' IJAZ UL AHSAN, J.--- This petition arises out of inaction on the part of the respondents to release pensionary benefits of the late husband of the petitioner. The petitioner was an employee of respondent No,1, who attained the age of superannuation on 19-11-1999, while he was employed as Line Superintendent, Baseer Pur, Sub-Division, Okara. In anticipation of his retirement, he wrote to the concerned Department of the respondent seeking clearance of his liabilities. Vide letter dated 3-12-1999, all relevant departments informed the late husband of the petitioner that all audit paras relating to the period of the tenure of his service stood verified and cleared and there was nothing outstanding due or payable. The petitioner retired and claimed his pensionary and other related benefits, which were denied to him for one reason or the other.
2. The learned counsel for the petitioner has pointed out that 10 years have elapsed since the petitioner's husband retired and died, yet his pensionary benefits have been withheld without lawful justification, which continues to cause grave hardship for his widow and children. My attention has been drawn to a Notification dated 17-4-1967, which provides that if there are any allegations against a retired official relating to misappropriation or otherwise, such proceedings must be initiated at least one year before his retirement and finalized at the most within one year after his retirement, failing which all departmental proceedings which empower the department to withhold his pensionary benefits stand abated. The said notification further provides that the official responsible for such abatement shall be held responsible for negligence on his part. In support of his contention, the learned counsel relies on Shaukat Ali and others v. Government of Pakistan through Chairman, Ministry of Railways and others (PLD 1997 SC 342), Syed Abdus Salam Kazmi v. Managing Director, WASA, Multan and another [2005 PLC (C.S.) 244], Muhammad Anwar Bajwa v. Chairman, Agricultural Development Bank of Pakistan, Islamabad [2001 PLC (C.S.) 336], Zahid Ali, Assistant Excise and Taxation Officer (Retd.) v. Secretary, Excise and Taxation Department and another [2007 PLC (C.S.) 413]; Mirza Muhammad legal v. Additional Secretary (General), Government of the Punjab Education Department, (School Wing) Lahore and another [2007 PLC (C.S.) 432] and Chief Secretary, Government of Sindh and another v. Umar-ud-Din [2007 PLC (C.S.)
662].
3. It is further pointed out that the matter was agitated by the petitioner before the Hon'ble Federal Ombudsman who issued a direction to the respondent department to clear the dues of the petitioner's late husband within sixty days. The respondent ignored the order of the learned Federal Ombudsman with impunity. The said order dated 20th of May, 2002 was not complied with and the respondents continue to, withhold the lawful dues of the petitioner's husband, many years after his death while his family languishes.
4. The learned counsel has further relied on Ha/i Muhammad Ismail Memon Advocate Complainant's case (PLD 2007 SC 35) to point out that the apex Court has taken serious exception to the trend of the Government departments to withhold lawful pensionary benefits of employees without any lawful justification, which causes hardship and inconvenience to the retired officials and their families. He, therefore, contends that the continued failure/inaction on the part of the respondents needs to be taken judicial notice of in view of the fact that the legal and constitutional rights of the petitioner guaranteed by Articles 9 and 14 of the Constitution are constantly being violated.
5. The learned counsel for the respondents submits that the record of the late husband of the petitioner was questionable and blemished. He was charged with misappropriation of materials, therefore, different audit paras were pending against him due to which his benefits were withheld.
He argues that even if the issue of pending audit paras is not pressed, it cannot be denied that various penalties were imposed upon the petitioner by the competent authority which aggregates to a sum of Rs,2,47,305. In this regard he has drawn my attention to orders dated 30-4-2003, 31-5- 2003 and 30-8-2006 passed by different functionaries of the department. When confronted with the fact that the late husband of the petitioner retired in 1999, how could penalties be imposed four years later, the learned counsel for the respondent did not have much to say. He submitted that the aforesaid orders were never challenged by the predecessor-in-interest of the petitioner and have attained finality. He therefore submitted that the orders in question were passed after due process of law and cannot be agitated or challenged through the present proceedings. What "due process of law" was followed by the department, is unfortunately shrouded in mystery because no such process is visible from the documents available on record. He has, however, candidly admitted that proceedings were not concluded against the petitioner's late husband within one year after his retirement
6. I have heard the learned counsel for the parties and have also gone through the record.
7. Although the petition has not yet been admitted to full hearing, as the learned counsel have been heard at considerable length, this petition is treated as a pacca case and with their consent is being disposed of as such.
8. The petitioner's late husband worked as a Line Superintendent for the respondent/Company and retired from his job on 19-11-1999. Prior to his retirement he wrote letters to the concerned departments of the respondent seeking clearance. Such clearance was issued vide letter dated 3- 12-1999 informing him that all audit paras relating to the period of his tenure of service stood verified and cleared and there was nothing outstanding, due or payable by him. Subsequent to his retirement the late husband of the petitioner received a letter from Chunian Sub-Division informing him that some audit paras were pending against him for the period between July-1997 to June, 1998. The said paras were also settled and letter of clearance was issued by the department.
However, despite the fact that there was no apparent reason to withhold his pensionary benefits, the same were not released to him. Further, he was also denied move over on the ground that his service book was incomplete and the deceased had to run to different departments to get his service book completed. It appears that while the aforesaid matters were pending, the petitioner's husband died in 2007. Since then the petitioner has been approaching the respondents for release of the pensionary benefits of her late husband but to of no avail.
9. The main question that requires determination is whether the IB respondents are justified in withholding pensionary benefits of the husband of the petitioner despite the fact that at the time of his retirement and many years thereafter no disciplinary proceedings had been finalized that may have furnished some legal basis for the department to withhold his benefits. I have gone through the notification dated 17-4-1967 which provides that if there are any allegations against an employee relating to misappropriation or otherwise, such proceedings must be initiated at least one year before his retirement and finalized one year thereafter. If such proceedings are not finalized within the aforesaid time, the right of the department to withhold pensionary benefits stands abated.
10. It is settled law that an employee cannot be penalized for any action which is subject-matter of an inquiry which was not completed before his retirement. Reference in this regard may also be made to rule 54-A of the Fundamental Rules of Service which provides that on attaining the age of superannuation disciplinary proceedings which have not been completed, automatically abate and the civil servant is entitled to receive all pensionary benefits. In this regard reference may usefully be made to the cases of Muhammad Anwar Bajwa, Executive Director, Agricultural Development Bank of Pakistan, 1-Faisal Avenue, Zero Point, Islamabad v. Chairman, Agricultural Development Bank of Pakistan, Faisal Avenue, Zero Point, Islamabad [2001 PLC (C.S.) 336], Bilquis Nargis v. Secretary to Government of the Punjab, Education Department (1983 PLC (C.S.) 1141), Syed Abdus Salam Kazmi v. Managing Director WASA, Multan and another [2005 PLC (C.S.) 244], Haji Muhammad Ismail Memon Advocate Complainant's case (PLD 2007 SC 35) and Muhammad Zaheer Khan v. Government of Pakistan through Secretary, Establishment and others [2010 PLC (C.S.) 559], in which it has been held that the disciplinary proceedings against an employee must be completed before his date of retirement. An employee cannot be penalized for any action which was subject matter of an inquiry and was not completed before his retirement. Reference may also be usefully made to Muhammad Zaheer Khan v. Government of Pakistan, through Secretary Establishment and others [2010 PLC (C.S.) 559].
11. It is also significant to note that despite the fact that the petitioner's husband had retired on 19- 11-1999; the orders relating to imposition of penalty were communicated to him four years later; a perusal of the aforesaid orders makes it abundantly clear that the orders were passed arbitrarily in order to cover up lacunas in the proceedings conducted by functionaries of the respondents and the petitioner was condemned unheard without affording him any opportunity to defend himself.
The learned counsel for the respondent has specifically been asked if the employee was associated with any inquiry, given any opportunity to defend himself or heard before being condemned. His response is that he was called but he did not attend such proceedings. This is an unsatisfactory answer. There is nothing on record that may suggest that any bona fide effort was made to associate the petitioner's husband with any such proceedings. Even otherwise, the orders imposing penalties have been passed in a slip shod and hasty manner and do not meet even the minimum standards required for a lawful and sustainable order. Neither any reason has been recorded nor any basis is given for imposition of penalty. None of these orders is sustainable at law.
The orders are, therefore held to be devoid of any legal sanctity and do not furnish basis for an extreme action to withhold the pensionary benefits of the husband of the petitioner. The matter of alleged outstanding audit paras is equally devoid of any legally sustainable basis and cannot be allowed to stand in the way of release of lawful pensionary benefits to the family of an employee who served the department for the whole of his life. In recording the above findings, I am fortified by the principles laid down inter alia in the following judgments:--- ' In Syed Abdus Salem Kazmi v. Managing Director, WASA, Multan and another [2005 PLC (C.S.)
244], while examining questions similar to those raised in this petition, this court held:--- "This Court in "1995 PLC (C.S.) 817" held as under:- "R. 108---Pension and gratuity---Withholding of---Inquiry pending against civil servant---Law required that the pension and other service benefits should be released to the retiring Government Servant and if any inquiry was pending against him same should be finalized within one year from the date of his retirement."
' In "1983 PLC (C.S.) 832", it has been held that:- "Pension---Cannot be withheld one year after retirement-- Enquiry pending on date of retirement abates on completion of one year."
' The Hon'ble Supreme Court of Pakistan in "PLD 1973 Supreme Court 514" held as under:--- "Pension---No longer a bounty but a right---Cannot be reduced arbitrarily---Pension, however, not given as a matter of course and can be reduced if service not thoroughly satisfactory---Such power, however, exercisable only before pension actually sanctioned."
6. Admittedly in the instant case, inquiry was not concluded during petitioner's stay in service, who retired on superannuation and pensionary benefits were sanctioned, but after five years of his retirement through impugned letter pension has been stopped, which is against the spirit of law.
7. Similarly, inquiry could not continue against the petitioner after his retirement as after his retirement notification he was no more a Government employee. In this behalf learned counsel has rightly referred to a notification issued by the Government of the Punjab, Service, General Administration, Information Department No,S.0.(S),12-12-/82 dated 17th of September, 1982, wherein it was notified as under:--- "after their retirement they are no longer Civil Servants, the disciplinary proceedings against them stand abated.
' Attention should be given to disciplinary proceedings against civil servants reaching the age of superannuation, particularly to the case of those who are to retire within one year."
This fact has further been approved by Service Tribunal Punjab in "1994 PLC (C.S.) 454", wherein it was held as under:--- ' Government and he would cease to be a civil servant on his retirement, removal and dismissal, etc. From service."
' In Muhammad Zaheer Khan v. Government of Pakistan through Secretary, Establishment and others [2010 PLC (C.S.) 599] the Honourable Supreme. Court of Pakistan held as follows:--- _
9. The learned counsel for the appellant in that behalf referred us to F.R.54-A which, for ready reference is reproduced below as inserted by S.R.O.1143(I)/80 dated 10th November, 1980:--- "[54A. If a Government servant, who has been suspended pending inquiry into his conduct attains the age of superannuation before the completion of inquiry, the disciplinary proceedings against him shall abate and such government servant shall retire with full pensionary benefits and the period of suspension shall be treated as period spent on duty.]"
10. From the plain reading of the above Rule it become abundantly clear that what to talk of sending the case back to the department, even the pending disciplinary proceedings against an officer abate if the latter attains the age of superannuation. The Rule entitles such officer to retire with full pensionary benefits and period of suspension is bound to be treated as period spent on duty. In the cirumstances, the question of now sending the matter back to the department for holding de novo inquiry stands out of question. It may be stated at this juncture that the appellant has stated at the bar that he is not interested in claiming any back-benefits and that he is only interested in getting the stigma removed.
11. The question relating to retirement during disciplinary proceedings has not remained restricted to the rule aforesaid but various forums have also taken notice of it. In Bilquis Nargis' case 1983 PLC (C.S.) 1141, the Punjab Service Tribunal held such proceedings to have abated if the officer retired during the course of action. In case of Deputy Director Food v. Akhtar Ali (supra), it was held by a full Bench of this Court that an officer superannuating during disciplinary proceedings ceases to be a civil servant as was rightly so excluded by section (2)(a)(b) of Punjab Service Tribunals Act, 1974. In case of Abdul Wali 2004 SCMR 678(b), it was, again held that an employee could not be proceeded against after superannuation. The principle was reiterated in Sajjad Haider Kazmi's case (supra) where the officer was not only condemned unheard but also had retired. The holding of fresh inquiry was, therefore, disapproved, Muhammad Akhtar former Headmaster was proceeded against by the department after one year of his retirement. It was condemned by this Court in Muhammad Akhtar's case (2007 PLC (C.S.) 400."
' In the case reported as PLD 2007 SC 35, Iftikhar Muhammad Chaudhry, C.J. Writing for the court laid guidelines/issued directions to all government departments in the following terms:--- "It is pathetic condition that government servants, after having served for a considerable long period during which they give their blood and sweat to the department had to die in a miserable condition on account of non payment of pension/pensionary benefits etc. The responsibility, of course, can be fixed upon the persons who were directly responsible for the same but at the same time we are of the opinion that it is an over all problem mostly in every department, where public functionaries failed to play their due role even in accordance with law. Resultantly, good governance is suffering badly. Thus every one who is responsible in any manner in delaying the case of such retired officers/official or widows or orphan children for the recovery of pension/gratuity and G.P. Fund has to be penalized. As their such lethargic action is in violation of Articles 9 and 14 of the Constitution of Islamic Republic of Pakistan, 1973. Admittedly, it is against the dignity of a human being that he has to die in miserable condition and for about three years no action has been taken by the concerned quarters in finalizing the pension case and now when the matter came up before the Court, for the first time, they are moving in different directions just to show their efficiency and to clear their position before the Court. Such conduct on their behalf is highly condemnable and cannot be encouraged in any manner.
' We, therefore, direct that all the Government Departments, Agencies and Officers deployed to serve the general public within the limit by the Constitution as well as by law shall not cause unnecessary hurdle or delay in finalizing the payment of pensionary/retirement benefits cases in future and violation of these directions shall amount to criminal negligence and dereliction of the duty assigned to them. Thus having noticed such miserable condition prevailing in the department particularly relating to the payment of the pension to retired government servants or widows or orphan children, we direct all the Chief Secretaries of the Provincial Governments as well as the Accountant Generals and the Accountant General Pakistan Revenue, Islamabad, to ensure future strict adherence of the pension rules reproduced hereinabove and clear such cases within a period not more than two weeks without fail.
' Similarly, the Chief Secretaries shall also issue instructions along with the copy of this judgment to the Heads of the Departments including responsible officers to initiate and finalize the pension cases well in advance from the date of retirement of Government servant without fail as required by rule 5-2 of Chapter V of the West Pakistan Civil Servants Pension Rules, 1963.
' The object in issuance of above directions to the concerned authorities is only to make them realize their duties and responsibilities, which they owe to the retiring government servants.
' We also direct that in future if there is any delay in the finalization of the pension benefits cases of the government servants, widows or orphan children and matter is brought to the notice of this Court, the head of the concerned department shall also be held liable for the contempt of the Court and shall be dealt with strictly in accordance with law."
12. In view of my finding that the action of the respondents, insofar as, the pensionary benefits of the petitioner have been withheld, is illegal and without lawful justification, I allow this petition and direct the respondents to release all outstanding pensionary benefits of the petitioner which include release of salaries and other arrears from Chunian Division, grant of move over after completion of service book, release of 180 days leave encashment in Depalpur and such other amounts as may be found due and payable according to the terms and conditions of his service and in accordance with law. The petitioner shall also be entitled to costs of this petition.