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Petitioner: MATIULLAH SHAH VS Respondent: MANAGING DIRECTOR, PAK-AMERICAN FERTILIZERS LTD.,.ISKANDARABAD, MIANWALI
2000 P L C (C
2000 P L C (C. S.) 667
[Federal Service Tribunal]
Before Muhammad Ayub Khan and Syed Muhammad Zafar Babar, Members
Syed MATIULLAH SHAH
Versus
MANAGING DIRECTOR, PAK‑AMERICAN FERTILIZERS LTD., ISKANDARABAD, MIANWALI and 2 others
Appeal No. 326‑R of 1998; decided on 1st December, 1998.
(a) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 4‑‑Appeal‑‑‑Limitation‑‑‑Delay‑‑‑Condonation‑‑‑Departmental appeal was filed by civil servant after delay of twenty‑three days from date, of relieving order and' appeal before Service Tribunal was also barred by nine days Appellant was legally bound to prove that his departmental appeal as well as appeal before Service Tribunal were within time, but he had failed to prove the same. In absence of any application for condonation of such delay, appeal was liable to be dismissed on ground of limitation.
(b) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 4‑‑‑Contract Act (IX of 1872), S.‑62‑‑‑Retirement under Golden Hand Shake Scheme‑‑‑Appeal‑‑‑Competency‑‑‑Appellant who opted to be retired under Golden Hand Shake Scheme, was relieved from service after receiving money under that Scheme‑‑‑After receipt of money under said Scheme, appellant was estopped to agitate and invoke service contract which had since been replaced by a contract under Golden Hand Shake Scheme whereby' offer made ‑ by Authorities was accepted by appellant which duly stood implemented by receipt of entire dues payable to him thereunder‑‑‑Appellant was left, with no cause of action when he pocketed due amount under said Scheme‑‑‑Appeal by appellant was dismissed being misconceived.
Abdur Rahim Bhatti for Appellant.
Munib Zia and.Ijaz Rahim for PAFL alongwith Zafar Ali Chaudhri, Senior Manager, D.Rs.
Date of hearing: 17th November, 1998.
JUDGMENT
MUHAMMAD AYUB KHAN (MEMBER).‑‑‑Arguments have been heard and record perused. .
2. Facts of the case, as appear from the record, are that the appellant while posted as Foreman (Electrical), Pak‑American Fertilizers Limited, Iskandarabad, Mianwali; under the respondents having opted the Golden Hand Shake Scheme/Volunteer Severance Scheme (hereinafter referred to as the Scheme), was reportedly retired under the impugned order dated 24‑9‑1997 with effect from 27‑9‑1997. However, his particulars for pension in the calculation sheet were indicated as below:‑‑
(1) Pension Code No. 5092
(ii) Date of Birth 17‑2‑1941
(iii) Date of Appointment 1‑6‑1970.
(iv) Date of Retirement (VSS) 27‑9‑1997
(v) Rate_of Retirement (VSS) 57.00
(vi) Pensionalble Service 27.325
(vii) Pensionable ‑Salary 6159.0000
BENEFITS PAYABLE
(A) Gross Pension 3926.8758
(B) Commuted Pension (50%) 1963.4379
(C) Commuted Amount 384333.8235
(D) Net Pension 1963.4379
(E) Capital Value of Net Pension. 188490.0360
(F) TOTAL (C+E) 5,73,323.86
(SAY Rs.5,73,324) (Sd.) (Sd.) (Sd.) Prepared by Checked by Cleared for Manager(PFT) Cretary (PFT) Actuary
Approved for payment by Chairman (PFT)"
3. Feeling aggrieved from the above order where under his service was counted from 1‑6‑1970 to 27‑9‑1997 instead of 24‑12‑1966 to 27‑9‑1997 for the purpose of calculating pension and commutation under the Scheme the appellant submitted a departmental appeal on 19‑11‑1997 wherein at Para.2 (reproduced ' below) the date of his appointment has been shown as "1‑6‑1970"instead of "24‑12‑1966".
"2. Sir, My actual date of appointment at PAFL is 24‑12‑1966, whereas my pensionable Service has been communicated to NFC as 1‑6‑1970 by PAFL I.R Department. Hence NFC Pension Fund Trust has calculated Pension amount for 27 years service on the basis of my date of appointment as 1‑6‑1970 Since I have served for 31 years, and entitled for 70 % Payment of Pension."
It is prayed in the departmental appeal that he may be:
"(a) awarded one special increment;
(b) two months salaries as a special case as per precedent of giving the same after retirement."
The departmental appeal was rejected by order dated 13‑4‑1998. It is alleged at para. l of the departmental appeal dated 19‑11‑1997 that he was relieved from service with effect from 29‑9‑1997 against which he filed the departmental appeal on 19‑11‑1997. However, nothing exact is known about the date of the impugned order. As already mentioned, the departmental appeal was rejected on 13‑4‑1998 against which the appellant filed the present service appeal on 22‑5‑1998. The period of limitation when reckoned from the date of rejection of the departmental appeal, the appellant was p required legally to file the service appeal by 13‑5‑1998 whereas he filed the same on 22‑5‑1998 which appears to be time‑barred by nine days while the departmental appeal, when reckoned from the date of relieve order (27‑9‑1997), is also time‑barred by 23 days. It is the legal duty of an appellant to prove that his departmental appeal as well as service appeal is within time whereas in the instant case no such proof is available on the record or shown/proved at the stage of arguments. We also do not find any application for condonation of delay on the file.
4. Coming to the factual side it is alleged that the appellant joined under the respondents on 24‑12‑1966 but in the Pension Calculation Sheet (Annexure‑F) he has been shown to have joined the service w.e.f. 1‑6‑1970, vide Para.2 of the departmental appeal read with para.5 of the service appeal.
5. The respondents have contested the appeal and denied the allegations levelled by the appellant in his departmental appeal/service appeal as is evident from the objections filed in the Tribunal on 29‑9‑1998 and available on the record wherein a preliminary objection regarding limitation has been raised at Para. l as well as para.2 thereof. It has also been pointed out that the award of one special increment and two months pay as a special case had the, Cell a requested ur be considered in the and that departmental appeal is false and frivolous and hence not maintainable and that there is no impugned order in existence. The Calculation Sheet cannot he construed as an impugned order whereas the date of retirement of the appellant under the Scheme is shown as 27‑9-1997", We support the view point of the respondents with respect to the date of the impugned order i.e. 29‑5‑1997 and not the date of Calculation Sheet which by itself nears no date. Contents of the appeal when read and placed in juxtaposition the parawise comments position the latter heavily and overwhelmingly overweigh the former. The respondents have also placed on file the appointment letter dated 8‑6‑1970 (Annexure A, page‑8) which is self‑‑explanatory and contains all the terms and conditions of the appellant s appointment. It reads:‑‑
"Dated 8‑6‑1970
MEMORANDUM
You are hereby re‑fixed as Electrician Sarni ‑skilled/Grade‑I in the Electrical Department with effect from 1‑6‑1970 on the following terms and conditions:
You will draw monthly salary of Rs.195 per month (consolidated in the scale of Rs. 135‑71/2‑210 (consolidated).
2. Your service will be terminable by 30 days notice on either side or by the Corporation only on payment of 30 days salary or pan thereof in lie of such notice.
3. You will be entitled to:
(a) 15 days Earned Leave on the expiry of each year service.
(b) 10 days Casual Leave with full pay.
(c) 10 days Medical Leave with full pay.
Medical Leave will be granted on production of Certificate from the Medical Officer of the Factory,
4. You will be entitled to Free Medical Facilities for self, your wife and own children as per Corporation's Rules.
5. If you are found guilty of any insubordination intemperance or misconduct, your services are liable to termination without any notice as per Standing Orders.
6. The Factory can change your designation and duties d you can also be transferred to other section Plants of the Factory or any other project of WPIDC, if required, against the post carrying the same scale of pay.
7. Your appointment in tile WPIDC is subject to your being declared medically fit for the job by the medical officer of the corporation and your character and antecedents being found unobjectionable.
Personal Record Form is enclosed herewith for your completion within 10 days of the receipt of this memo and send the same duly filled in to the Administration Branch.
In all other respects your services will be governed by the Rules and Regulations of the Corporation and Standing Orders enforced from time to time.
If the above terms and conditions are acceptable to you, you should acknowledge receipt of this order.
(Sd.) Major,
(M . Rafiq Khan)
Manage‑ (Admn) PAF."
6. It has also peen stated that the appellant has already pocketed the Golden Hand Shake emoluments/money to the tune of Rs. 573,323.86 duly accepted and received by him on 5‑12‑1997 vide document receipt cheque No. DIY 509578/188/20 dated 9‑12‑1997 (available at pages 13 to 16 of the file).
7. Pursuant to receipt of money under the scheme the appellant is estopped to agitate and invoke the service contract employment, which has, since been replaced by a contract under the Scheme whereby the offer made by the respondents was accepted by the appellant, which duly stands implemented by receipt of the entire dues payable to him thereunder. In this respect section 62 of the Contract Act, 1872, most relevant, 's reproduced hereunder in verbatim for ready reference:
"CONTRTS WHICH NEED NOT RE PERFORMED
Effect of novation.
62. If the parties to a contract agree to substitute a new contract for it. or to rescind or alter it, the original contract need not be performed. "
8. In view of the aforesaid discussion, this appeal being misconceived does not lie, the appellant has no cause of action when he pocketed the due amount under the Scheme and as such it fails and is hereby dismissed with costs on merits as well as on point of limitation. All concerned be informed
H.B.T/564Sr(Trib) Appeal dismissed