' Through instant revision petition, judgment and decree dated 18.11.2015, passed by learned Appellate Court has been assailed, whereby judgment and decree dated 18.10.2014 passed by learned trial Court was reversed.
2. Brief facts of the case, as set out in this petition, are that petitioner was in the employment of respondent department and retired in BPS-20 on 14.12.2004. During his posting as Medical Superintendent of Social Security Hospital, Gujranwala, Muhammad Anwar, Accounts Clerk of the Hospital misappropriated an amount of Rs, 244,681/- and, thereafter, he absented from duty with money. The recovery proceedings were also set in motion against the petitioner, being Incharge of the Hospital at the relevant time and consequently, the amount was deducted unauthorizedly.
Petitioner's representation against the said deduction was accepted by the competent authority on 10.01.2005, and it was ordered that the amount be refunded to the petitioner. Petitioner retired from service on 14.12.2004 and his pension was sanctioned on 15.12.2004. He had been drawing his pension, however, through an order dated 09.02.2011, the respondent, in supersession of order dated 10.01.2005, directed the petitioner to deposit the amount which had already been refunded.
The petitioner made representation but of not avail. Feeling aggrieved, petitioner filed a suit for declaration with consequential relief, which was contested by the department and, out of divergent pleadings, issues were framed. Learned trial Court, after recording evidence of parties and hearing the arguments, decreed the suit on 18.10.2014. Being aggrieved, respondent department filed appeal, which was accepted vide judgment and decree dated 18.11.2015. The said judgment and decree has been assailed through instant revision petition.
3. Learned counsel for the petitioner 'submits that in the hierarchy of department, Commissioner is final authority in respect of pension matter, who had already ordered the refund of amount, illegally recovered from the petitioner. He further submits that the element of misappropriation had already been investigated and another employee had been found responsible. He adds that after 6/7 years of retirement, the impugned coercive measures for recovery of the disputed amount could not have been taken against the petitioner, when issue had already been laid to rest by the competent authority. He contends that the impugned judgment and decree is not sustainable in the eye of law.
4. On the other hand, learned counsel for the respondent department defends the impugned judgment and decree and submits that petitioner has failed to point out any illegality or legal infirmity in the impugned judgment, thus, the same is liable to be upheld under the law.
5. Arguments heard. Record perused.
6. The operative part of impugned judgment, reads as under: "7. Question under determination before this Court is whether respondent is immune from depositing the amount shown to be un-reconciled or not. Notwithstanding issuance of Ex.P.1 Letter No, SS.MP.I (228)73 9728 dated 10.01.2005 it has been noted that commissioner despite being supervisory authority of the hospital has no authority to resolve the financial issue particularly regarding audit etc. Respondent in his testimony admitted liability regarding the impugned amount during course of recording cross-examination. Plea of the respondent that provision of PEEDA Act, 2006 absolve matter from any liability as the said Notifications have been issued after period of about 6/7 years and in terms of Section 1 of the PEEDA Act, 2006 proceedings can be initiated against a government employee within one year of his retirement and not thereafter. In my humble view that provision mentioned supra are not applicable to the present circumstances as proceedings against the respondent are not going to be initiated under the said Act but he has been required to pay hack money encashed by him and remained un-reconciled and was ordered to be deducted by the competent Auditing authority. Relevant provision of law applicable to the circumstances of the case of the Section 3(2) of Punjab Civil Services Tribunal Act, 1974 which reads as under: "The tribunal shall have exclusive jurisdiction in relation to matters relating to the terms and conditions of service of civil servants including disciplinary matters."
8. Plea of the respondent that no notice was given to him before issuance of office order No, SS.MP.I(228)/73/1494 dated 09.02.2011 Ex.P.3 and he was condemned unheard and consequently unheard is concerned, Ex.P3 is based upon audit para maintained by the concerned authority and as such; there was no requirement to issue the notice to the respondent/plaintiff as Ex.P.3 tantamount to intimation regarding this recovery of embezzlement which was ordered to be deducted by the concerned auditing team. Respondent/plaintiff by all means was responsible to owed funds/money used during his tenure. The observations and findings recorded by the learned trial Court are reversed on this issue."
7. Perusal of reproduced part of impugned judgment shows that learned Appellate Court, after appraisal of evidence brought on record, came to the conclusion that petitioner is responsible for the amount.
8. The examination of impugned judgment shows that learned Appellate Court has absolutely over looked the fact that the office order dated 09.02.2011 (Ex.P.3) was passed after more than six years of retirement of the petitioner and also the fact that the Punjab Employees Efficiency, Discipline and Accountability Act, 2006 is applicable only to the employees in Government/corporation services and retired employees can be. Proceeded against under the said provisions of law, within one year of the retirement. Reference can be made to Muhammad Siddique v. Divisional Forest Officer Okara (2014 PLC (CS) 253), the relevant part of which reads as under: "The afore-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 petitioners so that the sword of Damocles should not hang upon them for an indefinite period. It is an admitted fact that the petitioner stood retired as Forest Guard on 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 initiated 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."
9. Petitioner retired from service on attaining the age of 60 years, but his pensionary benefits were withheld on the ground of audit objection after 6/7 years of his retirement. The pensionary benefits of petitioner are his vested right and authorities have no right to recover any amount outstanding against the retired employee from his pension, without issuing him show-cause notice and giving him an opportunity to defend himself. Nothing was on record to show that any notice was sent to the petitioner. Pension of petitioner could not be stopped or withheld on any ground.
10. It is evident that recovery, of the disputed amount was effected from the petitioner, which order was successfully challenged by him before competent departmental authority/Commissioner.
That order of Commissioner had attained finality. At this stage, respondents are not empowered under the law to review, recall or upset the order, which had already attained finality, that too after 6/7 years of retirement of petitioner. The impugned findings of learned Appellate Court, thus, are not sustainable in the eye of law.
11. Undeniably, earlier order passed by the Commissioner had attained finality and authorities are under legal obligation to implement it without dragging the petitioner employee into further litigation. Conduct of department showed its acquiescence and stopped it to agitate the matter as past and closed matters and transactions cannot be reopened. Department itself having abandoned its remedy and reconciled with the situation, could not seek reopening of the matter once again on the strength of a subsequent audit objection. Administrative action based on mala fide is not warranted by law. To enjoy the protection of law and to be treated in accordance with law is an inalienable right of a citizen, under Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973.
12. The respondent department could not take away/impair/nullify or destroy a vested right of an employee, which had attained finality and the us became past and closed transaction, on the basis of order passed by competent forum at the relevant time.
' Matter being past and closed transaction could not be reopened under the principle of locus poenitentiae. The impugned action was neither based on principle of justice and equity, nor tenable in law. In the'case of Bashir Ahmed Solangi v. Chief Secretary, Govt. Of Sindh, Karachi and 2 others (2007 PLC (CS) 824), it was held as under: '7. The rule of locus poenitentiae is that the power of rescinding is available to the Government or the relevant authorities to retrace and undo the wrong order till a decisive step is taken and there is hardly any dispute that an authority which has power to make an order has also the power to undo it but this is subject to the exception that if an order has taken effect and certain rights have been created in favour of an individual, such an order cannot be rescinded or withdrawn to the detriment of the such rights. The provisions of Section 21 of the General Clauses Act, 1956, envisages that the power to issue an order includes the power to rescind or vary such an order which co- relates with the authority to competently pass an order and also recall, rescind or cancel such an order but this is not an unfettered power to be used at any stage in any manner for undoing any ,order which having already taken effect, has created vested rights. The spirit of rule is that once an order is given effect and in consequence thereto certain rights are created in favour of a person, such rights cannot be subsequently taken away. This Court in a similar case Pakistan v.
Muhammad Himayatullah PLD 1969 SC 406 held as under: "There can hardly be any dispute with the rule as laid down in these cases that apart from the provisions of Section 21 of the General Clauses Act, locus poenitentiae, i.e,, the power of receding till a decisive step is taken, is available to the Government of the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights."
13. Needless to observe here that pension was not a bounty or an ex-gratia payment, but a right acquired in consideration of past services. Pension of a retired Govt. Employee had to be sanctioned one month in advance of the due date of his retirement and final payment order must be issued not more than a fortnight in advance thereof Pension was a vested right of a retiring civil servant. Such a big right could not be arbitrarily abridged or reduced except in accordance with law. Reliance is placed on Haii Muhammad Ismail Memon, Advocate (PLD 2007 Supreme Court 35), Tehsil Nazim TMA, Okara v. Abbas Ali (2010 SCMR 1437), Application by Abdul Rehman Farood Pirzada v. Begum Nusrat Ali Gonda v. Federation of Pakistan and others (PLD 2013 SC 829), Secretary, Government of Punjab, Finance Department v. M. Ismail Tayer (2014 SCMR 1336), Pakistan Telecommunication Employees Trust (PTET), through M.D., Islamabad v. Muhammad Arif (2015 SCMR 1472) and Mrs. Riffat Sattar v. Government of Punjab through Secretary (2016 PLC (CS) 472).
' In the case of Haii Muhammad Ismail Memon, Advocate (supra), the Hon'ble Apex Court observed as under: "8. 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 the 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 miserably 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."
14. Resultantly, instant revision petition is allowed and impugned judgment and decree passed by learned Appellate Court is set-aside, whereas the judgment and decree passed by learned trial Court is upheld, with no order as to costs.
(R.A.) .