The petitioner, Muhammad Siddique, through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has called in question the show-cause Notice No, 1582/EC dated 22.12.2010 issued by the respondent under the provisions of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 and Notice No, 998/AC dated 31.12.2010 for depositing Rs,2550/- in the Government Treasury.
2. It has been stated in the petition that the petitioner after having rendered service of 37 years 5 months and 11 days stood retired on 14.5.2004 as Forest Guard from the Forestry, Wildlife and Fisheries Department, Government of the Punjab and the Competent Authority released his pension vide Pension Payment Order dated 11.06.2004; that consequent upon sanction of pension and after a lapse of about four years, the respondent, under the provisions of the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 (PEEDA) issued a notice dated 22.12.2010 whereby the petitioner was called upon to show-cause as to why one or more of the penalties as prescribed in Section 4 of the PEEDA be not imposed in respect of the allegation set out therein; that on 31.12.2010 the respondent issued another Notice No, 998/AC whereby the petitioner was asked to deposit Rs, 2550/- in the Government treasury; and, that the above said notices are void as the same have been issued without lawful authority and jurisdiction.
3. In response to notice issued by this Court the respondent has submitted parawise comments in which with respect to show-cause notice dated 22.12.2010 it has been stated that petitioner while posted at' Renala Forest Range got registered FIR No, 548/2002 dated 17.12.2002 at Police Station Saddar Renalakhurd, in respect of theft of trees worth valuing Rs, 70,000/- which was filed by the Court on 16.10.2006 due to non-prosecution by the petitioner. The Audit Party conducted the audit of the year 2003-04 and raised audit objection vide para No, 5.6.4/200304 about the above said government loss. In pursuance of above audit objection a show-cause notice dated 22.12.2010 has been issued to the petitioner. As regards recovery notice dated 31.12.2010, the respondent in his comments has submitted that the petitioner during service issued the damage report (i,e, forest case No, 199/2002-03) but he did not adopt any legal action in this regard and this inaction caused loss of Rs, 2550/- to the Government and resultantly in pursuance of Audit Para No 14/2002-03 the proceedings were initiated under PEEDA and finally vide Order No, 160/OFD dated 24.6.2010 recovery of Rs, 2550/- was imposed on the petitioner.
4. The instant petition, with the concurrence of the learned counsel for the parties, is heard today as pacca matter.
5. It has been canvassed with vehemence by the learned counsel for the petitioner that the respondent after having sanctioned the petitioner's pension cannot initiate proceedings against the petitioner under PEEDA and, thus, the notices impugned in this petition have been issued without lawful authority and jurisdiction. Learned Addl, Advocate General controverts the above plea and submits that provisions of PEEDA are applicable to retired employees of government and, therefore, the notices, impugned in this petition, are valid. The question which requires determination in this petition is as to whether the respondent after the retirement of the petitioner could initiate proceedings under PEEDA and impose penalty upon him? The answer to this question is available in Section 1 and 21 of the PEEDA which read as under:- "1. Short title, extent, commencement and application:
(1) This Act may be called the Punjab Employees Efficiency, Discipline and Accountability Act, 2006.
(2) It extends to the whole of the Punjab.
(3) It shall come into force at once.
(4) It shall apply to
(i) employees in government service;
(ii) employees in corporation service; and
(iii) retired employees of government and corporation service; provided that proceedings under this Act are initiated against them during their, service or within one year of their retirement"
Section 21 of PEEDA is also relevant and the same reads as under: '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 Ac and the rules made thereunder: Provided that in case of retired employee, the proceedings so initiated against him shall be finalized no 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."
The More-cited provisions evince that proceedings under PEEDA may be initiated against a retired employee of government provided the same are: (i) initiated against him during his service or within one year of his retirement; and, (ii) finalized not later than two years of his retirement. The time lag inserted in the above referred provision of law is manifestly intended to safeguard the interest of the pensioners so that the sword of Democles should not hang upon them for an indefinite period. It is an admitted fact that the petitioner stood retired as Forest Guard of 14.5.2004; the pension was sanctioned on 11.6.2004; and, the proceedings under PEEDA were initiated after a lapse of about four years, from the date of retirement, against the petitioner. In these attending circumstances the provisions of PEEDA were not applicable to the petitioner as neither the proceedings under PEEDA were initiate against him during his service nor within one year of his retirement. Thus, due to lapse of time the proceedings under the PEEDA could not be initiated against the petitioner and resultantly no punishment could be inflicted thereunder.
6. Learned Addl. Advocate General, Punjab by relying upon Notification No, FD(M-REC)2-18/2001 (Advice) dated 19.11.2001 issue by the Finance Department, Government of the Punjab has contended that cases where any audit para is pending against the retiring government servant the pension for such employee is not withheld an the same is released after obtaining an undertaking on the stamp paper from the retiring government servant to the effect that in case the recovery is established at any stage against him then he will be liable to pay the amount of recovery. He submitted that in pursuance of above said notification the petitioner also executed an undertaking and made himself liable for any arrears against him; and, thus notwithstanding the lapse of four years the respondent in pursuance of Audit Paras was we within his right to effect recovery of disputed amount from the petitioner. The Notification relied upon by the learned Addl.
Advocate General reads as under:-- "No: FD(M-Rec)2-18/2001(Advice)
GOVERNMENT OF THE PUNJAB FINANCE DEPARTMENT November 19, 2001 To, All Administrative Secretaries, Government of the Punjab.
Subj: GRANT OF NDC TO RETIRING GOVERNMENT SERVANTS INVOLVED IN MISAPPROPRIATION/EXBEZZLEMENT & IRREGULARITIES ETC. Reference subject cited above.
2. The instructions issued by Finance Department vide No, FD(M-11)-10/98-2000(P), dated 11.7.2000 provide guide lines to the departments that the government losses pointed out in the audit paras should be finalized well before the retirement of the employee concerned. Further to ensure that No Demand Certificate should not be issued to officials involved in audit para/observation in connection with the financial irregularities.
2. It has been observed that amount mentioned in the audit para relating to the retiring government servants is with-held from commuted pension of retired government servant till the settlement of audit para. The D.G. Civil Audit has also mentioned that with-holding of pension case of an employee for clearance of audit para/report relating to his tenure of posting, is unfair unless the personal involvement of an employee is established.
3. It is, therefore, clarified that in cases where any audit para is pending against the retiring government servants the pension for such employees may not be with-held and an undertaking on the stamp paper may be obtained from the retiring government servants that in case the recovery is established at any stage against the individual then he will be liable to pay the amount of recovery.
Sd/- (Karim Bakhsh Abid)
Addl. Finance Secy. (Monitoring)."
A bare perusal of the above said notification reveals that in respect of issuance of No Demand Certificate (NDC) for the purpose of release of pension the following guidelines have been provided to the Government Departments:
(i) the Government losses pointed out in the audit paras should be finalized well before the retirement of an employee;
(ii) No Demand Certificate should not be issued to officials involved in audit para/observation in connection with the financial irregularities; and
(iii) where any audit para is pending against the retiring government servant the pension for such an employee may not be withheld and an undertaking on the stamp paper may be obtained from the retiring government servant that in case a recovery is established at any stage against the individual then he will be liable to pay the amount of recovery.
In the case in hand, no audit para in respect of financial irregularities was pending against the petitioner at the time of his retirement and, therefore, No Demand Certificate (NDC) was issued for the sanction of pension. Needless to observe here that allegations on the basis of which impugned notices have been issued neither pertain to misappropriation/embezzlement and financial irregularities nor the same can be attributed to .the petitioner as they relate to departmental inaction/slackness/negligence for the reason that after retirement of the petitioner, it was the duty of his successor to pursue the criminal cases i,e, FIR No, 548/2002; and, forest case No, 199/2002-03.
Without delving into the issue as to whether the allegations levelled against the petitioner constitute "misconduct"' within the contemplation of Section 2(n) of PEEDA, it is suffice to say that the respondent by absolving the successor incumbent and relying upon the above said notification dated 19.11.2001 could not saddle the petitioner with the responsibility/ losses which were determined after the sanction of his pension.
7. It is well established principle that when an authority passes an order which is within its competence, it cannot fail merely because it' purports to be made under a wrong provision if it can be shown to be within its power under any other rule, and the validity of the impugned order should be judged on a consideration of its substance and not of its form. The principle is that the Court must ascribe the act of a public servant to an actual existing authority under which it would have validity rather than to one under which it would be void. (See "P. Balakotaiah Vs. Union of India and others" AIR 1958 SC 232 at p. 236). Being conscious of above said principle of law, I asked the learned Addl. Advocate General to cite any provision of law under which disciplinary proceedings could be initiated and penalty could be imposed on the petitioner. In response to above query, learned Addl. Advocate General referred Rule 1.8 of the Punjab Civil Service Pension Rules, 1963. It is necessary to set out in extenso Rule. 1.8 which reads 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, (the pension sanctioning authority shall give full opportunity of 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.
(Note: If the departmental proceedings are not completed within one year after retirement of the government servant, he may be allowed to draw up to 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."
A plain reading of both clauses (a) and (b) of above cited rule would however, make it at once clear that each clause is a ,self-contained and independent provision designed to cover two entirely different situations. Under clause (a) maintenance of "good conduct" is made an inseparable condition for the grant or continuance of pension to a government servant and the government reserves to itself plenary power to withhold or withdraw a pension or any part thereof if the pensioner is convicted for serious crime or found guilty of grave misconduct whether during or after completion of his service. Admittedly clause (a) is not attracted to the facts of instant case as the petitioner has neither been convicted for serious crime nor found guilty of grave misconduct during or after completion of his service. Clause (b) of Rule 1.8, however, empowers the government to order recovery from the pension of the whole or any part of any pecuniary loss caused to the government if the pensioner is found in departmental or judicial proceedings to have been guilty of grave misconduct or negligence during his service. This clause also does not rescue the respondent as neither the petitioner during his service was found, in judicial or departmental proceedings, guilty of causing losses due to his negligence or fraud nor any departmental proceedings were initiated against the petitioner within a year from the date of his retirement and this view finds support from the judgment rendered by the Hon'ble Supreme Court of Pakistan in the case of The Government of NWFP through Secretary of the Government NWFP Communication and Works Department, Peshawar Vs. Muhammad Said Khan and another (PLD 1973 SC 514) and relevant extract whereof reads as under: "It must now be taken as well-settled that a person who enters Government service has also something to look forward 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. Conversely full pension admissible under the rules is not be given as a matter of course unless the service rendered has been duly approved (See Art. 470, Civil Service Regulations). It is equally well settled that if the service has not been thoroughly satisfactory, the authority sanctioning the pension is empowered under the said Article to make such reduction in the amount as it may deem proper. This power is however exercisable only before pension is actually sanctioned."
8. The learned Addl. Advocate General also raised an objection regarding the maintainability of this petition. In this context he submitted that the respondent under the provisions of PEEDA passed an Order No, 160/OFD dated 24.06.2010 and imposed a penalty of recovery of R.s.2550/-; that the Notice No, 998/AC was issued for the implementation of above said order; and, that against order dated 24.6.2010 the petitioner had the remedy of appeal under Section 19 of the PEEDA before the Punjab Service Tribunal. The objection raised by the learned Addl. Advocate General requires appraisal of Section 19 of PEEDA which reads as under: "19. Appeal before Punjab Service Tribunal.--(1) Notwithstanding anything contained in any other law for the time being in force, any employee aggrieved by any final order passed under Section 16 or Section 17 may, within thirty days from the date of communication of the order, prefer an appeal to the Punjab Service Tribunal established under the Punjab Service Tribunals Act, 1974 (Pb. Act, DC of 1974).
(2) If a decision on a departmental appeal or review petition, as the case may be, filed under Section 16 is not received within a period of sixty days of filing thereof, the affected employee may file an appeal in the Punjab Service Tribunal within a period of thirty days of the expiry of the aforesaid period, whereafter, the authority with whom the department appeal or review is pending, shall not take any further action." he reading of above said Section 19 unfolds that any employee aggrieved by any final order under Section 16 or Section 17 may, within dirty days from the date of communication of the order, prefer an Appeal to the Punjab Service Tribunal. The word "employee" has been defined in Section 2(h) of the PEEDA and the same is reproduced below r facility of reference: "(h) "employee" means a person:--
(i) in the employment of a corporation, corporate body, autonomous body, authority, statutory body or any other organization or institution set up, established, owned, managed or controlled by the Government, by or under any law for the time being in force or a body or organization in which the Government has a controlling share or interest and includes the chairman and the chief executive and the holder of any other office therein; and
(ii) In government service or who is a member of a civil service of the province or who holds a civil post in connection with the affairs of the province or any employee serving in any Court or tribunal set up or established by the Government, but does not include a Judge of the High Court or any Court subordinate to the High Court, or any employee of such Courts;"
The cumulative reading of Section 19 and Section 2(h)(ii) leads to irresistible conclusion that only a person in government service or who is member of a civil service of the province or who holds a civil post in connection with the affairs of the province or any employee serving in any Court or tribunal being aggrieved by an order passed under Section 6 or Section 17 may prefer an appeal before the Punjab Service Tribunal. The petitioner being a retired person does not fall within the definition of "employee" given in Section 2(h) and, therefore, had no remedy of appeal as canvassed by the learned Addl. Advocate General. In the case in hand, as stated above, the PEEDA was not applicable to the petitioner and, therefore, the respondent by initiating the proceedings thereunder against the petitioner went out of the law and exercised a jurisdiction not vested in him by law. It is settled principle of law that the High Court may control action of an administrative or executive officer by an appropriate order if he:
(a) goes out of law, i,e, exercises jurisdiction not vested in him by law;
(b) wrongly denies or omits to exercise a jurisdiction;
(c) where the law under which he acts prescribes the manner in which he is to act, materially departs from that law.
(d) Thus this Court can entertain this petition as the orders/notices impugned therein are void ab initio.
9. In view of above, this petition is accepted and the impugned show-cause Notice No, 1582/EC dated 22.12.2010 and Notice No, 998/AC dated 31.12.2010, both issued by the respondent, are set aside and declared to have been issued without lawful authority and of no legal effect.