JAWAD HASSAN, J. Through this writ Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner has impugned the show-cause notice dated 22.09.2016, issued by the Respondent No.2/Secretary , Communication and W orks Department, Government of the Punjab, Lahore.
2. Learned counsel for the Petitioner contends that the Petitioner stood retired from service on 05.01.2012 on attaining the age of superannuation witho ut any stigma. Further submits, that the Respondent issued the impugned show-cause notice to the Petitioner after lapse of 4 years 9 months without mention ing the relevant provision of law and sub-rule of Punjab Civil Services Pension Rules, 1963 (the "Pension Rules "). Adds that the rule 1.8(b) of Pension Rules clearly reflects that the limitation of initiation of departmental proceedings against the retired civil servant is one year. Adds that the Rule 1.8 of Pension Rules was over ridden by Section 20 of the PEEDA Act, since its promulgation in 2006. Learned counsel placed reliance on the judgments cited as "Muhammad Masood Joya v. Government of the Punjab, etc." (2000 PLC (CS) 864) and "Muhammad Siddique v. Divisional Forest Of ficer, Okara" ( 2014 PLC (C.S.) 253 ).
3. In response to the notice, the Respondents submitted their report and parawise comments.
4. Learned Law Officer objected to the maintainability of this writ Petition and submitted that the Petitioner has been proceeded under Rule 1.8(a) of the Pension Rules which empowers the Government to withhold or withdraw a pension or any part thereof. Therefore, this Petition is not maintainable and is liable to be dismissed.
5. Arguments heard. Record perused.
6. Perusal of impugned show-cause notice reveals that the same has been issued by the competent authority under Rule 1.8 of the Pension Rules without specifying their sub-clauses i.e. 1.8(a) or 1.8(b). Therefore, provision of Rule 1.8 of the Pension Rules requires interpretation.
7. It is well settled principle that when an authority passes an order which is within its competence, it cannot fail merely because it cites a wrong provision of law if it can be shown to be within the power of competent authority under any other rule, and hence the validity of the impugned order should be judged on the consideration of its substance and not of its form. For ready reference Rules 1.8(a) and (b) of the Pension Rules are reproduced 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 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 Governm ent 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 .
8. A plain reading of both clauses (a) and (b) of above cited rule would however , make it clear at once that each clause is a self-contained and independ ent 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 convic ted 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 the 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.
9. As regards the argument of learned Law Officer about "good conduct" within the meaning of Rule 1.8(a) of the Pension Rules, perhaps proviso to Rule 1.8(b) of the said Rules escaped the notice of the learned Law Officer otherwise it is clearly mentioned in the said proviso that no such departmental proceedings shall be instituted after more than a year from the date of retirement of the government pensioner .
10. Whereas the 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. From the perusal of record, it reveals that the Petitioner was retired from his service on 05.01.2012 after attaining the age of superannuation and he received the show-cause notice under Rule 1.8 of the Pension Rules on 22.12.2016 from the Respondent No.2. During his service the Petitioner was neither convicted nor proven guilty of misconduct either by the Government itself or by any other forum. Therefore, this clause is also not applicable upon the Petitioner because during his service it neither alleged nor proved that he caused financial losses to the Government due to his negligence or fraud nor any departmental proceedings were initiated against him within a year from the date of his retirement.
11. Moreover , it is settled principle of law that under the Punjab Employees, Efficiency , Discipline and Accountability Act, 2006 (the "PEEDA Act") proceedings against the retired employee can be initiated during his service or within one year of his retirement. However the Respondent No.2 issued the show-cause notice against the Petitioner after lapse of 4 years 9 months. This Court while expounding the term "Shall" in proviso to section 21 PEEDA, in the judgment cited as "Syed Raza Mehdi Baqari v. Province of Punjab through Secretary , LG & CD Department and 2 others" (2016 PLC (C.S.) 1046 ) has observed that the word "shall" used in proviso to section 21 PEEDA is a term of art which when appears in a statute, it makes provisions mandatory . Sometimes even an enabling word like "may" become mandatory , when the object of the power is to effectuate a legal right. It is also settled law that where a time frame is prescribed to do certain act by public functionaries, the same is directory if such act is not likely to effect the rights of any person. However , where public functionary is empowered to create liability , or impose penalties against any person within prescribed time as in present case, then the time so prescribed is not merely directory but mandatory . It has also been observed in the judgment cited above that the time prescribed in proviso to section 21 of PEEDA is mandatory . Furthermore, it is also mandatory for the reason that it intends to safeguard the interest of retired employees and pensioners, so that the Sword of Damocles should not hang upon them for an indefinite period.
12. Similar view was earlier taken by this Court in another judgment cited as "Muhammad Siddique v. Divisional Forest Officer, Okara" (2014 PLC (C.S.) 253) observing that 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 sections 1 and 21 of the PEEDA.
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 pensioners as well as provide reasonable time to the Competent Authority to deal with the disciplinary matters accordingly .
13. Furthermore in the case cited as "Muhammad Masood Joya v. Government of the Punjab, etc." (2000 PLC
(CS) 864), this Court observed that when a Government servant retires, he is in a peculiar state of mind i.e. he is without any job, he has a family to settle and in this highly status conscious society , he has no status to bank on. It was perhaps, keeping in view this state of mind that the Government issued instructions which admittedly are still in vogue which are to the effect that if the inquiry is not concluded within a year of Government servant' s retirement, the pension and gratuity must be sanctioned. Therefore, the Petitioner cannot be proceeded against after one year of his retirement.
14. In view of above referred mandatory provisions of law, there was no justification for the Respondents to issue the impugned show-cause notice after more than 4 years 9 months of retirement of Petitioner when he was no longer civil servant even as per Rule 1.8(b) of Pension Rules. Therefore, this Petition is allowed and the proceedings under Rule 1.8 of Pension Rules through show-cause notice dated 22.09.2016 are set-aside. No order as to costs.