whereas the employees whose service tenure was covered under the scheme could have applied for voluntary retirement from service on exercise of their option and for exercise of such option cutoff date was fixed to be 15-3-2010; he submits that Charter of Demands for the year 2004-2006 was dated 1-4-2004, therefore, any reference in clause (g) of the Scheme would be to Charter of Demands for the year 2002 and not to the Charter of Demands, which is post-dated to the Scheme.
He next submits that the word ‘Scheme’ has been wrongly interpreted by the High Court by stating that in the earlier round of litigation between the same parties, this Court has already given judgment by interpreting the word ‘Scheme’ benefit of which was not extendable to the respondents.
The learned counsel argues that the learned High Court has misread and misinterpreted that 100% increase of the last salary drawn is payable to the optees under the Scheme; while elaborating his submission, the learned counsel states that factually, after the options were received from the respondents within the cutoff date i.e. 15-3-2004, the appellant-Trust started making payments to the respondents, which process continued between 31-5-2004 to September, 2005; he submits that the respondents have accepted the calculation made by the appellant-Trust towards their financial benefits on the basis of the Scheme and payments so collected have been accepted by the respondents without raising any objection and without any protest. His view is that to the extent of the respondents, the settlement arrived at under the Scheme has been finally acted upon from both sides, therefore, it has become a past and closed transaction.
Lastly, the learned counsel contends that pursuant to submission of Charter of Demands dated 1-4-2004, as per practice there were dialogues between the appellant-Trust and the respondent-CBA, which culminated into agreement dated 25-6-2005, in terms thereof certain benefits were allowed to different categories of employees of the appellant-Trust and such benefits were also given to the employees, who stood retired on attaining the age of superannuation after 1-4-2004 and that in the agreement itself, it was very clearly stated that these benefits will not be available to those who have accepted the Scheme.
6. To rebut the arguments of the learned counsel appearing on behalf of the appellant-Trust, Mr. Munir A. Malik, learned Senior Advocate Supreme Court, representing the respondents has opened his submissions by stating that three terms are to be kept in mind and to be interpreted as they have different connotations, meaning, effect and applications; he categorizes them as: (a) charter of demands; (b) settlement/award; and (c) the Scheme. He has also highlighted that generally after every two years, Charter of Demands is presented by the respondent-CBA to the appellant-Trust and before submitting Charter of Demands on 1-4-2004, the last Charter of Demands was submitted on 1-4-2002 on which a settlement was arrived at between the appellant-Trust and the respondent-CBA on 26-12-2003.
Learned counsel states that since three different words are being used, they have different meanings; like Charter of Demands is prepared every two years by the respondent-CBA; after its submission to the appellant-Trust, then negotiations/dialogue take place between the two parties and finally the settlement/award is agreed upon by them; whereas the ‘scheme’ is a special package announced by the government/Trust and it contains its own terms and conditions having no reference of either Charter of Demands or to the settlement arrived at between the appellant-Trust and the respondent-CBA. He submits that where linkage of the Scheme is very clear and in clause (g) of the Scheme, it was very specifically recorded that “commutation shall be calculated on the basis of last charter of demands”; according to the learned counsel, even if the Charter of Demand of the year 2002 was in force on 20-2-2004, when the Scheme was announced, the demand No.1 in the year 2002 was that there should be increase of 100% in salary, though it was agreed upon that the increase would be only to the extent of 16%. He states that clause (g) of the Scheme refers to the charter of demand and not to the settlement/award/agreement subsequently made; according to him such increase of 16% in the salary, agreed upon between the appellant-Trust and the respondent-CBA, was for those who continued to remain in service but since by introduction of the Scheme, the services of the optees were to discontinue, therefore, they are entitled to the greater benefit and it was therefore that in clause (g), instead of using the word ‘last salary paid’, it has been recorded that it shall be on the basis of last Charter of Demands.
7. Before we dilate upon varied submissions made by the learned counsel for the appellant-Trust and the respondents, it is necessary to give short history of the present appeal in terms of events.
8. Admittedly, the Scheme was introduced on 20-2-2004 and the employees of the appellant-Trust were asked to opt for the Scheme and if anyone of the employees wanted to opt for the Scheme, he was to communicate his exercise of option on or before 15-3-2004 i.e. the cutoff date. When the Scheme was introduced, thereafter on 1-4-2004, the Charter of Demands was prepared and presented before the appellant-Trust, which was a routine matter between the appellant-Trust and the respondent-CBA in order to review service conditions including the emoluments etc. by every two years and it was in this background that earlier to Charter of Demands of 2004, Charter of Demands dated 10-4-2002 was in force/applicable until 31-3-2004. The payments in terms of the Scheme started to be paid to the optees of the Scheme from 31-5-2004 to September, 2005. The payments so calculated were disbursed and were accepted without any protest; however, a settlement was arrived at between the appellant-Trust and the respondent-CBA on 25-6-2005, whereunder against demand No.1 of the Charter of Demands for the year 2002, where 100% increase was demanded in the salaries of the employees of the appellant-Trust, the parties agreed to the increase of salary by 16%; there were some other benefits as well including the private residential plots to the retired or in service employees of the Trust.
Apparently, the respondent No.2, who had by then accepted the terms and conditions of the Scheme and their cases had attained the status of past and closed transaction, approached the High Court of Sindh, Karachi by filing application i.e. LRA No.6 of 2006 under section 61 of the Industrial Relations Ordinance, 2002 (hereinafter referred to as ‘the IRO, 2002’), which Section provides that “if any difficulty or doubt arises as to the interpretation of any provisions of an award or settlement, it shall be referred to the High Court”; the said application was allowed vide judgment dated 25-2-2008 by the learned Single Judge in Chambers of the High Court while holding that “CBA Union although a body representing to the employees cannot at its own without having any prior authority in his favour can curtail secured and guaranteed rights of industrial workers to deprive them from the entitlement of benefits which they are entitled to avail from the settlement arrived on 25-6-2005 having its retrospective effect from 1-4-2004”.
The order dated 25-2-2008 was assailed through Civil Petition No.258-K of 2008 before this Court, which was decided on 26-11-2008 and the question narrowed down by focusing it that whether those employees who had already taken benefit of the Scheme would be entitled to benefit under the settlement dated 25-6-2005 and it was ruled that they are not entitled to because not only they had already accepted the terms and conditions of the Scheme and their cases have become past and closed transaction but also because in the Scheme itself, it was specifically mentioned that the benefit of settlement dated 25-6-2005 would not be available to those employees who had already taken benefit under the Scheme; thus the judgment dated 25-2-2008 passed by the learned High Court was set aside. Order of this Court dated 26-11-2008 was then challenged by filing Review Petition No.1-K of 2009, which was decided on 1-2-2010 and the said review petition was also dismissed; however, an observation was made that in case the aggrieved persons approach the competent forum for redressal of their grievance, such matter shall be decided in accordance with law without being influenced from any of the observations made by this Court in its judgment dated 26-11-2008.
9. It is with this background that the respondents filed Constitution Petition No. D-1926 of 2010 before the High Court of Sindh, Karachi, which was allowed in the terms that the appellant-Trust (respondent before the High Court) was directed to calculate the commutation of the respondents (appellants before the High Court) in terms of clause (g) of the Scheme by allowing 100% increase in terms of demand No.1 of the Charter of Demands of the year 2004 as well as to allow them other benefits in terms of the Scheme.
10. We have noted the submissions of the learned counsel for the parties in the preceding paras.
11. The respondents appear to be not clear in their stance i.e. whether their case is covered under the Charter of Demands of the year 2002 or of the year 2004; moreover, they have admitted in their petition before the High Court that by not calculating the commutation on the basis of last Charter of Demand i.e. 100% increase in salary, the appellant-Trust have violated the provisions of section 37 of the Contract Act, 1872.
Question, therefore, would be whether breach/violation of contract between the two parties could be taken and resolved in Constitutional jurisdiction by the learned High Court. The plea of the respondents is so inconsistent in their petition before the High Court that in para-19 of the Constitution Petition, if on one hand they are claiming commutation towards 100% increase in pay but on the other hand they claim that even they have not been allowed the benefits of latest settlement/agreement/award concluded on the basis of last Charter of Demands wherein 16% increase has been made in their personal/basic pay.
12. Challenge was made to the very maintainability of the Constitution Petition before the High Court by the appellant-Trust by filing an application under Order VII, Rule 11 read with section 151, C.P.C. praying for dismissal of the Constitution Petition on the ground that it was not maintainable; stance of the appellant-Trust (respondent before the High Court) was specifically set up in paras 4-6, which are reproduced hereinbelow for the sake of convenience:–
“(4) That once the question whether the employees retired under Golden Hand Shake Scheme (voluntary)-2004 are not entitled to benefits provided under settlement signed/executed on 25-6-2005, has been decided by the Supreme Court of Pakistan through its pronouncement dated 28-12-2008. Copy enclosed as Annexure “D” with this Application. This Hon’ble Court has no jurisdiction to pass declaration or any decision in respect of subject regarding benefits under Settlement between CBA and Management. The petition is liable to be dismissed on this short ground alone;
(5) That the petitioners opted for retirement (voluntarily) and were retired under Golden Hand Shake Scheme-2004. The retirement benefits including the commutation calculated on the basis of pay as stand on 31-3-2004. That on 25-6-2005 settlement was signed between the KPT Labour (CBA) and the management respondent Karachi Port Trust. A copy of settlement is enclosed and mark as Annexure “B”. The benefits under the settlement were made effective w.e.f. 1-4-2004. However, it was specifically provided and agreed in the settlement between parties that benefits under settlement are not applicable to those employees who opted for retirement under Golden Hand Shake Scheme-2004.
(6) That organization of KPT Workers other office bearer of the sand union filed a Labour Revision Application under section 61 of the IRO, 2002 before the Hon’ble Sindh High Court seeking interpretation of the settlement and claiming that those who opted for Golden Hand Shake-2004 and were in the employment of the Respondent KPT on 1-4-2004 were also entitled to the benefit under the settlement. The Hon’ble High Court allowed the Labour Revision vide its judgment passed on 25-2-2008. A copy of judgment dated 25-2-2008 is enclosed and marked as Annexure “C”. The same was heard on 26-11-2008 and was allowed vide order dated 28-12-2008, whereby the judgment of the High Court passed on 25-2-2008 was set aside. A copy of judgment dated 28-12-2008 is enclosed and marked as Annexure “D”. The Hon’ble Supreme Court in order had categorically held that person who had opted for retirement under Golden Hand Shake-2004 and were even if they were in the employment on 1-4-2004 were not entitled to benefits provide under settlement dated 25-6-2005 reached between CBA and KPT. That Civil Review Petition was filed before Hon’ble Supreme Court of Pakistan against order dated 28-12-2008. However, the same was dismissed vide judgment dated 1-2-2010. The judgment passed on 28-12-2008 in C.P. No.258-K of 2008 was upheld and thus attained finality on the subject issue. A copy of judgment dated 1-2-2010 passed in Civil Review Petition whereby the CPR was dismissed is enclosed and marked as Annexure “E”.”
13. Undoubtedly, there are “three different words/connotations/ terminologies, which require consideration for just decision of this appeal, as spelt out in his arguments by Mr. Munir A. Malik, learned Senior Advocate Supreme Court for the respondents. First is “Charter of Demands”; second is “settlement”; and the third is “Scheme”. Charter of Demands appears to be a permanent feature and practice prevailing between the employer and the employees of the instant case. As admitted by the learned counsel for the respondents that after every two years, fresh Charter of Demands is prepared on behalf of the employees by the respondent-CBA, which contains different demands from the employees; such Charter of Demands is generally presented on 1st of April after every two years and is taken to be operative for two years until 31st March of the year following thereafter, when it was presented. Thus, it is a permanent feature and is presented and prepared irrespective of any other incentives, which either is announced or extended by the Government or by the employer. When such Charter of Demands is presented to the employer, it is normally not acceptable in totality, therefore, same is followed by negotiations and after both the parties reach to some bilateral understanding, the same is accordingly accepted and adopted.
The Charter of Demands is a sort of industrial dispute between the employer and the employees and where there are differences between the two, under section 25 of the IRO, 2002, negotiations are to be held between the employer and the CBA and it is so required under section 25 that on receiving communication of demands/dispute, the parties receiving its shall try to settle the dispute through bilateral negotiations and that under section 61 of the IRO, 2002 if any difficulty or doubt arises as to the interpretation of any provisions of the settlement, it can be referred to the High Court. We are referring to the IRO, 2002 because the same was in force and applicable at the time subject matter of appeal was under consideration because, later on Industrial Relations Act, 2008 was promulgated.
14. Thus from the above, it is clear that Charter of Demands is in fact a sort of dispute, which is presented by one party to the other and the two parties sit together and after negotiation arrive at some settlement. Settlement arrived at between the parties and as adopted, becomes part of the Charter of Demands; we will latter explain as to how once a demand is taken up and partially agreed in settlement, it would be taken as part of the Charter of demands and that the settlement will not be taken as independent document.
15. So far as the Scheme is concerned, same is either introduced by Government or by the employer and has no relevance or bearing over the Charter of Demands. Object of introduction of a Scheme varies from institution to institution. In a Scheme some incentives are extended to the employees to get certain out of turn benefits and shall disassociate themselves with the organization/institution they are working with. The purpose of Scheme, as we have said, could have manifolds; it could be a sort of retrenchment or rightsizing in institution or for the purpose of injecting fresh blood in the organization/institution through premature retirement/removal of the earlier employees or providing opportunities by fresh appointment of young persons who are now akin to the changed economical and industrial trends. The employer either itself or on the direction of the Government, but for the regularization of the establishment, time to time introduces such Scheme, which in the instant case was given the title of “Early Retirement/Golden Handshake Scheme-2004 for Karachi Port Trust Officers and employees”, which was introduced on 20-2-2004, whereunder option of the employees for out of turn retirement was sought for which cutoff date was fixed to be 31-3-2004. Under the Scheme, hundreds of employees opted and their dues were accordingly worked out and were given to them, which were accepted by them without filing any protest.
16. Coming to the facts of this case and to explain the position of settlement where it can be taken independent of Charter of Demands, we may refer to Civil Miscellaneous Application No. 4239 of 2011, on its page-2, where we find Charter of Demands, comprising of 30 pages, which was to commence from 1-4-2002 until 31-3-2004. We refer to this Charter of Demands for the reason that since the Scheme was introduced on 20-2-2004, when the above referred Charter of Demands was in force which was to remain in force until 31-3-2004.
According to this Charter of Demands, demand No.1 was that there should be increase of 100% in the salary/pay scales of all employees but what was agreed upon was that increase shall be to the extent of 16%. We find that this document, which is titled as ‘Charter of Demands’ contains the demands as well as agreement arrived at between the appellant-Trust and the respondent-CBA. It is duly signed by the representatives of the Administrations and representatives of the employees i.e. the President of the CBA and other office bearers; although the Charter of Demands was to take effect from 1-4-2002 and was effective till 31-3-2004 but the date of agreement/settlement as given at page-2 of the Civil Miscellaneous Application, referred to above, is 26-12-2003. No separate settlement could be produced before us, despite our repeated demands, by the learned counsel for the respondents meaning thereby that Charter of Demands after negotiation has been accepted but not in totality, particularly with reference to 100% increase in the salary; the demand and the agreed enhancement were compiled and given in the same document which is called Charter of Demands.
We would come later, upon the applicability of Charter of Demands of 2002-2004 to the case of the present respondents but on the face of it, the Scheme was announced on 20-2-2004 whereas the next Charter of Demands was yet to be filed, which was then filed on 1-4-2004 and for which settlement between the parties was arrived at on 25-6-2005.
Even if one go through the submissions made by the learned counsel for the respondents that as per clause (g) of the Scheme, the respondents were entitled to commutation to be calculated on the basis of the last Charter of Demands and the last Charter of Demands in the case of the respondents even if of the year 2002 or 2004, whether taken to be presented on 1-4-2002 or 1-4-2004, the increase agreed upon and reflected in the same documents i.e. Charter of Demands, either of 2002 or 2004, is only to the extent of 16% and not 100%; because second Charter of Demands dated 1-4-2004, which appears at page 157 of Part-II of the Appeal, even if on one hand contains demand No.1, on the other hand in the same document, it is recorded that the increase is made to the extent of 16%.
Be that as it may, whether the case of the respondents falls within the Charter of Demands of the year 2002 or of the year 2004, but significantly we find that when the agreement dated 26-5-2005 was arrived at, it was specifically mentioned therein that:–
The above in very clear terms shows that agreement dated 26-5-2005 is not applicable to the employees, who had accepted the Scheme and were no longer in the service of the appellant-Trust.
18. The question of laches by approaching the High Court or for that matter to this Court at belated stage, has been sufficiently explained in the order of this Court dated 1-2-2010 passed in Civil Review Petition No. 1-K of 2009, where under it was left open for the respondents to have recourse to the competent forum for redressal of their grievances, which was then taken up in the form of present proceedings by filing Constitution Petition before the High Court.
19. Since on merits, we are clear that the last Charter of Demands, so mentioned in clause (g) of the Scheme, shall be read as was agreed upon and not as the one, which was presented before the appellant-Trust because, at the cost of repetition, we may observe that no separate settlement is on record except the two documents; one appearing at page 2 of the Civil Miscellaneous Application No. 4239 of 2011 i.e. Charter of Demands for the years 2002-2004 and the other is appearing at page 157 of the Part-II of the paper book of Appeal, which is also Charter of Demands but for the years 2004-2006; and both these documents, which are titled as ‘Charter of Demands’ contain the demand followed by settlement, arrived at between the appellant-Trust and the respondent CBA. Even otherwise, as we have held in the preceding paras that it was bilaterally agreed upon between the appellant-Trust and the respondent-CBA (representatives of the respondents) that any settlement arrived at between the employer and employees will not be applicable to such employees, who had accepted the Scheme and are no longer employees of the appellant-Trust, the respondents are not entitled to the claim being raised by them.
20. The jurisdictional issue, in view of above facts and circumstances of the case, was not seriously pressed.
For the foregoing discussion, we allow this appeal and the impugned judgment of the High Court dated 27-1-2011 passed in Const. P. No.D-1926 of 2010 is set aside. No order as to costs.
Tassaduq Hussain Jillani, J.
I concur with the conclusion arrived at in terms of my separate note.
Tariq Parvez, J.
Mian Saqib Nisar, J
Though I agree with the conclusion arrived at by my learned brother but for my own reasons separately set out.
Announced in Court On 8th day of October, 2012.
Mian Saqib Nisar, J.
TASSADUQ HUSSAIN JILLANI, J.–-I had the privilege of going through the opinions of my learned brothers Hon’ble Mr. Justice Tariq Parvez and Hon’ble Mr. Justice Mian Saqib Nisar. In arriving at the conclusions, both have concurred, have allowed the appeal and thereby reversed the impugned judgment of the learned High Court. However, they have given their own reasons to arrive at the same conclusion. I tend to agree with the opinion/reasons given by my learned brother Hon’ble Mr. Justice Mian Saqib Nisar.
Tassaduq Hussain Jillani, J.
MIAN SAQIB NISAR, J.-–I have the privilege of going through the proposed judgment composed by my learned brother Tariq Parvez, J.; though I agree with the conclusion, that the appeal should be allowed, but with due deference to the learned Judge, my reasons for the above are somewhat otherwise.
2. Despite detailed facts having been mentioned in the proposed judgment yet for the purposes of my opinion, I find it expedient to state some fundamental/relevant facts, which are:- that respondent No.1 is a trade union of Karachi Port Trust (K.P.T.) workers, thus a representative body thereof, whereas other respondents are either the ex-employees or the successors-in-interest of such employees of the said Trust. They all joined as the petitioners in the constitution petition filed by them before the Sindh High Court, which has been allowed/accepted through the impugned judgment dated 27-1-2011. And the leave against the above verdict was granted by this Court on 15-6-2011. The case of the writ petitioners (who are the respondents in this appeal) set out in the constitution petition was that, pursuant to a Golden Handshake Scheme (G.H.S.) announced by the K.P.T. on 27-2-2004 which provided certain incentive(s) to its employees for giving up their jobs by attaining early retirement, thus they accordingly applied to avail the said offer by or before cut off date i.e. 15-3-2004. Though they (writ petitioners) have been paid certain dues on account of availing of the G.H.S., but not strictly adhering to the Charter of Demands dated 1-4-2004, as per which they were promised and actually entitled to, rather less amount. In this behalf it was specifically claimed by the writ petitioners that on the basis of the said Charter of Demands, their entitlement was calculable and founded upon 100% increase on the last drawn salaries by them, but contrary thereto, payment has been made calculating the increase to the extent of only 16% thereof. However, in the alternative the respondents also pleaded that even in accordance with the Charter of Demands dated 1-4-2002 their entitlement is on the basis of increase of 100% on the last drawn salary. In this regard the relevant averments of the constitution petition are reproduced below:-
5. “That as stated herein above, the GHS stated that commutation would be calculated on the basis of the last Charter of Demands which at the time of the conclusion of the contract was the Charter of Demands-2004 submitted on 1-4-2004 by the Collective Bargaining Agent, that is, the respondent No.3. In addition to this, another Charter of Demands had also been submitted prior to the 2004 Charter of Demands on 1-4-2002 by the respondent No. 3. The Charters of Demands, amongst other things, stated that salaries of the employees be increased by 100%.”
“14. That in the alternative (emphasis supplied), if it is assumed without conceding the same that the last Charter of Demands was in fact the one submitted on 1-4-2002, even in such a case, the petitioners are entitled to commutation of pension on the basis of a 100% increase in pay scales as written within the said 2002 Charter of Demands itself. Therefore, the same grounds as provided herein the petition and otherwise apply to this paragraph and the situation enunciated herein.”
3. The learned High Court while allowing the constitution petition has accepted the plea of the respondents that they were entitled to be paid under the Charter of Demands dated 1-4-2004 and has held as follows:–
“Since neither the eligibility nor the entitlement of the petitioner to the retirement benefits under the “Scheme” is under dispute, therefore, the only question for consideration is the benefits which were offered by the “Scheme”. Perusal of the Scheme reflects that the respondents under the Policy of Federal Government introduced Golden Handshake Scheme offering certain benefits to its Officers and Employees who voluntary opted for early retirement. Admittedly, optees of the Scheme were offered certain incentive, the relevant are reproduced herein below:-
(g) Commutation shall be calculated on the basis of the last charter of demands (emphasis supplied).”
The respondents have not disputed the entitlement of the petitioner to any of the incentives in accordance with the “Scheme” but have disputed the calculation as provided in clause (g) by asserting that such calculation was to be made on the basis of last salary drawn. Clause (g) provides the calculation of commutation on the basis of the last Charter of Demand and clause (1) of the last Charter of Demand which admittedly was 2004 caters this situation in the following words (emphasis supplied):
“Demand No.1 The following Eight Pay Scales of KPT Employees be changed, moreover, the salary of all employees after 100% increase be fixed according to current procedure and Pay Scale-8 will be self Generated.”
The perusal of the incentives “g” of the “Scheme” in context of clause (1) of the Charter of Demand of 2004 which requires “the salary of all employees after 100% increase be fixed according to the current procedure” had left no doubt in our mind regarding the entitlement of the petitioner for calculation of commutation after 100% increase in the Commutation is not being calculated on the basis of last charter of demands and the only answer which the respondents Representative and counsel could give was that clause “g” of the Scheme is perhaps the result of some mistake on the part of management and it should have been last salary drawn. In our opinion the petitioners have opted for early retirement on the basis of the incentives offered through the “Scheme” and, therefore, the respondents are estopped from retracting from such offer and that too on such a frivolous ground.”
Before proceeding further, it may be pertinent to mention here, that earlier respondents Nos. 1 and 2 (respondent No.1 is the registered trade union of K.P.T, whereas respondent No.2 is an ex-employee of the K.P.T.) had approached the learned Sindh High Court under section 61 of the Industrial Relations Ordinance, 2002 (I.R.O. 2002) for almost an akin relief on the basis of the Charter of Demands dated 1-4-2004 and also impugned a settlement arrived at between the Collective Bargaining Agent (C.B.A.) and K.P.T. dated 25-6-2005, by virtue whereof those ex-employees who had availed voluntary retirement under the G.H.S. were specifically excluded from the benefit of the settlement (the relevant portion of the settlement in Urdu has been reproduced in the judgment of my learned brother). The challenge thereto was primarily on the touchstone of discrimination, and the petitioners of that case succeeded in the matter at the High Court stage. But when the said verdict was assailed by the appellant (K.P.T.) before this Court, it was set aside vide judgment dated 29-12-2008, holding as under:–
“15. In the settlement in question with reference to demand No.1 it was expressly stipulated that the benefits under the settlement would be available to those employees who had “normally” retired after 1-4-2004 and not those who had been relieved under the Golden Hand Shake Scheme. The settlement was entered into on 25-6-2005 and retrospective effect was given only for the benefit of those who had “normally” retired. The addendum extended the benefit to ad hoc and casual workers but once again those having received golden handshake were excluded. It was made explicitly clear that those retiring in normal course constituted a category separate from those relieved under the Golden Handshake Scheme.
16. Having gone through the terms of the Golden Handshake Scheme, we have found that several additional financial benefits were granted to those having opted for voluntary retirement. Evidently, the settlement drew a clear distinction between those retired normally (without the benefit of the scheme) and those opting for retirement under the aforesaid scheme. The benefits under the settlement were only made available to the former category, because the latter had already become entitled to additional financial benefits under the scheme.”
“The optees of voluntary retirement scheme were excluded for good and proper reasons, in view of their having availed substantial benefits under the scheme, which were not available to those retiring in normal course (emphasis supplied) ……………………………”
Indeed a settlement causing invidious discrimination amongst workmen may offend Article 25 of the Constitution and hence unlawful, but as discussed above, when the classification is perfectly fair and rational, no illegality can be attributed.”
Respondents Nos.1 and 2 sought review of the noted decision vide petition (C.R.) bearing No.1-K/2009 which was dismissed on 1-2-2010, the operative part whereof is reproduced as under:–
“The review petition has no merit and is accordingly dismissed. However, in case the aggrieved persons approach the competent forum for redressal of their grievances, the same will be decided in accordance with the law, without taking any influence by the observations made by this Court in the judgment dated 26-11-2008.”
(Note: 26-11-2008 was the date of hearing while the judgment was announced on 29-12-2008)
It is after the dismissal of the review petition, that the constitution petition out of which the present appeal has arisen was filed by the respondents on or after 19th June 2010, by joining two petitioners of the earlier case as the co-petitioners as well. Be that as it may, leave was granted in this case in the following terms:–
“After hearing learned Advocate Supreme Court for the petitioner at some length, we are inclined to grant leave to appeal in this petition to examine whether the learned Division Bench in the High Court of Sindh, while passing its impugned judgment, acted justly, equitably, fairly and in accordance with law in granting requisite relief to the respondents, in terms of its concluding paragraph of the judgment. Order accordingly.”
4. Learned counsel for the appellant has argued that at the time when G.H.S. was announced by the appellant i.e. 27-2-2004 the Charter of Demands dated 1-4-2004 was not even in existence; the said Charter was also not prevalent when the respondents applied to avail the benefit of G.H.S. by the cut-off date i.e. 15-3-2004, therefore, such Charter of Demands shall not be germane for the purposes of calculating the respondents dues under the said scheme; the Charter of Demands dated 1-4-2004 which was propounded by the C.B.A. (of K.P.T.) had no retrospective effect and thus conferred no right upon the employees who had already availed the benefits of the scheme prior thereto; the learned High Court has illegally and unlawfully founded its decision on the basis of Charter of Demands dated 1-4-2004. It is further submitted that in fact, in the Charter of Demands dated 1-4-2002 the C.B.A. had sought 100% increase in the salaries, but on account of a settlement dated 26-12-2003 arrived at between the K.P.T. and C.B.A. this demand was cut down to 16% and said Charter of Demands merged into the aforesaid settlement. Therefore, the persons availing the benefit of G.H.S. could only ask for the dues on account of 16% increase, which amount has been so allowed/given/paid to them; the respondents had received the G.H.S. dues calculated on the basis of the settlement founded on the Charter of Demands dated 1-4-2002 without raising any objection and, therefore, not only the principles of estoppel, waiver and acquiescence were/are attracted to the instant case, the rule of past and closed transaction is squarely applicable thereto. It is also submitted that the respondents in the earlier round of litigation have failed before this Court in the case supra (the decision is reported as Board of Trustees, Karachi Port Trust v. Organization of K.P.T. Workers and 2 others (2009 SCMR 994), thus the constitution petition (out of which this appeal has arisen) initiated by them was/is barred by res judicata and due to the omission of seeking the relief now put forth, in the earlier matter, the instant petition is hit by Order II, Rule 2, C.P.C.
5. Mr. Munir A. Malik, learned counsel for the respondents on the other hand has argued that notwithstanding the fact that the Charter of Demands dated 1-4-2004 was initiated by the C.B.A. subsequent to the pronouncement of the G.H.S. and thus assuming it was inapplicable in the present matter, yet in the Charter of Demands prior thereto dated 1-4-2002, the C.B.A. had asked for 100% increase in the salaries and it is only as per the settlement dated 26-12-2003 that the percentage was decreased to 16% as was mutually agreed upon between the K.P.T. and C.B.A., therefore, as the G.H.S. specifically mention last charter of demands and not the settlement, thus the settlement has no relevance for the determination of the respondents’ entitlement. In this context learned counsel submits that there are three important concepts which are pertinent for the purposes of understanding and for the resolution of the controversy involved herein, such are: Charter of Demand; Settlement/ Award; and the Scheme – He has explained and elaborated these concepts to draw a distinction thereto, and also that those have their own sphere of independent operation and legal implications. In this behalf it is submitted that independent of, or notwithstanding, the Charter of Demands dated 1-4-2004, the settlement dated 26-12-2003 or the subsequent settlement dated 25-6-2005 between the K.P.T. and the C.B.A., the respondents (writ petitioners) as per force of clause (g) of the G.H.S. i.e. “commutation shall be calculated on the basis of the last charter of demands” (emphasis supplied) are entitled to be paid on the basis of 100% increase in their last drawn salaries. The learned counsel has also refuted the submissions of appellant’s learned counsel, about estoppel, waiver etc., res judicata, past and closed transaction and other pleas.
6. Heard. I am of the considered view that the Charter of Demands dated 1-4-2004 has no relevance and application to the case in hand. It was neither propounded nor initiated by the C.B.A. as yet, when the G.H.S. was announced by the K.P.T. on 27-2-2004; it was not in existence even at the time when all the concerned respondents admittedly opted to avail the incentive(s) under the scheme by applying before the cut off date 15-3-2004; no corrigendum or amendment was made in the G.H.S. to make Charter of Demands dated 1-4-2004 applicable to the optees of the scheme after it has come into being. This is also true for the said charter as it does not purport to apply retroactively. Rather from the settlement between K.P.T. and the C.B.A. dated 25-6-2005 which has emerged on account of the Charter of Demands dated 1-4-2004 it is abundantly and unequivocally clear that employees seek voluntary retirement under G.H.S. were avowed not entitled to this charter of demands, and the doubt in this regard if any was thus removed, when the ex-employees falling in the class of the respondents were specifically excluded from the benefits thereof. Thus the case of the respondents on the basis of said charter of demands was absolutely misconceived and unfounded and the learned High Court has committed a serious illegality in relying upon that charter while allowing the relief to the respondents, which decision cannot sustain on its own merits.
7. However, despite the above, as it has been mentioned earlier, that the respondents have also structured their claim in the constitution petition before the High Court on the basis of the Charter of Demands dated 1-4-2002, may be in the alternative. And as it is a cardinal and salutary principle of justice that the Court in appeal can uphold and sustain the decision appealed against or a part thereof or findings on a particular issue/proposition/point by substituting the reasoning (of impugned decision) which is not tenable in law, by its own reasons, therefore while exercising such jurisdiction I find it to be expedient to analyze the claim of the respondents with reference to their alternative plea qua the applicability and entitlement on the basis of Charter of Demands dated 1-4-2002.
8. Obviously for the above purpose, it shall be pertinent to comprehend and elucidate the three concepts mentioned by Mr. Munir A. Malik; the interpretation of the G.H.S., with specific reference to the “last charter of demands” (see clause (g) of G.H.S.); and/or the applicability of the Charter of Demands dated 1-4-2002 and the nature, impact and effect of Settlement dated 26-12-2003 pursuant thereto. For the first proposition, Charter of Demand: is that document/instrument which is propounded/initiated by the C.B.A./Union of the employees etc. submitted to the employer (such as, a corporation/organization/ establishment), in which (the document) the demands of/for the employees are raised, this is usually and in the normal practice done after every two years. However, these demands are neither conclusive/ final nor binding upon the employer, but are only meant for the object of bargaining and confabulations between the two and nothing more.
Settlement/Award: The aforesaid Charter of Demands if not agreed upon by the employer is duly negotiated between the employer and the C.B.A./Union etc, some demands are accepted, some rejected and some are modified, and when/if the above task is accomplished with the mutual consent, it culminates into a settlement which has all the characteristics of a concluded contract between the parties thereto and subject to law is also enforceable. If, however, the differences cannot be mutually resolved, and there is an impasse, stalemate or deadlock and no settlement seems possible, the matter on reference by either of the parties can be settled/resolved in the form of an award by the appropriate forum as provided by the law. Both the settlement and the award have legal sanctity and binding effect on the parties and is enforceable under the law.
Scheme in the context of the present case is the G.H.S. dated 27-2-2004 through which an offer was made by the appellant to its employees to opt for voluntary retirement on the basis of certain incentive(s) promised to them therein; it contained clear terms and conditions of offer, which when accepted and availed by the employees would culminate into a valid and independent binding contract between the K.P.T. and such employee(s). And the appellant (K.P.T.) would be bound to pay the dues and provide other incentives to the respondents employees strictly in terms of such contract.
9. According to clause (g) of the G.H.S. dated 27-2-2004 which has been reproduced above, in unambiguous and unequivocal terms it has been mentioned that whosoever intends to avail the scheme shall be paid the dues on the basis of last (emphasis supplied) Charter of Demands. On the given date incontrovertibly and indisputably the Charter of Demands dated 1-4-2002 was the last in chain. And demand No.1 of the same manifestly postulated:–
It is only on account of due negotiations/deliberations between the C.B.A. of K.P.T. founded upon this charter of demands that a settlement was arrived at between the parties dated 26-12-2003 and the aforesaid demand of 100% increase was settled and decreased at 16%. At the time i.e. 27-2-2004 when the G.H.S. was announced, the settlement in regard to the Charter of Demands dated 1-4-2002 had already been arrived at between the parties on 26-12-2003 (emphasis supplied) and the parties were not oblivions thereto. Yet, in the G.H.S. reference was not made to the settlement, but to the last charter of demands which clearly depict the intention and the spirit behind the G.H.S. that incentives shall not be on the basis of the settlement rather as per the charter of demands, as it is. This is a vital and important aspect of the matter and was/is in line with the object of the Scheme (G.H.S.) to provide the optimum incentives to the employees and make the offer duly attractive, so that maximum employees should be induced to avail it, otherwise there was no charm for the employees to opt for voluntary retirement at the meagre increase of 16% of the last drawn salary. I am not persuaded to hold that the Charter of Demands dated 1-4-2002 when culminated into the settlement between the K.P.T. and C.B.A. on 26-12-2003, such settlement shall still be construed as Charter of Demands for the purposes of G.H.S. and retain the character of Charter of Demands. In my view these were/are two independent and hermetic documents meant to cater different and specific purposes and thus have to be construed and applied accordingly. There is a clear distinction between the Charter of Demands and the settlement as has been elucidated above and when the K.P.T. deliberately chose to make reference to last Charter of Demands in its offer of G.H.S., the obvious intention was to exclude the settlement dated 26-12-2003 arrived at between the parties on the basis of the said charter which though was very much in existence on the given date. This aspect of the matter has alluded the attention of the learned High Court while passing the impugned judgment and the Court has erred in granting the relief to the respondents on the basis of the Charter of Demands dated 1-4-2004, which as stated above was not even in existence at the relevant time and had no retroactive application in any form whatsoever, as mentioned earlier. Therefore, subject to other legal and factual obstacles in way of the respondents, the relief could at the best have been allowed to them by the learned High Court on the basis of the Charter of Demands dated 1-4-2002, even if it was the alternative plea of the respondents.
10. Be that as it may, in the opening part of my opinion I statedly have agreed with the conclusion of the proposed judgment. But my reasons are firstly, all the concerned respondents in between the period 31-5-2004 and September, 2004 have accepted their dues calculated on the basis of 16% increase without raising any conspicuous objection or registering their protest in this behalf, as there are no averments to that effect in the constitution petition, except a bald and unsubstantiated statement, therefore, not only that the respondents are estopped by their own conduct to agitate the claim at a belated stage, rather the rule of acquiescence and waiver shall also stand in their way. Secondly and most important the claim of the respondents, for all intents and purposes, with the flux of time has been rendered barred by time because had the respondents initiated their claim by filing a civil suit for the recovery of their unpaid dues under the G.H.S. before a Court of original civil jurisdiction, their suit shall be beyond the prescribed period of limitation with reference to any relevant Article of the Limitation Act, 1908 conceivably applicable. The significant question which thus would arise is, that where a claim of a person emerging from the breach of contract, which (claim) admittedly is barred by time if agitated before the Court of plenary/original civil jurisdiction, whether such claim can be directed to be enforced by the High Court in the exercise of its extra ordinary jurisdiction, within the parameters of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. In this context when questioned, learned Sr. Advocate Supreme Court Mr. Munir A. Malik has not been able to point out any Article of the Limitation Act, which would save the case of the respondents (ex-employees/optees of G.H.S.) from the bar of limitation if they had brought their claim through a civil suit in June, 2010, when the Constitution Petition was filed in the High Court. However, he explained that the respondents have been protesting and agitating the matter throughout with the K.P.T.; the High-up in the Government; therefore the time shall commence from the date of final refusal of K.P.T.; besides respondent No.1 as the trade union, being a representative body had earlier initiated the cause under section 61 of I.R.O. for and on behalf of the respondents, therefore, the period spent in those proceedings shall stand excluded, if the suit was filed, which would not be then barred. It is also emphatically argued that there is no period prescribed for invoking the constitutional jurisdiction of the High Court under Article 199 of the Constitution and limitation cannot operate as a bar to such a special constitutional remedy.
11. As already stated above, there is no material on the record that the respondents have ever raised any objection while receiving the dues in terms of the G.H.S., during the period mentioned above or had protested against the short payment, except a lukewarm averment in the constitution petition. Besides, such objection or the protest even if raised or made would not enlarge the period of limitation by itself qua a suit. Rather the respondents would be required in law to set out a case seeking exceptions from the limitation as the grounds in the plaint, if the suit was filed by them, as is mandated by Order VII, Rule 6 of the C.P.C. But as they have chosen not to sue through a civil suit, rather by a constitution petition, it was incumbent upon the respondents to have satisfied the Court that their claim would not be hit by limitation if the civil suit was brought. This was relevant, rather imperative for them to satisfy the judicial conscious of the Court to establish that the rules of laches and the past and closed transaction which prima facie were attracted to the constitution petition of the respondents, should be dispensed with.
12. Undoubtedly, the provisions of Limitation Act, 1908 cannot be stricto sensu made applicable to the claims set forth in the constitutional jurisdiction of the High Court, but if the claim on the face of it is barred by law of limitation in relation to the suit, the relief should be refused to the writ petitioners on the rule of laches and past and closed transaction. It is settled law that in the adversarial litigation on account of the lapse of prescribed period of limitation, a valuable right is created in favour of the other party. Thus it shall be ludicrous to conceive and hold that although the normal remedy of the person in a dispute of civil nature is barred by limitation in the ordinary and normal course of lis, yet the right earned by the opposite side as mentioned above, shall be stultified, defeated and annulled in the extra-ordinary discretionary jurisdiction of the High Court, by ignoring the bar of limitation. Thirdly, respondent No.1 had filed a petition under section 61 of the I.R.O. as mentioned earlier and failed before this Court, such petition is claimed to be in the representative capacity for the benefit of all the aggrieved ex-employees. Respondent No.1 is again a writ co-petitioner in this case. Strangely the plea/claim and the relief on the basis of Charter of Demands dated 1-4-2002 was not put forth in that matter. According to Order II, Rule 2, C.P.C. the splitting of claim and/or relief is prohibited and that is a mandatory provision of law, with the consequence that if a claim/ relief which a person is entitled to on the basis of a cause of action, but omits and relinquish the same, such person/party shall be precluded to sue for the claim/relief so omitted. I do not find that the claim/relief now structured by the respondents is on a distinct cause of action. In my view, therefore, the bar of Order II, Rule 2 is also attracted to the case in hand.
13. In the light of three reasons stated above, by allowing this appeal the impugned judgment of the learned High Court is set aside and the constitution petition of the respondents is dismissed.
MWA/T-6/S Appeal allowed.