MUHAMMAD AMEER BHATTI, CJ.----In consequence of disciplinary proceedings initiated under the provisions of Punjab Civil Servants (Efficiency and Discipline) Rules, 1999, the petitioner was retired compulsorily vide Notification No.68/RHC/AD&SJ dated 28th March, 2011. After the decision of the Authority regarding his compulsorily retirement, the petitioner approached the Punjab Government Servants Housing Foundation, where he had already got its membership for allotment of a house, through an application supported by an affidavit for withdrawal of the subscribed amount he deposited there to get house at the time of his retirement. It is expedient to reproduce the excerpts of the affidavit hereunder:- "I hereby solemnly declare that I have been retired compulsorily and as per rules of PGSHF the such Government Servants, or not allotted Plots/House, hence I have applied for termination of membership voluntarily. I also understand and confirm that my membership will be permanently terminated and I will not be subsequently entitled/admitted for the membership for any allotment of house by PGSHF. I have no objection if decision with regard to termination of membership is taken without my personal hearing as required under Section 14(1) of PGSHF Act, 2004 (amended on 05.01.2013)." (underline emphasized)
In view of the above, the amount was returned/refunded to the petitioner, as a result whereof, his membership for allotment of house was permanently terminated.
The Service Appeal filed by the petitioner was decided vide judgment dated 28.04.2017 whereby the punishment of imposition of major penalty of 'compulsory retirement' was converted into minor penalty of 'censure', however, meanwhile on account of attaining the age of superannuation order of his reinstatement was not issued, as a result whereof, he filed an application to the concerned.
Authority of PGSHF for restoration of his membership, which was declined; hence, this constitutional petition.
2. The contention of the petitioner is that the respondents have not controverted the factual position of the case regarding conversion of his major penalty into minor and entitlement, therefore, while accepting this petition the respondents may be directed to restore his membership for allotment of a house.
3. On the other hand, the learned counsel for the respondents while placing reliance on Rule 6(5) of Punjab Government Servants Housing Foundation Rules, 2013, which is as under: "A member who withdraws the amount from his account on termination of membership shall not subsequently be admitted as member"
Contends that the affidavit available with the respondents, attached with their written reply, contents whereof unequivocally established that he withdrew the amount deposited with the department, sine qua non to retain the membership, with his free will and intention to relinquish/forego this claim of allotment of a house at his retirement. Further contends that after withdrawal of amount, his membership had been permanently terminated, left no authority with respondents to restore the membership and simple withdrawal of amount also precluded the petitioner to reclaim his membership in view of the mandatory provision of law which prohibits the department to exercise jurisdiction when any member withdraws his deducted amount necessary for obtaining and retaining membership, to restore his membership.
4. I have heard the petitioner and learned counsel for the respondents and gone through record of the case.
5. It is not denied by the petitioner that he withdrew the amount by submitting application along with affidavit wherein he specifically, in unequivocal Manner, deposed that he had understood the effect (permanent termination of membership) of claim of refund/return of deposited amount and on the basis of that, he got refunded his deposited amount necessary to retain his membership, therefore, subsequently he after obtaining favourable order from the Punjab Subordinate Judiciary Tribunal qua conversion of his punishment from major to minor penalty although became entitled to claim the house from the respondent Foundation provided he had not withdrawn the deducted amount, hence, lost his right/entitlement on account of getting back his deducted amount, which was condition precedent for retaining membership to claim a house from the Foundation. It is correct that the petitioner after awarding punishment had otherwise become disentitled/precluded to claim the membership as envisaged under Rule 6(1)(a) of the PGSHF Rules, 2013, and perhaps under this impression, despite the fact that his appeal challenging the validity of order of his punishment was pending but consciously reflecting/inferring from contents of affidavit withdrew the amount from the Foundation, as result whereof, excluded himself from the list of eligible candidate of allotment of house and it is not the case of the petitioner that he was amateur having no skill over such matters. Besides it is also not his case that he withdrew the amount conditionally subject to ultimate decision of his service appeal.
Had he either by mentioning about pendency of appeal against his punishment claimed return of amount due to his defective membership or not opted to withdraw the amount deposited for retaining the membership despite on awarding of major punishment, appeal against which was pending, his membership had become defective his lien would have been intact, in such eventuality, the position would have been different. Therefore, I am not convinced considering the contents of sworn affidavit and the Rule referred to ibid, which prohibits to restore membership of the petitioner who in any way, as explained above, lost his entitlement to reclaim his membership for allotment of a house because under Rules simple withdrawal of amount precluded restoration of membership. In such eventuality, issuance of direction to exercise such power would amount to permit the authority to exceed the confines C of its authority in clear violation of the intention of the legislature. I am fortified with the case-law cited in Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others (PLD 2015 Supreme Court 212) deals with the present situation in the following manner: - "According to Article 114 of the Qanun-e-Shahadat, 1984 which reads as "114. Estoppel: When one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing", a person is estopped by his own conduct, if he though was aware of certain fact(s), which is likely to cause harm to his rights and adversely affect him and is prejudicial against him, avowedly or through some conspicuous act or by omission, intentionally permits and allows another person to believe a thing to be true and act on such belief without taking any steps to controvert or nullify such adverse fact and instead he sleeps over the matter. In other words, where a person who is aggrieved of a fact, he has a right, rather a duty to object thereto for the safeguard of his right, and if such a person does not object, he shall be held to have waived his right to object and subsequently shall be estopped from raising such objection at a later stage.
Such waiver or estoppel may arise from mere silence or inaction or even inconsistent conduct of a person."
The latest pronouncement on the subject, i.e. Jubilee General Insurance Co. Ltd., Karachi v. Ravi Steel Company, Lahore (PLD 2020 Supreme Court 324) is also referred, relevant portion whereof is reproduced hereunder:- "In addition to doctrine of constructive res judicata, doctrine of equitable estoppel having received statutory recognition under Article 114 of the Qanun-e-Shahadat Order, 1984 is gainfully applied in Insurance matter where the insurer uses the tool of surveyor, assessors and or investigators to investigate into claim of loss and assessment of damages and induce the insured to believe that the claim will be paid and or settled once the survey, assessment or investigation into loss or damages is completed in due course and then belatedly, refutes the claim putting the insured at disadvantage to bring claim within limitation. In all fairness, in such circumstances the insurer may be equitably estopped from raising plea of limitation as a defense to the Insurance claim in Court of law."
Therefore, there is no illegality in the impugned letter/order passed by the respondents. Resultantly, this petition has no force, hence, dismissed accordingly.