PLJ 2023 Lahore (Note) 55
[Multan Bench, Multan]
Present: Muhammad Raza Qureshi, J.
MANZOOR HUSSAIN--Petitioner
versus
GOVERNMENT OF THE PUNJAB, through Chief Secretary etc.--Respondents
W.P. No. 19587 of 2021, heard on 30.12.2021.
Punjab Civil Servants Pension Rules, 1963--
----R. 1.8(a) (b)--Punjab Employees Efficiency, Discipline and Accountability Act, (XII of 2006), Ss. 1(4)(iii) & 21--Retirement from service--Initiating of departmental proceedings--Pendency of inquiry--Withholding of pensionary benefits--Question of whether upon non-conclusion of departmental proceedings after laps of 4 years, 20% pensionary benefits of petitioner can be withheld or not--Fundamental right--Non-applicability of PEEDA Act--Public policy--Delay in disbursement or finalization of pensionary benefits of Government servant, widows or orphan children have been held liable for contempt of order passed by august Supreme Court of Pakistan--Provisions of PEEDA Act will only remain applicable to those employees against whom departmental proceedings or other proceedings have been initiated during service--Departmental proceedings shall not be instituted after more than a year from date of retirement of Government £ pensioner--Delay in conclusion of proceedings cannot be attributed to Petitioner, withholding of 20% pensionary benefits are declared as unlawful, illegal and beyond purview of law--Petition allowed. [Para 9, 14, 16 & 18] A, C, E & F
PLD 2007 SC 35, PLJ 2021 SC 175, PLD 1973 SC 514, AIR 1983 SC 130 and 2021 SCMR 702 ref.
Constitution of Pakistan, 1973--
----Arts. 9, 14, 23 & 25--Right of pension--Right to life--Pension becomes property of retiring employee of civil servant as a matter of right upon completion of his service, which is a regular source of livelihood thus is protected by right to life and rights enshrined in and guaranteed by Articles 9, 14, 23 and 24 of Constitution.
[Para 11] B
Punjab Civil Servants Pension Rules, 1963--
----R. 1.8(a)--Withholding of pension--Government may withhold or withdraw a pension if pensioner is convicted in a serious crime or has been found guilty of grave misconduct during or after completion of service. [Para 16] D
Haji Muhammad Tariq Aziz Khokhar, Advocate for Petitioner.
Mian Shahid Riaz, Assistant Advocate General with Mr. Ibrar Ahmad, Law Officer, Specialized Healthcare and Medical Education Department for Respondents.
Date of hearing: 30.12.2021.
Judgment
This is a Writ Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, wherein the Petitioner has challenged withholding of 20% pensionary benefits by the Respondents on account of pendency of inquiry in departmental proceedings initiated by the Department against him and not concluded since 23.06.2018.
2. Learned counsel for the Petitioner submits that the Petitioner joined services with Water Management Division, Agriculture Department, Government of the Punjab on 31.08.1982. Subsequently, upon clearing his exams through Punjab Public Service Commission the Petitioner was appointed on 10.06.1992 as Accounts Officer (BS-16) in Healthcare Department of the Government of the Punjab and Petitioner retired from his service on 19.05.2017, however, the Respondents on an illegal pretext withheld the retirement Notification of the Petitioner along with other emoluments on a misconceived premise that departmental inquiry is pending against the Petitioner. The said proceedings remained subject matter of Writ Petition No. 15366 of 2021, which was disposed of by this Court pursuant to Order dated 09.12.2021 having borne fruit as department having realized the mistake issued retirement Notification on 26.10.2021 and released the leave encashment of 365 days on 08.12.2021 along with 80% pensionary benefits to the Petitioner. However, 20% pensionary benefits were withheld by the department on account of pending departmental proceedings against the Petitioner.
3. Learned counsel for the Petitioner submits that Petitioner who has served a department throughout his life the pensionary benefits are one of his fundamental rights as those are directly linked with his right to livelihood and right to dignity as at the end of the career every civil servant has right to live with the peace of mind knowing well that he does not have to work any more. The withholding of 20% pensionary benefits is not only illegal and misconceived but are also beyond the applicable provisions of law, therefore, the impugned actions of withholding 20% pensionary benefits suffer from malaflde in law.
4. Learned counsel for the Petitioner has also apprised this Court that initially FIR bearing No. 49/2016 dated 27.12.2016 was lodged against the Petitioner and upon recommendation of Anti- Corruption Establishment the said FIR was dropped and Departmental proceedings were recommended against the Petitioner. The Petitioner on 15.01.2017 was suspended from his service whereas on 19.05.2017 the departmental inquiry was initiated against the Petitioner i.e. almost 02 years before his date of retirement, which was due on 12.06.2019. According to learned counsel for the Petitioner initiation of inquiry before the date of suspension and non closure of that inquiry even after the lapse of more than 02 years is not only violative of Section 21 of PEEDA Act, 2006 but also betrays the mandate contained in Rule 1.8 of the Punjab Civil Servants Pension Rules, 1963. Learned counsel for the Petitioner has also placed reliance on Rule 54-A of the fundamental rules to demonstrate the proceedings from legal perspective actually stand abated now.
5. Notices were issued through Order dated 16.12.2021 to the Respondents and in response thereof reply and parawise comments have been filed. Learned Assistant Advocate General has ably assisted this Court by referring to various proceedings and submits that the charge against the Petitioner was on account of his negligence and in this regard final recommendation of the competent authority is awaited. Learned counsel by referring the bona fide of the Department submits that retirement Notification, has already been issued and to protect rights of the Petitioner’s leave encashment of 365 days has already been allowed and likewise, Notification with respect to release of 80% pensionary benefits is also issued. However, in terms of proviso attached to Rule 1.8 of the Punjab Civil Servants Pension Rules, 1963 the Department is well within its right to withhold the 20% pension as such an exercise would assist in protecting the rights and interests of the department, if some recoveries are to be made from the Petitioner. Worthy Assistant Advocate General Punjab has also referred to the sensitivity involved in the matter as the matter relates to the embezzlement of Government money and submits that Writ Petition merits dismissal as the 20% pensionary benefits can only be released to the Petitioner upon conclusion of the departmental proceedings against him.
6. I have heard arguments of learned counsel for the Petitioner as well as learned Assistant Advocate General, Punjab and have minutely considered the facts as well as record in the matter.
7. In essential facts apart as the same are admitted in the facts and circumstances of the case, the controversy before this Court is limited to determining the question of law whether upon non conclusion of departmental proceedings after lapse of 4 years, the 20% pensionary benefits of the Petitioner can be withheld or not.
8. To protect and safeguard the rights and interests of the Pensioners the West Pakistan Civil Servants Pension Rules, 1963, Chapter V, Rule 5.1 commands as under:
5.1. All authorities dealing with applications for pensions under these rules should bear in mind that delay in the payment of pensions involves peculiar hardship. It is essential to ensure, therefore, that a Government servant begins to receive pension on the date on which it becomes due.
5.2 The responsibility for initiation and completion of pension papers is that of the Head of Department, Attached Department concerned in the case of Gazetted Officers and of the Head of Office concerned in the case of non-Gazetted Government servants. The action should be initiated one year before a Government servant is due to retire so that pension may be sanctioned a month before the date of his retirement. For this purpose every Government servant should be asked to submit his pension application in Form 3 (Pen) 6 months in advance of the date of his retirement.”
9. A right to pension and benefits attached thereto is an inviolable fundamental right of every retired civil servant guaranteed by the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the “Constitution”) as it is directly linked with rights to livelihood, property, dignity and right to life. Likewise, the fundamental right to property ensured security of pecuniary and pensionary benefits attached to the service. A delay in the disbursement or flnalization of the pensionary benefits of the Government servant, widows or orphan children have been held liable for contempt of the order passed by the august Supreme Court of Pakistan and as per dictum laid down in “Haji Muhammad Ismail Advocate,” (PLD 2007 Supreme Court 35) wherein officer causing delay has been directed to be dealt with strictly in accordance with law.
10. Whether the Pension is a state bounty, which could be awarded as a favour to any individual outside the scope of applicable provisions. This approach is not only incorrect but also inhumane as the pension is a right which the government servants and employees in different positions and different capacities earn in terms of the relevant statutory provisions applicable to their case and mostly depending upon their length of service. It is not a State bounty. The Hon’ble Supreme Court of Pakistan in the case of “The Government of N.W.F.P. through the Secretary to the Government of N.W.F.P. Communications and Works Department, Peshawar versus Mohammad Said Khan and another (PLD 1973 SC 514) held:
“It must now be taken as well settled that a person who enters Government service has also something to look forward to after his retirement, to what are called retirement benefits, grant of pension being the most valuable of such benefits. It is equally well-settled that pension like salary of a civil servant is no longer a bounty but is a right acquired after putting in satisfactory service for the prescribed minimum period. A fortiori, it cannot be reduced or refused arbitrarily except to the extent and in the manner provided in the relevant rules.”
The same view has been taken by the Supreme Court of India in “D.S. Nakara and others versus Union of India” (AIR 1983 Supreme Court 130).
“Summing-up it can be said with confidence that pension is not only compensation for loyal service rendered in the past, but pension also has a broader significance, in that it is a measure of socio-economic justice which inheres economic security in the fall of life when physical and mental prowess is ebbing corresponding to aging process and, therefore, one is required to fall back on saving. One such saving in kind is when you give your best in the heyday of life to your employer, in days of invalidity, economic security by way of periodical payment is assured. The term has been judicially defined as a stated allowance or stipend made in consideration of past service or of a surrender of rights or emoluments to one retired from service. Thus the pension payable to a Government employee is earned by rendering long and efficient service and therefore can be said to be a deferred portion of the compensation for service rendered. In one sentence one can say that the most practical raison d’etre for pension is the inability to provide for oneself due to old age. One may live and avoid unemployment but not senility and penury if there is nothing to fall back upon.”
11. Thus the pension becomes the property of retiring employee of civil/public servant as a matter of right upon the completion of his/her service, which is a regular source of livelihood thus is protected by the right to life and rights enshrined in and guaranteed by the Articles 9, 14, 23 and 24 of the Constitution.
12. These rights declared by the Hon’ble Supreme Court of Pakistan are not only available to the retiring employee but are extended beyond his life for protection and safeguard of his survivable interests and equally available to his/her legal heirs. Reliance in this regard is placed on “Regional Operation Chief, National Bank of Pakistan, Human Resource Department, Regional Office, Sargodha and others versus Mst. Nusrat Perveen and others” (2021 SCMR 702) wherein Hon’ble Supreme Court held as under.
“Under our constitutional scheme, abatement of proceedings on the death of a civil servant, in a case, where the cause of action carries a survivable interest will unduly deprive the decedent civil servant, as well as, his legal heirs of their constitutional rights to livelihood, property, dignity and fair trial. Fundamental right to life including right to livelihood ensures the security of the terms and conditions of service; fundamental right to property ensures security of the pecuniary and pensionary benefits attached to the service; fundamental right to dignity ensures that the reputation of the civil servant is not sullied or discredited through wrongful dismissal, termination or reversion etc; and fundamental right to fair trial and due process, inter alia, safeguards and protects the survivable interest and ensures continuity of the legal proceedings even after the death of the civil servant, equipping the legal heirs to purse the claim. Fundamental rights under the Constitution do not only protect and safeguard a citizen but extend beyond his life and protect and safeguard his survivable interests by being equally available to his legal heirs. It is reiterated that other than pecuniary and pensionary benefits that inure to the benefit of the legal heirs, the right to restore one’s reputation is also a survivable right and flows down to the legal heirs to pursue and take to its logical conclusion. Any slur on the reputation of a civil servant impinges on his human dignity and weighs equally on the dignity and honour of his family.
13. Now to identify the scheme of law in the facts and circumstances of the case, it is imperative to examine the provision of applicable law and analyze the status of the Petitioner being a retired employee. The first applicable law is the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 (hereinafter referred to as the “PEEDA Act”) which is an Act to provide for proceedings against the employees in government and corporation service in relation to their efficiency, discipline and accountability and according to its Section 1(4) it applies to employees in government service; employees in corporation service; and retired employees of government and corporation service provided that in case of retired employees proceedings under PEEDA Act are initiated against them during their service or within one year of their retirement. For convenience Section 21 of the PEEDA Act is reproduced hereunder:
“21. Proceedings under this Act.--Subject to this Act, all proceedings initiated against the employees having retired or in service, shall be governed by the provisions of this Act and the rules made thereunder:
Provided that in case of retired employee, the proceedings so initiated against him shall be finalized not later than two years of his retirement.
(2) The competent authority may, by an order in writing, impose one or more penalties specified in clause (c) of Section 4, if the charge or charges are proved against the retired employee.”
14. The mandate of law contained in the PEEDA Act demonstrates that against the retired employees any proceedings under the PEEDA Act can only be initiated during their service or within one year of their retirement and proceedings so initiated are bound to conclude and finalize not later than two years of retirement of the employees. The applicable provisions of Sections l(4)(iii) as well as proviso to Section 21 of PEEDA Act from their language reflect that these are mandatory in their nature, ambit and scope. Obviously the object of these provisions is to enhance good governance in service matters. The scheme of the PEEDA Act seems to support the public policy that an employee who has served the government all his life must enjoy his retirement and must be spared from undergoing any drawn departmental proceedings during his retired life. The provisions of PEEDA Act will only remain applicable to those employees against whom departmental proceedings or other proceedings have been initiated during the service. Reliance in this regard is placed upon case titled “Province of Punjab through Conservator of Forest, Faisalabad and others versus Javed Iqbal” (PLJ 2021 SC 175) and “Syed Raza mehdi Baqari versus Province of Punjab through Secretary, LG & CD Department and 2 others” (2016 PLC (C.S.) 1046).
15. The other law which may attract in the facts and circumstances of the case is Punjab Civil Servants Pension Rules, 1963 (hereinafter referred to as the “Pension Rules”). Pursuant to Rules 1.8, 1.9 and 1.10 the position of law emerges as under:
“1.8. (a) Good conduct is an implied condition of every kind of pension. Government may withhold or withdraw a pension or any part of it if the pensioner be convicted of serious crime or be found to have been guilty of grave misconduct either during or after the completion of his service:
Provided that before any order to this effect is issued, 10 [the pension Sanctioning Authority shall give full opportunity to the pensioner to vindicate his position.]
(b) Government reserves to themselves the right of recovery from the pension of Government pensioner on account of losses found in judicial or departmental proceedings to have been caused to Government by the negligence, or fraud of such Government pensioner during his service:
Provided that such departmental proceedings shall not be instituted after more than a year from the date of retirement of the Government pensioner.
10[Note: If the departmental proceedings are not completed within one year after retirement of the government servant, he may be allowed to draw upto 80% or less of full pension so as to ensure that government loss in full is recovered from the balance. In the case of judicial proceedings, judgment of the Court may be awaited. If the proceedings are delayed beyond one year after retirement, reduced pension may be allowed as in the case of pensioners facing departmental proceedings.]
(c) In case the amount of pension granted to a Government servant be afterwards found to be in excess of that to which he is entitled under the rules, he shall be called upon to refund such excess.
1.9. No pension may be granted to a Government servant dismissed or removed or misconduct, corruption, subversive activities or in efficiency, but, if he deserves special consideration he may be granted a compassionate allowance not exceeding 2/3rd of the pension which would have been admissible to him had he retired on invalid pension.
1.10. Any of these rules may for reasons to be recorded in writing be relaxed in individual cases by a competent authority if it is satisfied that a strict application of the rules will cause hardship to the individual.”
16. It is evident from Rule 1.8(a) that Government may withhold or withdraw a pension if the pensioner is convicted in a serious crime or has been found guilty of grave misconduct during or after the completion of service. The proviso to sub rule (a) envisages that before an order to this effect is passed, the Pension Sanctioning Authority shall give full opportunity to the Petitioner to vindicate his position. (Pursuant to sub-rule (b) the scheme of Pension Rules is aimed towards closure of departmental proceedings after retirement of an employee as for attraction of sub-rule (b) the fundamental condition is that the departmental proceedings shall not be instituted after more than a year from the date of retirement of the Government pensioner. For safeguarding the public policy it is held that provisions of Rule 1.8 of Pension Rules are mandatory.
17. A plain reading of PEED A Act, Pension Rules and other laws such as Fundamental Rights, Civil Service Regulations and Civil Establishment Code clearly reflect that all these laws as a matter of public policy are aimed towards the good governance and streamlining the closure of proceedings against a retired employee with a legislative intent to curb the situations of retired employees undergoing departmental proceedings during his retired life.
18. In view of the applicable provisions of law and rules since the delay in conclusion of proceedings cannot be attributed to the Petitioner, therefore, the withholding of 20% pensionary benefits are declared as unlawful, illegal and beyond the purview of law. The Respondents are directed to release remaining 20% pension to the Petitioner forthwith.
19. Consequently, this Writ Petition is allowed.
(Y.A.) Petition allowed
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