SAFDAR SALEEM SHAHID, J. The petitioners have filed instant constitution petition with the following prayer:- "It is, therefore, respectfully prayed that the present writ petition be accepted and the orders dated 23-1-2016 and 31-3-2016 passed by the respondents may kindly be set aside in the interest of justice, equity and fair play while giving the full pensionary benefits to the petitioners being widows/legal heirs of the deceased."
2. Brief facts for disposal of instant writ petition are that husband of the petitioners namely Hameed Ullah Khan was appointed in the Punjab Police (District Mianwali) as Constable on 3-7-1984 and was promoted upto the rank of Assistant Sub-Inspector. Afterwards, said Hameed Ullah Khan was posted as Incharge Malakhana Saddar Mianwali on 27-11-2001 and during the period of his posting, there was no complaint against him but subsequently an FIR No.386/2004 dated 1-10-2004 offence under sections 409/420, P.P.C., was registered against him at Police Station City Mianwali. Said Hameed Ullah Khan was arrested in the aforementioned case and remained on physical remand.
During physical remand, an inquiry was conducted by DSP/SPDO Circle Musa Khel being Inquiry Officer without providing an opportunity to defend the allegations against him. Consequently, major penalty of dismissal from service was awarded to said Hameed Ullah Khan by respondent No.3 vide order dated 02.11.2004. Feeling aggrieved, said Hameed Ullah Khan filed a revision before respondent No.2 which was dismissed vide order dated 13.05.2005. Against the said order, Hameed Ullah Khan filed an appeal before Punjab Service Tribunal which was also rejected vide judgment dated 19.09.2005. Feeling aggrieved he filed a Civil Appeal No.919 of 2006 before august Supreme Court of Pakistan which was accepted vide order dated 08.12.2006 and he was reinstated in service from the date of dismissal. Said Hameed Ullah Khan had gone to Karachi for earning his livelihood who was not informed by the concerned staff of DPO office in this regard and when this fact came into his knowledge, he filed an application to respondent No.3 for joining his duties in compliance of order of august Supreme Court of Pakistan and joined his duty on 03.03.2011 and thereafter he was also acquitted from the case registered against him. After that, another inquiry was initiated against husband of the petitioners (Hameed Ullah Khan) by respondent No.3 vide order dated 12.09.2011 which was not finalized. Husband of the petitioners became seriously ill and passed away on 27.09.2015. Respondent No.3 vide letter No.27477 dated 26.12.2015 forwarded family case of. the petitioners to District Accounts Officer, Mianwali along with necessary no objection certificates.
During this period, respondent No.3 ordered DSP/SDPO Saddar Circle Mianwali to re-open the pending inquiry against late Hameed Ullah Khan on 25.12.2015 who concluded the same that deceased was responsible for the embezzlement of Rs. 19,69,879/-.
Respondent No.3 submitted the said inquiry report to respondent No.2 who advised respondent No.3 to proceed as per Rule 1.8 (a and b) of Punjab Civil Services pension Rules, for recovery of said amount upon which respondent No.3 through. Letter No.62576 dated 31.03.2016 advised respondent No.4 to effect recovery of aforesaid amount as directed by respondent No.2. Respondent No.4 withheld gratuity amount Rs.5,34,771/- and started recovery of an amount of Rs.5780/- per month from the monthly pension of the petitioners against the emblazed amount mentioned in the aforesaid inquiry report. Respondent No.3 also withheld sanctioned payment of four months pay of the deceased as well as payment of 365 days pay to the petitioners as well as an amount of Rs.600,000/- for payment to the petitioners as 'financial assistance' treating the same as recovery.
Hence, this petition.
3. Learned counsel for the petitioner has argued that orders impugned through instant petition have been passed by the respondents against the prescribed law and rules, therefore, same are not sustainable in the eyes of law; there was no case of misappropriation against the deceased Hameed Ullah Khan; the inquiry was initiated in the life time of the deceased and the same was lingered on for four years; the said inquiry should have been dropped after the death of the deceased but the same was finalized with a considerable delay, therefore-, the same is of no legal value; the petitioners are entitled for all the pensionary benefits of the deceased being his widows.
4. Learned law officer on the other hand argued the orders impugned through instant petition have been passed by the respondents quite in accordance with the prescribed law and rules; the inquiry was finalized against the deceased Hameed Ullah after adopting due process and the amount was found embezzled by the deceased, therefore, the same is to be deducted from his pension as per rules. Prays for dismissal of instant petition.
5. Arguments heard. Record perused.
6. It has been noticed that Hameed Ullah Khan late (husband of the petitioners) was appointed in the Punjab Police (District Mianwali) as Constable and was promoted up-to the rank of Assistant Sub-Inspector. Afterwards, said Hameed Ullah Khan was posted as In-charge Malkhana Saddar Mianwali and aforementioned FIR was registered against him at Police Station City Mianwali in which he was arrested and remained on physical remand. An inquiry was conducted by DSP/SDPO Circle Musa Khel being Inquiry Officer against said Hameed Ullah Khan and as a result of the same, major penalty of dismissal from service was awarded to him by respondent No.3. The revision and appeal filed by the deceased were rejected by the competent forums. Said Hameed Ullah Khan was reinstated in service by the orders of august Supreme Court of Pakistan dated 08.12.2006 who joined his duty on 03.03.2011. Thereafter, another inquiry was initiated against Hameed Ullah Khan by respondent No.3 vide order dated 12.09.2011 which was not finalized for a period of four years and was concluded after his death wherein he was held responsible for the embezzlement of an amount of Rs.19,69879/-.
7. After registration of aforesaid FIR against deceased Hameed Ullah Khan and initiation of first inquiry, he was imposed major penalty of dismissal from service. He was reinstated in service by the orders of august Supreme Court, of Pakistan vide order dated 08.12.2006 and he joined his duty in compliance of said order. Afterwards he was also acquitted from the aforesaid FIR. When this episode of the issue in hand was over, then another inquiry was initiated against said Hameed Ullah Khan deceased regarding misappropriation in articles of Malkhana Saddar Mianwali. The deceased Hameed Ullah Khan joined the inquiry proceedings and also submitted reply but the said inquiry could not be finalized and remained pending for a considerable period, for the reasons best known to the concerned inquiry officer/authorities. Report and parawise comments were requisitioned from the respondents which have been submitted by them, according to which, the inquiry was initiated against Hameed Ullah Khan deceased in his life time and the same was finalized on 25.12.2015 after his death and that the case of his family pension was also sent to the District Accounts Officer by the concerned authority.
8. The other inquiry was initiated against said Hameed Ullah Khan on 12.09.2011 who passed away on 27.09.2015 during his service. The inquiry was finalized by the concerned inquiry officer on 25.12.2015 after more than four years of its initiation and about three months after the death of the deceased. Such proceedings are intended to impose departmental penalty and would abate on account of death of a civil servant and such purpose of imposing penalty can only be achieved if the official is in service. Hameed Ullah Khan deceased passed away on 27.09.2015 during the pendency of the inquiry proceedings and inquiry was finalized on 25.12.2015 wherein the deceased official was held responsible for embezzlement of amount mentioned therein and any subsequent action of the inquiry officer in the said proceedings is illegal and not sustainable in the eyes of law.
The adverse order was passed against the deceased official when he was no more employee of the respondents. Reliance in this regard is placed on the, case of Mst. S. Yasmin v. Pakistan Railways through General Manger and others (2017 PLC (C.S.) 1 ) wherein it has been held as under: "From the afore-noted it is clear and obvious that disciplinary proceedings can only be initiated against an employee for his non-performance or ill-performance of his duties as a corollary to which if he is found guilty, he is burdened with the penalties which are provided in the respective statutes under which he has been proceeded with. From the above it is also manifest that penalty can only be imposed on an employee who is alive and in service of any organization/department "
Further reliance in this regard is placed on the case of Mst. Shahnaz Bano v. Chairman WAPDA and 2 others (2017 PLC (C. S.) 643).
"In the present case as the employee had died during service, therefore, all kinds of proceedings initiated by the respondents stood abated from the date of his death."
The respondents in their comments have not mentioned any reason for not concluding the inquiry in the life time of the deceased official and why the same remained pending for more than four years. Learned law officer also remained unable to point out any law or rule under which an official can be burdened with/imposed penalty after his death. From the above discussion, it is crystal clear that deceased official/husband of the petitioner passed away on 27.09.2015 whereafter the inquiry was finalized on 25.12.2015 as admitted by the respondents in their comments and deceased official was held responsible for embezzlement of an amount of Rs. 19,69879/-. After his death, deceased official/husband of the petitioners was no more employee of the respondents or in service, therefore, disciplinary proceedings/penalty could not be imposed against him. The respondents imposed the penalty on the deceased official when the inquiry proceedings against him stood abated but despite this fact that imposed the penalty upon him on 25.12.2015.
Surprisingly, on 26.12.2015 pension/gratuity case in respect of late ASI Hameed Ullah Khan was forwarded to the District Account Officer, Mianwali, coupled with no inquiry certificate wherein it has been mentioned that no inquiry or anything adverse is pending against late ASI/deceased official whereas inquiry was initiated by the department on 12-9-2011 and was finalized on 25-12-2015 one day before forwarding the pension case meaning thereby at least pending of the inquiry or result of the same was well in knowledge of respondent No.3 who was in a position to delay the case of pension of the deceased official. The respondents cannot withheld the pensionary benefits of the petitioners under the grab of the aforesaid inquiry report. The petitioner being widows of the deceased official are entitled to get all the pensionary benefits in respect of their late husband/Hameed Ullah Khan deceased.
9. In view of what has been discussed above, instant writ petition is accepted, orders impugned through instant petition are set aside and respondents are directed to release pension and other remaining benefits of the deceased official in favour of the petitioners as per rules.