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Petitioner: Bahadur Khan and others VS Respondent: Federation of Pakistan through Secretary, Mk) JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Ijaz-ul-Ahsan, Maqbool Baqar, Ejaz Afzal Khan Title:Bahadur Khan and others vs Federation of Pakistan through Secretary, Mk)
JUDGMENT
Reported As: 2017 P.S.C. 1612 Result: Order accordingly Judgment JUDGMENT EJAZ AFZAL KHAN, J. --- These appeals with the leave of the Court have arisen out of the judgment dated 16.01.2017 of a Division Bench of the Lahore High Court whereby it dismissed the Intra-Court Appeals filed by the appellants and thus upheld the judgment dated 15.01.2016 of the said High Court whereas C.A. No. 353 of 2015 has arisen out of the judgment dated 03.06.2014 of a Division Bench of the Peshawar High Court whereby it dismissed the petition filed by the appellants. 2.Learned Sr. ASC appearing on behalf of the National Bank contended that neither the letter dated 30.11.1977 issued by the Finance Division, Government of Pakistan nor the Circular No. 228(C), dated 26.12.1977 issued by the National Bank of Pakistan implementing the terms and conditions set out in the letter dated 30.11.1977 could be said to have been issued in exercise of the rule-making powers under Section 20 of the Banks (Nationalization) Act, therefore, they have no statutory sanction behind them. He next contended that where the notification and the circular stating terms and conditions of service appear to be purely administrative or executive instructions, they cannot be treated as statutory instruments, the moreso when, they have not been published in the official. Gazette. Whatever attire, the learned ASC maintained, the respondent may put on the notification it could not have a statutory status if seen in the light of the judgment rendered in the case of Mustafa Impex v. Government of Pakistan (PLD 2016 SC 808). He next contended that with the dissolution of Pakistan Banking Council through Banks (Nationalization) (Amendment) Act, XVIII of 1997 the Board of the Bank became move,, autonomous and Respondent and as such they shaped policies and determined the 3 terms and conditions of service of their officers and executives
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keeping in view the emerging competitive environment The Board, the learned Sr. ASC maintained, accordingly issued Circular No. 3799, dated 16.06.1999, revised the pay structure and the pension factor of the officers and executives of the Banks; that the circular was accepted and acted upon by the officers and the executives without any qualms for more than a decade; that once it was accepted and acted upon, it could not be questioned by them under any canons of law and propriety and that neither the Single Judge hearing the writ petitions nor the Division Bench of the Lahore High Court hearing the Intra-Court Appeals appreciated the content and the context of the Circular while handing down the impugned judgments. Writ petitions of the respondents, the learned Sr. ASC argued are also hit by the principle of approbation and reprobation inasmuch as they damn the decrease in the pension factor without refunding what they received consequent upon the revision of the pay scale. Such petitions, the learned Sr. ASC argued, are hit by the principle of laches when they were instituted ten years after the issuance of the circular dated 16.6.1999. The learned Sr. ASC lastly argued that where the notification dated 30.11.1977 nor the Circular dated 26.12.1977 can be held to be statutory by any attribute, the writ petitions filed by the respondents merited outright dismissal. The learned Sr. ASC to support his contentions placed reliance on the case of Muhammad Zaman and others v. Government of Pakistan through Secretary, Finance Division (Regulation Wing), Islamabad and others (2017 SCM R 571). 3. Learned ASC appearing on behalf of the appellant in CA. No. 353 of 2015 and respondents in C.A. Nos. 632 to 673 of 2017 contended that the letter dated 30.11.1977 issued by the Finance Division, Government of Pakistan and the Circular No. 228(C), dated 26.12.1977 issued by the National Bank of Pakistan having all the traits and trappings of statutory rules are binding on the National Bank of Pakistan, therefore; any departure from either of them would be amenable to the Constitutional jurisdiction of the High Court. The learned ASC to support his contention placed reliance on the case of Khawaja Abdul Hameed Nasir and others v. National Bank of Pakistan and others (2003 SCM R 1030). Learned ASC next contended that appointment of the Pay Commission for Banks and Financial Institutions, issuance of notification dated 30.11.1977 of the Finance Division, Government of Pakistan, issuance of orders by the Banking Council to the Bank and finally issuance of Circular No. 228(C), dated 26.12.1977 in ,compliance with the order of the Banking Council have a statutory backing, therefore, it is beyond the power and competence of the Board of Directors of the National Bank of Pakistan to change any of the terms and conditions governing the pay and pension of its officers and executives to their disadvantage. The learned ASC to support his contention placed reliance on the case of Muhammad Tariq Badar and another v. National Bank of Pakistan and others (2013 SCM R 314). The learned ASC further contended that the notification issued by the Finance Division Government of Pakistan and Circular No. 228(C) issued by the Bank could be treated at par with the statutory rules when they have been acted upon for decades and decades together. The learned ASC to support his contention placed reliance on the cases of Pakistan v. Sheikh Abdul Hamid (PLD 1961 SC 105), Dr. Habibur Rahman v. The West Pakistan Public Service Commission, Lahore and 4 others (PLD 1973 SC 144), Khan Faizullah Khan v. Government of Pakistan through the Establishment Secretary, Cabinet Secretariat and another (PLD 1974 SC 291). Reduction in pension factor, the learned ASC added, from 70% to 33% cannot be justified under any principle of law and jurisprudence when the recommendations of the Pay Commission, orders of the Banking Council, notification issued by the Finance Division, Government of Pakistan and the Circular issued by the Bank nowhere limited their efficacy in terms of time. Failure to have the notification published in the official Gazette, the learned ASC maintained, cannot shear it of its efficacy or make it non-statutory. To support his contention learned ASC placed reliance on the cases of Saghir Ahmed through legal heirs v. Province of Punjab through Secretary Housing and Physical Planning, Lahore and others (PLD 2004 SC 261), National Bank of Pakistan v. Manzoorul Hassan (1989 SCM R 832) and Pakistan v. Sheikh Abdul Hamid (PLD 1961 SC 105). Learned ASC in the
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alternative argued that even if the terms and conditions regulating pension have their origin in a contract, the Board of Directors could not unilaterally amend them without the consent of the stakeholders. In support of his contention learned ASC placed reliance on the case of Nighat Yasmin v. Pakistan International Airlines Corporation, Karachi and another (2004 SCM R 1820). The learned ASC lastly argued that where pension is not only a vested but a recurring right, laches or any other inaction for a short span of time cannot extinguish it. The learned ASC to support his contention placed reliance on the cases of Pakistan Telecommunication Employees Trust (PTET) through M.D., Islamabad and others v. Muhammad Arif and others (2015 SCM R 1472), Secretary, Government of Punjab, Finance Department and 269 others v. M. Ismail Tayer and 269 others (2015 PLC(CS) 296), Constitution . Petition No. 127 of 2012, decided on 11.04.2013 regarding Pensionary Benefits of the Judges of Superior Court (PLD 2013 SC 829), Pakistan Muslim League (N) through Khawaja Muhammad Asif, M.N.A. and others v. Federation of Pakistan through Secretary Ministry of Interior and others (PLD 2007 SC 642), Pakistan Tobacco Company Ltd. and another v. Federation of Pakistan through Secretary, Ministry of Commerce, Islamabad and 3 others (1999 SCM R 382), Civil Aviation Authority, Islamabad and others v. Union of Civil Aviation Employees and another (PLD 1997 SC 781), Shahid Pervaiz v. Ejaz Ahmad and others, etc. (2017 SCM R 206), Muhammad Mubeen-us- Salam and others v. Federation of Pakistan through Secretary Ministry of Defence and others (PLD 2006 SC 602) and LA. Sbharwani and others v. Government of Pakistan through Secretary Finance Division, Islamabad and others (1991 SCM R 1041). 4. We have carefully gone through the record and considered the submissions of the learned Sr. ASC/ASCs for the parties as well as the learned DAG. 5. The background culminating in the issuance of the notification dated 30.11.1977 and the circular dated 26.12.1977 is that a Pay Commission through a resolution dated 28.05.1977 was constituted by the Government of Pakistan with the following terms of reference:--- (i) To examine:--- (a) the existing salary structure and all other types of allowances, amenities and facilities, including post-retirement benefits, and all such increase therein as may have been sanctioned recently, admissible to all categories of staff and employees in the nationalized banks including State Bank of Pakistan and financial institutions; (b) the principles on which they are based and the basic terms and conditions governing their admissibility; (c) the inter-se relationship of the salaries and allowances and other amenities, facilities and benefits and the underlying principles and justification of the same; and (d) the problems that may arise and the adjustments that may be necessary as a consequence of the scheme of merger of the nationalized banks already approved by the Government. (ii) To make recommendations:--- (a) on the need, if any, and the manner in, which the existing salary structure and other emoluments and the terms and conditions governing them should be rationalized or otherwise modified taking into account the qualifications and experience required for each grade or scale of pay and the allowances and perquisites attached thereto; the responsibilities which to be discharged at various levels; and the prospects of promotion or vertical mobility in each nationalized bank and financial institution; (b) on the treatment that may be given and the adjustments that should be made in the pay and emoluments of the staff and employees of a nationalized bank which is to be merged with another; (c) on the need if any, and the extent to which the existing emoluments and other conditions of service require modification, taking into account the economic conditions in the country and the terms and conditions of service in general and those incomparable undertakings in particular, the
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size, financial sources and viability of each nationalized bank or financial institution, the role assigned to each in the national economy, the socioeconomic goals and all such other relevant factors; (d) on the ways and means of keeping the terms and conditions of service in the banking sector in line with Changes in the national economy, considering the need of all times for an efficient and smooth banking service to the community; and (e) on any other matter which the Commission may consider relevant to its terms of reference." The Commission having considered the socio-economic conditions, the size, financial resources and viability of each nationalized Bank and financial institution made recommendations. The Federal Government following the recommendations issued the notification dated 30.11.1977 while the Bank following the notification issued circular No. 228(c), dated 26.12.1977. 6. What did the Banking Council stand for, what powers did it exercise and what functions did it perform under the Banks (Nationalization) Act before its amendment are the questions which have been answered by Section 9 of the Act itself which reads as under:-- "9. Pakistan Banking Council.-- (1) This section and section 11 shall apply to the banks mentioned in the Schedule and any new bank which may be constituted after the commencing day, whether by merger or reorganization of the said banks or under the Companies Act, 1913 (VII of 1913). (2) The Federal Government shall, by notification in the official Gazette, constitute a Council to be (i) A Chairman; (ii) A Deputy Governor of the State Bank; (iii) An official of the Ministry of Finance, Government of Pakistan; and (iv) Not more than five and not less than three members: Provided that not less than three members shall be full time members one of whom shall be appointed by the Federal Government to be the Secretary of the Council. (3) The Council shall be a body corporate having perpetual succession and a common seal, with power to acquire and hold property, and shall be the name given to it by sub-section (2) sue and be sued. (4) The functions of the Council shall be:--- making policy recommendations to the Federal Government for directing banking activities towards national socio-economic objective; (ii) formulating policy guidelines t r the banks; (iii) laying down performance criteria for banks, and taking steps for ensuring their observance; (iv) evaluating the performance of the banks in the context or national socio-economic objectives and policy guidelines issued to the banks; (v) determining the areas of coordination of the banks; (vi) formulating schemes under Section 15; (vii) making recommendations to the Federal Government for the appointment of the President and members of an Executive Board; (viii) analyzing and appraising financial statements, including Balance Sheets and Profit and Loss Accounts, of the banks and appointment of auditors of the banks; (ix) ' conducting such surveys, inquiries and appraisals as may be necessary for the purposes of this Act; and (x) exercising and performing such powers and functions of the Federal Government under this Act, and such other functions, as the Federal Government may assign to it. (5) For the proper exercise of its functions, the Council may require information, returns or periodical and special reports from banks. (6) The Council may appoint such officers, employees, experts and consultants as it may deem fit."
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The Council as is evident from the provisions reproduced above had a role in making policy, exercising such powers and performing such functions of the Federal Government and other functions as the Federal Government assigned. Even the President and members of an Executive Board were appointed on the recommendations of the Council. But what bearing its dissolution and other amendments in the Act would have on the fate of this case is a question we propose to discuss in the latter part of the judgment. 7. Now the question arises what is the status of the notification dated 30.11.1977 and what is status of the Circular dated 26.12.1977. Before we answer the question it is worthwhile to refer to the notification and the circular which read as under:-- "No. 17(9)-IF.XI/77 Government of Pakistan Finance Division (Internal Finance Wing) Islamabad, the 30th Nov., 1977 From: Shafat Ahmad, Section Officer, Phone 21545 To Mr. M.A.K. Yousufi, Chairman, Pakistan Banking Council, 8-Habib Bank Plaza, Karachi. Sub: PENSIONS AND RETIREMENT BENEFITS FOR OFFICERS/EXECUTIVES OF BANKS AND FINANCIAL INSTITUTIONS. Dear Sir, I am directed to say that with a view to provide better social security, it has been decided to introduce pension and retirement benefits for the officers/executives of the banks including the State Bank of Pakistan and financial institutions as have been introduced by the Federal Government for Civil Servants. The pension scheme also includes the benefit of family pension to the officers, executive's wife and or to his children in the case of demise of the pensioner. The existing scheme of pension in the case of the National Bank of Pakistan. Contributory Provident Fund and Gratuity shall be discontinued. 2. The previous continuous service of officer/executive shall count as qualifying service for pension. The contribution made by the bank and financial institution towards the Contributory Provident Fund/shall be withdrawn as the service shall now count for the purpose of pension. The contribution of the officers/executives plus interest thereon standing in their respective Provident Fund Account shall be transferred and credited to the Provident Fund 'Accounts to be established under the now Provident Fund Scheme. A. DATE OF EFFECT 3. These benefits shall be admissible with effect from May, 1977 and shall be determined in accordance with the following provisions:--- B. RATE AND SCALE OF PENSION 4. (a) Pension shall be payable if the total service of an officer/executive at the time of retirement or death is 10 years or more. Gratuity shall be payable if the service of an officer/executive at the time of retirement or death is more than 5 years but less than 10 years. (b) Pension shall be calculated at the rate of 70% of emoluments on completion of 30 years qualifying service. Where qualifying service is less than 30 years but not less than 10 years proportionate reduction in percentage shall be made. Any amount of pension in excess of Rs. 1000/- shall be reduced by 50% on Pension Table regulating all the four pensions, namely, Compensation Pension, Superannuation Pension, Invalid Pension and Retiring Pension is enclosed
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as Annexure-I. (c) If, for a pensioner with qualifying service of 30 years or more, the amount of a pension calculated under sub-para (b) above falls short of the amount to pension inclusive of dearness increases) which would have been admissible to a Government servant under the Federal Government rules prior to 1.2.1977, or exceeds it by less than Rs. 45/-, the amount under the formula mentioned herein shall be so increased to make such difference one of 1.451. Where qualifying service is less than 30 years but not less than 10 years proportionate reduction at the rate of Rs. 1/50 for each year short of years shall be made while working out the amount of minimum increase mentioned above. (d) All spells of continuous service of one year or more rendered by an officer/executive shall count and qualify for pension or gratuity as the case may be. In calculating the total length of service for the purposes of the admissible of pension or gratuity the period of interruption of service and leave without pay shall be excluded. Total service thus calculated be refunded off to the nearest full year. A period of less than six months shall be ignored for this purpose and of more than six months counted as full year. (e) The term "emolurnents" i.e. pensionable pay, shall also include dearness allowances sanctioned from time to time. (f) Pension shall be calculated on the basis of the average monthly basic pay plus dearness allowances drawn by an officer/executive during the last three years of service including the period of leave but excluding the extraordinary leave without pay. G. Gratuity for Service of less than 10 years but not less than 5 years. 5. In case of an officer/executive who has rendered service of 5 years or more but less than 10 years a gratuity equal to one month's emoluments for each completed year of service may be granted to him on retirement. If, however, retirement is due to invalidation or if officer/executive dies in service, the rate shall be 1/1.... Months emoluments for each completed years of service. In the case of death of such an officer/executive, it shall be payable to his legal heir(s). B - Gratuity and Commutation for Pensioners Retiring After 10 years service. 6.(a) A pensioner shall be allowed to draw full gross-pension for one-fourth of the pension under this scheme need not compulsorily be paid in the form of gratuity. If, however, a pensioner so wishes, he may, at any time before expiry of one month from the date of his retirement, ask for gratuity upto 25% of his gross pension together with the remaining net amount of pension; the gratuity shall be paid at the following rates:--- If qualifying Service is 10 years or more but less than 15 years.Rs. 187 for every rupee of pension surrendered. If qualifying service is 15 years or more but less than 20 years.Rs. 173 for every rupee of pension surrendered. If qualifying service is 20 years or more. Rs. 160 for every rupee of pension surrendered. (b) Commutation of 25% of the gross pension shall be further admissible in accordance with the Civil Pensions (Commutations Rules) as applicable to the Federal Government employees. Commutation shall, however, not be subject to medical certification if it is asked for within one year of retirement. The payment in such cases shall become absolute on the date of application by the pensioner. This concession of commutation without medical certification is not admissible to those officers/executives who retire on invalid pension. E - Family Pension 7. (a) In the case of death of an officer/executive while in service, gratuity in lieu of one-fourth of the gross pension will be allowed at the rates shown in para 6(a). In addition, family pension shall be admissible for a period of 10 years at 50% of the gross pension,
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(b) In the case of death within 10 years of retirement, family pension for unexpired period of 10 years at 50% of the pension (net, or gross, as the case may be) shall be admissible. (c) Subsidiary rules and procedure in connection with the sanction and receipt of pension shall be framed by the institution concerned. F. Pensions/Gratuity for Injury or Death in course or consequence of duty. 8. The classification of disabilities and the criteria for determining their attributability to service shall be as detailed in Annexure Ill. The rate and scale of disability/death pension and gratuity shall be as under:-- DISASILITY PENSION/GRTUITY Class of InjuryPension Gratuity Child without own motherChild with one mother living A 20% of pay subject to a maximum of Rs. 600 and a minimum of Rs. 100 p.m. (Note: After death it will devolve on the window6 Months Pay5% of pay, subject to a maximum of Rs. 50/- per child2% of pay sunject to a maximum of Rs. 50/- and a minimum of Rd. 25/- per child. B 15% of pay subject to a maximum of Rs. 450 and a minimum of Rs. 75 p.m.Nil 4% of pay subject to a maximum of Rs. 80/- & Minimum of Rs. 40/- per child2% of pay subject to a maximum of Rs. 40/- and a maximum of Rs. 20/- per child C -do- Nil Nil Nil DEATH (SPECIAL FAMILY) PENSION/GRATUITY 1. 20% of pay subject to a maximum of Rs. 600 and a Minimum of Rs. 100 p.m6 months pay 5% of pay subject to maximum of Rs. 50 per child21/2 of pay subject to a maximum of Rs. 50/- and a minimum of Rs. 25/- per child. Note: The pensions/gratuities mentioned in this para will be in addition to the pensions and/or gratuities mentioned in paras 3 to 6 above. 9. An Officer who was in non-pensionable serviced on 1st May, 1977 and who was entitled ion the benefits of Contributory Provident Fund, shall, unless the amount of the Contributory Provident Fund has been paid be allowed to opt) for the new scheme of Pension, Gratuity and Provident Fund, in lieu of the existing retirement benefits admissible to him. This option shall be exercised in writing and communicated to the competent authority within 6 months from the date of the issue of these orders. Those offices who do not exercise and communicate the options for the pensionary benefits sanctioned in this letter within the prescribed time limit, shall not be entitled to the benefits thereof and shall continue on their existing terms. 10. Since the rates of pension and gratuity given above have been fixed by the Pay Commission for banks and financial institute the same lines as obtaining' on the side of the Federal Government1/2
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and existing provisions and any changes or revision in the scales of pension or gratuity that may hereafter be made by the Federal Government shall also apply to the officers/executive including the State Bank of Pakistan and financial institution. Yours faithfully Sd/- Shafat Ahmed Section Officer Encl: 3 Annexure." 8. While the Circular dated 26.12.1977 reads as under:-- "National Bank of Pakistan Head Office Karachi Instruction Circular No. 228 (C). December 26, 1977 Establishment Pensions and Retirement Benefits for Officers/Executives of Banks. 1. Further to our Circular No. 228 (B), it is advised that the Finance Division, Government of Pakistan, Islamabad has decided to introduce Pensions and retirement benefits for the officers/executives of the Banks as have been introduced by the Federal Government for Civil Servants. The pension scheme also includes the benefit of family pension to the officers/executive's wife and or to his children in the case of demise of the pensioner. 2. The previous continuous service of officer/executive shall count as qualifying service for pension. The contribution made by…
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