' K.B. ABID (MEMBER-II).--- Brief facts of the case are that appellant Mirza Muhammad Iqbal Ex- Headmaster Government High School, Narowal was served a show-cause notice on 29-3-2002 by Additional Secretary Education Department containing the following irregularities:--
(i) He had irregular appointments of Messrs Qurban Ali and Waheed Akram, PTC teachers, in Government P.S. No,II Badomalhi and Government 'Maktab School Padial, respectively. Although both teachers were terminated from their services, being irregular still Government sustained a loss of Rs,3,79,876 on this score.
(ii) He had awarded PTC regular grade, on the basis of forged and bogus PTC result card to Mr. Muhammad Suleman, PTC teacher, GPS Jegal and Government sustained a loss of Rs,3,61,360.
(iii) He had drawn an amount of Rs,49,260 as loan against TA/DA bills but did not refund.
2. The appellant was directed to furnish reply to show-cause notice within the mandatory period of 14 days. In reply to show-cause notice the 'appellant pleaded that allegations Nos.(i) and (ii) are unfounded and of frivolous nature. Regarding allegation No,(iii) he has not committed any irregularity. It is department who is required to discharge its own liabilities. It is neither Government money nor has Government sustained any loss due to fraud. The appellant pleaded that the proceedings under rule 1.8 of Pension Rules cannot be initiated except in cases of dismissal or removal from service. The pension cannot be withheld or withdrawn in anticipation of a result of any inquiry proceedings under clause (b) of the Rules.
3. The appellant had also given additional defence regarding allegation No,(i) containing the appointment of Mr. Qurban Ali and Waheed Akram PTC teacher. The allegation No,(ii) was also defended by the appellant. Regarding allegation No,(iii) the appellant pleaded that payment of TA/DA bills was charged valid and admitted by DEO, Narowal. The appellant assured that after clearance of TA/DA bill, the matter of the outstanding amount would be settled.
4. The Additional Secretary (General) Education Department (Schools) vide order, dated SO(G- IV)2-171/2000, dated 2-5-2002 had exonerated appellant from charge Nos.(i) and (ii). The matter regarding charge No,(iii) was kept pending till decision of Honourable Lahore High Court. In pursuance of this order of the Additional Secretary (General) Schools the SO(G-IV) had conveyed to DAO Narpwal that department had decided to release pension in favour of appellant and withhold the amount of Rs,49,260 subject to settlement of the matter of loan taken by appellant from different funds. The appellant aggrieved by this order of departmental authority had filed appeal before Secretary Education Government of Punjab under section 21 Government of the Punjab Civil Servants Act, 1974. The appellant had also filed Writ Petition No,6305 of 2005 before Honourable Lahore High Court, Lahore. The direction was given by the Honourable Lahore High Court to Secretary Education to dispose of the pending appeal of the appellant within the period of 2 months. The Special Secretary Government of Punjab on the direction of Honourable Lahore High Court, Lahore had afforded the appellant opportunity of personal hearing on 15-6-2006 for disposal of the pending departmental appeal. The appellant in the said representation and at the time of personal hearing before Special Secretary pleaded that orders regarding withholding of amount of Rs,49,206 out of pensionary benefits are unlawful. The Special Secretary Schools Education decided representation and ordered ex post facto approval for upholding the decision of Additional Secretary (General)/Pension Sanctioning Authority, dated 2-5-2002.
3 (sic). Aggrieved by the orders of departmental authorities, the service appeal has been filed in PST.
4 (sic). Learned counsel for the appellant has argued and stated that the orders passed by the Special Secretary (Schools) are unlawful, arbitrary and against the principles of natural justice. The withholding of pension was required to be probed through an inquiry. The orders of withholding of the pension have been issued arbitrarily and appellant has been condemned unheard. According to Rule 1.8(a), it is only the Government in the Education Department which can withhold or withdraw a pension or any part of it but in the instant case, an amount of Rs,49,260 has been withheld by the Pension Sanctioning Authority/respondent No,1, through the impugned order, dated 2-52002. The order of Additional Secretary (General) being violative of Rule 1.8 of the Pension Rules, is not maintainable under the eyes of law. Further reference has been given to serial No,20(iv) of Appendix "A" of Punjab (Civil Services) Delegation of Powers Rules, 1983 which is reproduced as below:-- "20(iv) Additional Secretary, Government of the Punjab, in the Punjab Civil Secretariat, may sanction pension in respect of officers in BS-18 and above subject to the condition that if any reduction is involved, orders of the Appointing Authority shall be obtained."
5. The counsel has referred to the policy letter No,SRO-I (S&GAD)7-1/72, dated 23-10-1973 issued by Government of the Punjab which illustrates the provisions of Rule 1.8 of Pension Rules. The Government has right to recover from the pensions, the amount of any pecuniary loss which it has suffered while the pensioner was in service. It is however, to be noted that this power cannot be resorted to, after efflux of one year from the date of retirement of the pensioner.
6. Respondents have opposed the arguments of the counsel and stated that the appellant had drawn an amount of Rs,49,260 as a loan against his TA/DA bills but not returned. The appellant had drawn the amount from Students Fund which was against the policy. The respondents have further mentioned that the proceedings against the appellant were conducted under Rule 1.8. The misappropriation of Rs,49,260 from Boys Funds, was irregular. It was trust money. It was a serious charge that tantamounts to grave misconduct on part of the appellant. The claim of the appellant was withheld uptil decision of the Honourable Lahore High Court, Lahore. The said amount was withheld and effected by competent Authority after observing all codal formalities under the relevant provision of law.
7. Arguments of the counsel heard, record perused. The plea of the appellant and respondents have to be examined in the light of prevalent rules, policy and law. The appellant had been retired from service i,e, 8-3-1999. The show-cause notice to the appellant was served on 29-3-2002 i,e, after expiry of period of 3 years. The Rule 1-.8 clearly mentions that if any order regarding withholding of pension or any part of it is issued to the concerned person, he shall be given the opportunity to vindicate his position. The appellant was given the opportunity by way of show- cause notice. Practically, the Pension Sanctioning Authority should have probed the matter through regular inquiry, so that opportunity to produce the defence could have been availed by the appellant. The Pension Sanctioning Authority had withheld the amount of Rs,49,260 without recording any reasons. The Pension Sanctioning Authority in its letter dated 2-5-2002 had also given finding in favour of the appellant since matter is sub judice in Honourable Lahore High Court, Lahore, it cannot be said that appellant has embezzled the amount of Rs,49,260. Furthermore, the amount of TA/DA bills has not been paid to him. This defence of the appellant is correct because the departmental authorities had not objected to TA/DA claim of the appellant. The element of embezzlement is baseless because on record respondents have not proved any aspect of embezzlement. The only irregularity committed by the appellant is charging of the amount under wrong head of the account. The Authority should have probed the matter through regular process of inquiry when the appellant was in service. The proceedings were started after 3 years of the retirement. The show-cause notice and orders of the Pension Sanctioning Authority are beyond mandatory period of one year. It was unlawful order and against the policy of the Government (reference S&GAD letter No,SOR-I(S&GAD) 7-1/72, dated 23-10-1973.
8. The Special Secretary Schools Education had passed the orders on 18-7-2006 on the specific directions of Honourable Lahore High Court, Lahore. In this order, ex post facto approval to the orders dated 2-5-2002 of Additional Secretary (General) has been accorded. According to serial No,20(iv) of Punjab (Civil Services) Delegation of Powers Rules, 1983 the Additional Secretary was competent to sanction the pension of appellant but in case of reduction or withholding of the pension, the orders were required to be issued by the Appointing Authority. Iii the light of this rule, the orders for withholding of amount of Rs,49,260 was unlawful. The departmental authority cannot condone the irregularity committed by the incompetent authority with retrospective effect because such order adversely effect the basic right of retired civil servant who has earned it after long service in Government. The proceedings against the appellant under Rule 1.8 should have been initiated within mandatory period of one year. In this particular case, the department had initiated the proceedings after the period of 3 years. The only irregularity of charging of amount to wrong head of account remains there. This can be covered by sanctioning expenditure under TA/DA and affording credit to Student Fund. The departmental authorities have wasted the time by not proceeding against the appellant within the prescribed period.
9. On the basis of these facts and rules and provisions of law, the departmental authorities have no case of withholding pension of appellant. The orders of departmental authorities are set aside.
Appeal is accepted.