' ABDUL RASHID BALOCH (MEMBER).---This is an appeal challenging the acceptance of representation of the Agency against the recommendations of Wafaqi Mohtasib, conveyed to the appellant by Law, Justice and Human Rights Division vide their letter dated 20-9-1999, where- against, he submitted Departmental Appeal dated 11-10-1999 to the President of Pakistan indicating that representation to this effect has simultaneously been submitted to the Secretary, Finance Division for allowing the appellant benefit of Orderly Allowance in his pension w.e.f. The date of his retirement.
2. The facts of the case, in small compass, are that the appellant retired from Government service in B-22 on 11-7-1990 on which date the Orderly Allowance was part of his emoluments. He was reemployed in.The same capacity for one year, during which period, he was issued a Pension Payment Order (PPO) on 16-7-1990 and when pointed out by his colleagues, he noticed that Orderly Allowance, earlier included and being paid to him, was not made part of the said PPO. He submitted an application to the Respondents requesting the inclusion of Orderly Allowance in his pension as being done in case of such other officers. He also submitted application dated 9-3- 1998 to the Hon'ble Wafaqi Mohtasib who heard the parties and acceded to his request vide order dated 30-7-1998, directing the Respondents to allow the said benefit on him. However, Respondent No.1 Finance Division submitted a representation to the President of Pakistan who accepted the same on 20-9-1999, against which the appellant submitted the Departmental Appeal/Review Petition dated 11-10-1999 and, having no response thereto, he preferred present appeal in this Tribunal on 29-1-2000.
3. The learned Counsel for the appellants stated that the impugned action/order was an outcome of colourable exercise, was discrimiftatory and violative of fundamental rights. He submitted that the Q.M. Dated 4-12-1991, issued by Respondent No.1, itself reflected such attitude as Special Additional Pension was allowed to Government officers in B-20 to 22 w.e.f. 19-2-1991 but the officers who retired prior to the said date were not considered entitled thereto and the impugned order was thus based on the pick and choose policy of the Respondents. He contended that it was a settled law that whenever there was an element of interpretation of rule or law, the interpretation favourable to the individual was required to be adopted, whereas in the instant case the appellant had been denied his right in a mechanical manner. He referred to the cases of retired officers, namely; Tufail Ahmed Qureshi, Ch. Muhammad Din and Abdul Ghani Rohi whose appeals on the same issue were accepted by this Tribunal and/or by the Hon'ble apex Court and they were allowed the said benefit. He also placed reliance on 1999 SCMR 1904 (S.A.M Wahidi v. Federation of Pakistan), 1994 SCMR 881, 1996 SCMR 1470 and 1998 PLC (C.S) 694, in support of his arguments. The learned counsel prayed that the appeal may be accepted, impugned order/action of the respondents be set aside and the appellant be allowed Orderly AlloWance, in addition to his pension, w.e.f. 16-7-1990, with consequential benefits.
4. The learned counsel for the respondent vehemently opposed the appeal. He contended that the appeal was time-barred. He stated that the benefit of Special Additional Pension, equal to pre- retirement. Orderly Allowance, had been allowed to Government officers in B-20 21 and 22, who retired on or after 19-2-1991 vide Finance Division's OM, dated 19-8-1991 and since the appellant retired before the said date i.e. 19-2-1991, he was not considered to the entitled thereto. According to him, the action of the respondent was lawful and not unconstitutional. He argued that the judgment of the Hon'ble Supreme Court of Pakistan in S.A.M. Wahidi's case was `personam' in nature and thus could not be applied in 'rem' and other judgments referred to from appellant's side were not applicable to the instant case. He also referred to this Tribunal's judgment/order dated 21- 11-1993 and 1-4-1999 in Appeals Nos.191(R)/92 and 875(R)/98 respectively, whereby such prayers were declined. It was, therefore, prayed on behalf of the Respondents that the appeal, being time- barred and devoid of merits, deserved to be dismissed.
5. We heard the parties and perused the relevant record.
6. Concisely, the, case of appellant is that his total emoluments included Orderly Allowance till his retirement on 11-7-1990 but the said benefit was excluded from PPO dated 16-7-1990. A number of his colleagues, who retired after cut off date i.e. 19-2-1991, were stated to have been allowed the benefit in accordance with decision/ recommendation of the Hon'ble Wafaqi Mohtasib. In this respect, he mentioned name of one Mr. S. Athar Mehmood. According to him, a number of such officers were allowed the same benefit by the Respondents, in compliance of judgment of Hon'ble Superior Courts. Therefore, the denial thereof to him would amount to discrimination.
' As against that, the contention of the respondent is that since the appellate retired after the cut off date i.e. 19-2-1991, he was not entitled to the inclusion of Orderly Allowance in his pension and hence their action was lawful. As regards payment of Orderly Allowance as Additional Pay to Mr. Athar Mehmood, the representative of AGPR submitted, vide letter dated 18-6-2003, that the name of Mr. Athar Mehmood had not been found on the Computer Data Base of the pensioners as well as in their manual registers of pensioners/P.P.O., the same was also not traceable in the records of ACPR, Sub-Office, Lahore and, therefore, they were not in a position to intimate whether the said officer was granted additional pension equal to Orderly Allowance or otherwise because the PPO number and name of Audit Officer was not known to them. As regards officers quoted by the appellant who were allowed the said benefit in pursuance of the judgments of Hon'ble Superior Courts, the version of the respondent was that while S.A.M. Wahidi was allowed the benefit as `personam' and not in 'rem', other cases were not similar to that of the present one.
7. To arrive at a just conclusion, we consider it appropriate to reproduce the relevant portions of the judgments of the Honourable Supreme Court of Pakistan and this Tribunal, hereunder:-- Supreme Court of Pakistan
(i) Civil Appeals Nos.422 & 423 of 1994.
S.A.M. Wahidi v. Federation of Pakistan and another.
"As regards C.A. 423/1994, the appellant has case on merits in terms of the above quoted para. Of the judgment in the case of I.A. Sharwani (supra). The only technical question, which is in issue is whether the Tribunal was justified in not entertaining the appellant's above Misc. Petition No.98 of 1993 on the ground that Appeal No.191-R of 1992 had already been disposed of. In our view, since interpretation of the above O.M. Dated 29-19-1991 was involved, it was incumbent upon the Tribunal to have given its own interpretation instead of referring the matter to the Ministry of Finance, though with the consent of the parties.
' We are of the view that it will not be just and proper to decline the relief to the appellant on the above technical aspect. It may be stated here that this Court, in terms of Clause (1) of Article 187 of the Constitution is competent to issue such direction, orders or decrees as may be necessary for doing complete justice in any case or matter pending before it we are, therefore, of the view that this is a fit case where this Court should overlook the above technical aspect as the appellant has served the Ministry of Law commendably which is a fact known to all. We would, therefore, allow the above appeal, set aside the above judgment of the Tribunal and declare that the appellant is entitled to the benefit of the above quoted para. 2 of O.M. No.F.1(2) Reg (6)191 w.e.f. 19-2-1991.
However, there will be no order as to costs."
(ii) Civil Appeals Nbs.1298 of 1995, 3, 4 and 2006 of 1998.
Asghar Mehmood and 3 others v. Military Accountant General Rawalpindi and others.
"8. In this view of the matter, the above notification dated 29-5-1996 cannot be enforced retrospectively. In consequence whereof, the appellants who were in Grade .17 or above and retired during the period prior to 23-5-1996 would be entitled to get the personal allowance 'payable to them at the time of their retirement included for the purpose of calculating the pension amount of as under:-- That the appellants who have retired during the period commencing from 16-6-1994 to 23rd May, 1996 will be entitled to inclusion of the personal allowance for the purpose of computing the pension payable to them."
(iii) Civil Petitions Nos. 1776 to 1820, 1824, 1826, 1895, 1911 and 1588 of 2000 and 11 of 2001.
Syed Mustajab Ahmed and others v. Secretary Ministry of Finance, and others.
"Further, it is common ground between the parties that Secretariat Allowance/Personal Allowance now stands merged into the pay of civil servants concerned. The parties are also one on the point that the petitioners would not be entitled to any such raise in their pay in that they all attained the age of superannuation before 23-5-1996. That being the position, it would be in the fitness of things to dispose of the petitions with the observation that, notwithstanding the promulgation of the Ordinance the causes of the petitioners require reconsideration by the Competent Authority and in line with the judgment of this Court dated 24-6-1999 in AsgharMehmood's case as expeditiously as possible but not later than ninety days from the receipt of a copy of this order. Order accordingly. If any adverse order is passed against the petitioners they shall be at liberty to approach the Tribunal for the redress of their grievance in accordance with law."
' Federal Service Tribunal
(iv) 1996 PLC (CS) 1224.
5. There is another aspect of this case that the denial of financial benefits is a recurring liability and the cause of action is renewed each time when the person is paid less. Thus, the issue of limitation can also be met on this ground as well.
6. It is to be noted with regret that despite the clear ruling by the superior Courts in unambiguous terms the Finance Division still has the impunity to refuse the benefit to the helpless pensioners on the ground that it was a judgment in personam and not a judgment in rem. We fail to appreciate why generalization of the galaxy of judgments is being narrowed down as a decision in an individual case and why the poor pensioners are compelled to seek their remedies individually.
7. It was argued on behalf of the respondents that the extension of benefit will open a Pandora box and all the pensioners will agitate the issue with greater force. We are sorry to observe that if the law is to be implemented, it has to take effect despite financial constraints. Even otherwise in this case the petitioner wants the restoration of a sum of Rs.270 p.m. With effect from 1-7-1980 till 1-7- 1985 when the benefit was extended to all the pensioners. Huge money is not involved in this case and we do not think there, will be hundreds of pensioners retired earlier than 1980 who will get benefit out of this liberalized scheme.
8. With these observation, the appeal is accepted and it is hereby directed that the pension of the appellant may be revised with effect from 1-7-1980 without any reduction or deduction, in terms of Finance Division's Notification dated 28-6-1980 and the arrears so found due may be released to the appellant with costs. Parties be informed.
(v) Appeal No.498(R)CS of 2001.
Roshan Ali Mangi v. Secretary, Finance Divisional decided on 14-5-2002.
8. We feel that the principle laid down in the Supreme Court's judgment in Civil Appeal No.1298 of 1995, 3; 4 and 2006 of 1998 should also be applicable to the appellant's case.
(vi) Appeal No.875(R) 1998.
' Rao Fazal Khan Akhtar v. Secretary Establishment Divisidn and another.
9. Therefore', unless it is made an overriding principle that officers who retire in the same grade shall be given the same pension and other benefits irrespective of their date of retirements, this benefit of Orderly Allowance cannot be given to all officers who have retired in Grad-20.
10. We, therefore, agree with the interpretation of the Ministry of Finance that the benefit given vide their O.M. Dated 29-9-1991 is restricted to those officers who will retire after that date. The appeal is therefore dismissed with no order as to costs.
(vii) Appeal No.1473(R) of 1999.
' Rao Fazal Khan Akhtar v. Secretary Establishment Division and another.
' We have heard appellant who appeared himself and learned counsel for the respondents. The appellant relied upon the judgment of the Hon'ble Supreme Court of Pakistan in S.A.M. Wahidi's case which in our opinion is personam in nature and cannot be applied in rem and secondly, if we consider it as personam a Pandora Box will be opened for Government of Pakistan to bear huge additional financial burden in the existing situation of the country. Thirdly, this matter has already been settled by this Tribunal vide judgment dated 1-4-1999 against which the appellant should have approached the Hon'ble Supreme Court of Pakistan but he failed to do so. Accordingly the appeal is hit by doctrine of Res judicata and the Tribunal cannot revise its own judgment. The appeal being incompetent is, therefore, dismissed with no order as to costs.
(viii)Appeal No. 2001 (R) of 1999Aizaz Hussain Zuberi v. Ministry of Finance, and another
7. The emphasis is in the word of on retirement i.e. In future and not on those who have been refited prior to the date. The intention of this letter is clear that it will be applicable to those who have retired after the date of the Officer Memorandum and not to those who have been retired before this date.
8. Therefore, is the light of the earlier judgments of the Tribunal and legal interpretation of the 0.M, the appeal is misconceived and is, therefore, dismissed with no order as to costs.
8. In our view, the argument of the respondent that the Supreme Court's judgment is S.A.M. Wandi's case is personam in nature is not tenable because the said judgment has laid down a principle which, gives it a character of judgment in rem. Here it would be relevant to quote Supreme Court's judgment in the case of Hamid Akhtar Niazi v. Secretary Finance, reported in 1996 SCMR 1185 wherein the Honourable judge observed: ".....That the Tribunal or this Court decides a point of law relating to the terms of service of a civil servant which covers not only the case of civil servant who litigated, but also of other civil servants, who litigated, but also of other civil servants, who may have not taken any legal proceedings, in such a case, the dictates of justice and rule of good governance demand that the benefit of the above judgment be extended to other civil servants, who may not be parties to the above litigation instead of compelling them to approach the Tribunal or any other legal forum."
9. , As would be observed from para. 7 ibid, of the eight cases (i to viii), five (i to v) had been decided by the Honourable Supreme Court of Pakistan and this Tribunal on the principle that the appellants, who were in receipt of the benefit at the time of their retirement, were entitled thereto even thereafter but the last three decisions (vi to viii) of this Tribunal were to the contrary that the benefit was restricted to the officers retiring after a specific date given by the Finance Division, and out of these three judgments the one mentioned at No. Vii was ,decided on the dectrine of res judicata. The present appellant was drawing orderly allowance (i.e. Special Additional Pension) at the time of his superannuation, thus the denial thereof to him afterwards would not be in the interest of good governance and in consonance with the principle of natural justice. We opine that to keep the same taintless and beyond discrimination, he should by extended the same benefit which has been allowed to the officers who retired for Government service on or after 19-2-1991.
Finance Division may also undertake an exercise to ameliorate the financial hardship being faced by the vanishing category of the pensioners, who would be presently in their mid-seventies, to bring them at par with slightly junior pensioners and take a sympathetic decision in that direction as they are senior citizens too.
10. As for the point of limitation, the Hon'ble apex Court has held in a number of similar cases that the period specified for preference of appeal would not be applicable where financial benefit is involved. We, therefore, condone the delay, if any, in preference of this appeal.
11. Pursuance to the above discussion, we are constrained to accept the appeal set aside the impugned order dated 20-9-1999 and direct the respondent to allow Special Additional Pension to the appellant w.e.f. 19-2-1991.
12. No order as to costs. Parties be informed accordingly.
2005 P L (C.S.) 1505 [Federal Service Tribunal] Before Qazi Muhammad Hussain Siddiqui and Rashidlli Mirza, Members GOHRAM KHAN and another versus DEPUTY INSPECTOR GENERAL, PAKISTAN RAILWAYS POLICE, C.P.O. LAHORE and another Appeals Nos.62 and 63 (K)(CS) of 2002. Decided on 19th October, 2004.
Removal from Service (Special Powers) Ordinance (XVII of 2000)--- ----Ss.3, 5 & 6:--Service Tribunals Act .(LXX of 1973), S.4---Removal from service---Appeal--- Appellant serving as a constable was removed from service after issuing him show-cause notice on allegations of previous eight different punishments to him, being reported highly corrupt and having bad reputation---Appellant was proceeded against without holding a regular inquiry against him---Validity---Major penalty of removal from service imposed upon employee, without holding a regular inquiry on alleged serious acts of misconduct, was not justified---Impugned order of removal of appellant from service, was set aside with direction to reinstate appellant in service to the post he was removed from service with all back-benefits for the period he was not gainfully employed elsewhere for which appellant would file an affidavit before Competent Authority---Authority, however could hold 'de novo' inquiry against appellant strictly in accordance with law within specified period. [p. 1508] A 1997 PLC (C.S.) 873; 1993 SCMR 683; 1996 PLC (C.S.) 868; PLD 1994 SC 22; 1985 PLC (C.S.) 219; 1990 PLC (C.S.) 745; 1997 SCMR 1543; 1995 PLC (C.S.) 547; 1989 SCMR 1224 and PLD 1973 SC 188 ref.
Sanaullha Noor Ghouri for Appellants. M. Asghar, for Respondents.
Date of hearing: 16th October, 2004.
' QAZI MUHAMMAD HUSSAIN SIDDIQUI (MEMBER).---By this appeal filed by the Appellant on 5-8-2002 before the Tribunal under section 4 read with section 2 of the Service Tribunals Act of 1973, the Appellant has challenged the order of his removal from service dated 22-12-2001, passed by respondent No.2. His departmental appeal dated 2-1-2002 was not replied by the Respondent No.1 within the statutory period of 60 days; hence, this appeal with a prayer to set aside the impugned order of removal from service or alternatively to remand the case to the Respondents Department for de novo disciplinary action in accordance with law.
2. The Appellant was a Constable in the Railway Police at Sukkur when a show-cause notice dated 22-11-2001 was issued to him containing the following allegations:-- "(1) Awarded 8 different punishments:--
(i) Censured in 1981 for absence, (ii) 3 days E.D. For absence 1988, (iii) 5 censured in 1992 twicely, 1997 and 1998 twicely, for absence, (iv) WIT/1 year in 1998 for absence.
(2) Reported highly corrupt takes bribe and enjoys bad reputation.
(3) That you do not enjoy a good reputation and as such you may reasonably be considered as corrupt."
' The Appellant replied the show-cause notice denying the allegations against him. The reply was not found satisfactory and after personally hearing the Appellant, the Respondent No.2 removed him from service vide impugned order.
3. We have heard the learned counsel for the parties and peruses the record as also the authorities, cited at the bar.
4. The learned counsel for the Appellant argued that the Appellant had been punished under Removal from Service (Special Powers) Ordinance, 2000, but the Respondents having taken the disciplinary proceedings against the Appellant strictly in accordance with law. He further pointed out that no statement of allegations was supplied to the Appellant; that there was no complaint against the Appellant and no other documentary evidence was supplied to the Appellant. The learned counsel stated that the allegations were vague and of general nature and these allegations were serious in nature and required to be proved by means of evidence, but no inquiry whatsoever Was held. The learned counsel argued that where serious allegations of fact had been denied by the accused official, regular inquiry was necessary and imposing of major penalty without such inquiry was absolutely illegal, as held by the Hon'ble Supreme Court in many cases.
The learned counsel cited 1997 (CS) 873, 1993 SCMR 683 and 1440, 1996 PLC (C.S) 868, PLD 1994 SC 22, 1985 PLC (C.S.) 219 and 245 and 1990 PLC (C.S.) 745 and 1997 SCMR 1543. The learned ounsel further stated that under Railway Rules the minor penalties mposed on the Appellant already stood waived off and the Appellant aving already undergone the minor punishments could not be Subjected to "double jeopardy". Reliance was placed on 1995 PLC (C.S.) 547, 1989 SCMR 1224 and PLD 1973 SC 188.
5. The main contention of the learned counsel for the Respondents was that the Railway Police employees were not governed by the Railways Rules, but they were governed by Railways Police Act and the Rules 1980. He contended that the minor penalty to the Railways Police employees would not be waived off just like the minor punishments awarded to the Railway employees.
6. In rebuttal, the learned counsel for the Appellant contended that Railways Rules also applied to the Railway Police employees. He referred us to rule-18(2) of the Railway Police Act 1977 and the Rules 1980 wherein, as pointed out by him, it has been provided that "the terms and conditions of service of the officers, members and ministerial staff shall, in respect of the matters not provided in these rules be the same as are applicable to the employees of the Pakistan Railways".
7. We then asked the learned counsel for the Respondents whether the punishment to the Appellant, who had already undergone minor punishments, would now be justified in spite of the fact that there was no fresh cause of action for proceedings against the Appellants. The learned counsel for the Respondents was unable to make any satisfactory reply.
8. In view of what has been said above, we are of the firm opinion that major penalty of removal from service imposed upon the Appellant, without holding a regular inquiry on the alleged acts of misconduct, was not justified. We, accordingly accept the appeal, set aside the impugned order and direct the Respondents to reinstate the Appellant in service to the post he was removed from service with all back-benefits for the period he was not gainfully employed elsewhere A for which he shall file an affidavit before the Competent Authority. However, it will be open to the Respondents to hold a "de novo" inquiry against the Appellant strictly in accordance with law, within a period of four months. No order as to costs.
8A. This judgment shall mutatis mutandis apply to the identical Appeal No.63(K)(CS)/2002 filed by Muhammad Ilyas Bullo.
9. Copies of the judgment be sent to the parties and to the relevant quarters.