' The appellant has invoked the jurisdiction of the Tribunal seeking the following relief: "In view of the circumstance expounded above, it is therefore, most respectfully prayed that the same order be declared being violative of Articles, 4, 13 and 14 of the Constitution of the Islamic Republic of Pakistan, 1973 hence not sustainable under the law in the interest of safe administration of justice.
' It is further prayed that the instant appeal may very graciously be accepted and the impugned order dated 20.12.2012 passed by the Respondent No, 2 and order dated 21.6.2010 passed by the Respondent No, 3 respectively be set aside being void ab initio and against the law and facts, exonerating the appellant honourably from the alleged charges.
' It is further prayed that a direction may very kindly be issued to the respondents to restore the pensionary benefits along with upto date profit in favour of the appellant so that he may not face any financial hardship due to the conduct of the respondents.
' It is further prayed that till final adjudication of the instant appeal, impugned orders may please be ordered to be suspended."
' Some relevant facts as gathered from the record are that the appellant Raja Jang Baz Khan joined the Food Department as Food grains Inspector in the year 1974. During his service he was posted at PR Centre in 170/9-L for purchasing the wheat (scheme relating to the year 1985-86). One Shafa Ullah Niazi was also posted as such at the said centre. In the said centre the stock of wheat weighing 2757.875 M.Tons wheat was stored. Mr. Shafa Ullah Niazi released the said wheat of 631.50 M. Ton before his transfer on 22.4.1986 whereas the balance stock i,e, 2126.125 M. Tons was taken over by the appellant out of which he released 1809.875 M. Ton wheat to the official contractor, where after the appellant was transferred from the said centre and he was relieved from duty on 23.4.1988. At that time of relieving the said post, the balance of stock 316.350 M. Tons was available in the stock and his successor Muhammad Yar Food grains Inspector took over the charge on 24.4.1988. The charge was given to Muhammad Yar accordingly. Later on, in the scrutiny check up of final clearance during the month of Feb. 1989 shortage of 50.350 M. Ton was detected. Inquiry was held against the appellant under the E& D Rules, 1975. The then Dy. Director Food Multan Division vide order dated 25.5.1992 dismissed the appellant from service and also imposed the recovery of Rs, 1,19,588/29 being the cost of wheat. The appellant challenged this penalty order before the departmental appellate authority i,e, D.G food Punjab, Lahore who set aside the penalty on 24.12.1992 while directing reinstatement of the appellant in service. It was held by the appellate authority that the appellant was not responsible for the alleged shortage of wheat of 50.350 M.
Tons. Thus said authority directed the Dy. Director' Food to start proceedings against Muhammad Yar Food Grains Inspector during whose tenure such shortage was detected. The then Dy. Director Food Multan again proceeded the appellant departmental along with Muhammad Yar Food grains Inspector under the disciplinary rules treating the order of the appellate authority against the appellant too. As a result of denovo inquiry the appellant was again penalized with the penalty of compulsory retirement from service and recovery of Rs,71752/98 (60%) whereas Muhammad Yar was burdened with the penalty of Rs,47835. The appellant and said Muhammad Yar filed departmental appeals before the Director Food Punjab /appellate authority and said appeal was decided again vide order dated 28.9.2014 and matter was closed to the extent of the appellant and subsequent penalty order was set aside. Meanwhile the appellant retired from service on 4.6.2014 and Muhammad Yar died on 26.8.2006. When a letter dated 2.8.2006 was sent to Dy. Director Food, Multan by Director Food regarding explanation for delay of concluding the matter as directed by the Director Food vide order dated 24.12.1992. Advice was repeated through another letter of August 2008. As a result of said letter the Dy. Director Food Sahiwal Division took up the matter and reexamined the case file and inquiry proceedings. He vide Order-No, 22 dated 24.1.1999 took action against the appellant under Rule 1.8 of the Pensions Rules, 1963 as .He stood retired. The inquiry was transferred to the office of the Dy. Director Food Sahiwal after creation of Sahiwal Division who issued notice to the appellant under Rule 1.8 of the Pension Rules on 16.6.2010 but the same was not served as allegedly the appellant refused to receive the same. The Dy. Director Food Sahiwal under the proceedings of 1.8 of the Pensions rules imposed recovery of Rs, 119588.19 vide impugned order dated 21.6.2010. Thereafter the departmental appeal of the appellant was also dismissed by the Director Food vide order dated 20.12.2012, hence this appeal.
2. Arguments heard and record perused with the assistance of D.Rs (original notice under 1.8 of Pension Rules was not produced).
3. There is no denial that vide order dated 1.4.1992 the penalty of recovery of Rs, 119588/89 and dismissal from service was set aside by the then appellate authority (Director Food Punjab) vide order dated 24.12.1992 . In the said order the appellate authority having examined the record specifically held that the appellant was not responsible for the, alleged shortage of Rs,50.350 M.Ton wheat meaning thereby the appellant was reinstated in service. In the same order, the appellate authority directed the Dy. Director Food, to start proceedings under the E&D Rules against Muhammad Yar Food Grains Inspector during whose tenure the shortage of 50.350 M. Ton was detected. But the then Dy. Director Food involved the appellant in the denovo inquiry and penalized him with the penalty. The said penalty was also challenged by the appellant through a departmental appeal. The then appellate authority Director Food Punjab while accepting his appeal again exonerated the appellant through his order dated 28.9.2004 and observed that the case remained in cold storage for nothing therefore, Dy. Director Food was directed to fix the responsibly upon those who slept over the matter for 12 years. Both orders dated 24.12.1992 and 28.9.2014 which turned in favour of the appellant and he was held not responsible for the loss thereafter even after first order dated 24.12.1992 the inquiry was dropped actually as the appellant was exonerated and the penalty was set aside and thus found no inquiry was in field. After a long time after the retirement of the appellant and after death of Muhammad Yar the Dy. Director Food without any reasons commenced the proceedings against the appellant under Rule 18 of the Punjab Civil Services Pensions Rules, 1963. The Dy. Director Food Sahiwal in such proceedings imposed the recovery of Rs, 119588/29 with the direction to recover from the pensionary benefits. In case of the appellant such rule was not applicable. For ready reference, said rule is produced below: Rule 1.8 of Punjab Civil Service Rules, 1963
(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 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.
Rule 1.8 ibid is not applicable in case of the appellant because during service of the appellant no misconduct was proved or established as he was exonerated from the charge of shortage of wheat as is evident from the orders dated 24.12.1992 and 28.9.2004 whereby the departmental appellate authority accepted the appeal of the appellant against the penalties on allegation in questions and he was reinstated in service. The spirit and essence of Rule 1.8 ibid is that there should be conviction of serious crime and or be found to have been guilty of the grave misconduct either during or after the completion of his service. No such findings was in the field against the appellant, therefore, it is found the Dy. Director Food erred in law while invoking the jurisdiction under Rule 1.8. It is pertinent to mention that the proceedings under this rule was initiated on 24.1.2009 much after the retirement of the appellant who undeniably stood retired on 4.6.2004 There is proviso attached to Rule 1,8 which commands that such departmental proceedings shall not be instituted after more than a year from the date of retirement of a civil servant/pensioner.
The proviso creates a new circumstance for the applicability of Rule 1.8 i,e, that it should be initiated within one year from the date of retirement. This proviso actually excludes general principle as mentioned the Rule 1.8. In case in hand the appellant retired in the year 2004 and proceedings were initiated much after retirement of the appellant beyond one year. In the above circumstances, the impugned orders dated 21.6.2010 is not sustainable in the eye of law. It is found from the circumstances of the case that the authority just in order to get rid of the responsibility to dig out the real culprits of shortage of wheat, proceeded against the appellant under the Pension Rules. Thus for the discussion hereinabove the impugned order dated 21.6.2010 is liable to be set aside. The appellate authority also could not see the case in its true perspective and on the 4aw on the subject, thereby and committed legal error while dismissing the departmental appeal ritualistically vide order dated 20.12.2012, this order is also not tenable in the eye of law and liable to be brushed aside.
4. For what has been discussed supra, the appeal is accepted and impugned orders are set aside with the direction to restore the amount recovered (if any) from the pensionary benefits of the appellant.