Muhammad Ramian, Inspector of Police (Retd.) has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded I.-G: P., Lahore and Chief Secretary, Government of the Punjab, Lahore, as respondents.
2. By virtue of this appeal the appellant has prayed that the order dated 21-7-1981 of the D. I.-G.
Police read with letter of Director-General, F. I. A., dated 13-9-1981. Be set aside and it be declared that the appellant was entitled to L. P. R which has been wrongly refused and recovery of Rs.
6,994.92 made from the gratuity be refunded to him, and also to pay him lump sum cash in lieu of 180 days leave of the L. P. R. Not so granted.
3. Brief facts of the case are that the appellant while on deputation to F. I. A. Made an application dated 18-2-1976 and applied for the grant of L. P. R. Stating that he could not perform his duties properly. As he had not indicated the date from which he intended to proceed on L. P. R. He was directed to intimate the period/date from which he wanted to proceed on L. P. R, However, no reply was received from him. The matter remained static and an application dated 24-1-1980 was moved on behalf of the appellant for the grant of 364 days L. P. R. From 1-7-1980 to 30-6-1981. In his application the appellant stated that he would attain the age of superannuation (60 years) on 1-7- 1981, which was found incorrect as according to the record of the service his date of birth was 5-10- 1919. In view of the above the Director, F. I. A. Was informed by the I.-G. P. That the appellant stood superannuated from service were. f. 5-10-1979, as such the respondents made recoveries from him for the period he over stayed in service beyond the age of superannuation. The appeal so filed, by the appellant was dismissed by the I.-G. P. As time--barred. Hence this appeal.
4. I have heard the learned counsel for the appellant as well as learned District Attorney and have perused the record of this case carefully with their assistance. It has been submitted on behalf of the appellant that under relevant rules it is incumbent upon the respondents to initiate action for retirement and grant of pension for six months in advance of the date of superannuation so that after complying with the necessary formalities, the officer is not only sanctioned pension in time but it is obligatory on the part of the respondents to ensure that he gets his pension a month after he has ceased to be in Government service. Learned counsel has made a grievance that instead of acting on this instruction the respondents allowed the appellant to continue in service beyond the date of superannuation and was entrusted with important inquiries into cases of fraud, etc. In this manner the learned counsel has argued that the appellant continued in service and was entitled to the salaries of the said period and also L. P. R. After the said period had expired. Learned counsel has laid blame at the doors of the respondents for making the appellant to work for full 6 months without his repast and at the same time disallowed him of his vested rights of L. P. R. He has also assailed the act of the respondents for recovery of huge sum from his gratuity being the over payment of salaries for 6 months which had already been paid to him for the services so rendered by him. Learned counsel has further raised a legal point by submitting that under the statutory rules which specifically provide that a Government servant against whom an inquiry was m progress, shall not be required or permitted to retire on reaching the age of compulsory retirement (superannuation) but shall be retained in service until the inquiry into the charge is concluded and a final order is passed by the competent authority. Learned counsel for the appellant has pointed out that the appellant had been undergoing an inquiry against him since 1978, and the final order of his acquittal was passed on 20-5-1981. He has also referred to the Financial Rules wherein according to him, it is laid down that when the leave is refused in the public interest, the rules require that the retired civil servant shall be entitled to encash the refused leave subject to a maximum of 180 days leave on full pay.
5. On the other hand learned District Attorney has submitted that the appellant stood retired after he has reached the age of superannuation and has relied this assertion on section 12(3) of the Punjab Civil Servants Act, 1974. He has further submitted that the main stay of the appellant's case as propounded by the learned counsel for the appellant are the rules which have to yield its force in view of provision of section 23(2) of the said Act. With regard to the facts of the case learned D. A.
Has pointed out that appellant was bound 'to give clear indication of the date on which he wanted to proceed on L. P. R. In the application made by him in the year 1976. It has been submitted that respondents bad directed him to provide this information but the -appellant kept silent and thus cannot blame the respondent for his own dormant attitude. He has laid stress on the facts of the second application in which the appellant gave a wrong date of superannuation which stood contradicted by the entry of his date of birth is his service record. Learned D. A. Has come out with an argument that the confusion in this L. P. R. Affair was a creation of appellant's own act as it occurred due to fraud played by the appellant with the said agency. In this way the claim of the appellant has been stoutly resisted by the learned D. A. By submitting that no body can be allowed to take advantage of his own fraud.
6. I have given my anxious thought to the arguments so advanced by both the parties and would like to reproduce section 12 of the Punjab Civil Servants Act, 1974, for ready reference. The heading of the section is retirement from service. A civil servant shall retire from service :-.
(i) in the case of a person holding the post of Secretary to Govern--ment of the Punjab or an equivalent or higher post on such date, as the competence authority may, in the public interest, direct ;
(ii) in the case of a person holding a post lower than the post of Secretary to Government of the Punjab on such date, as the Government may, in the public interest, in consultation with an Advisory Committee as may be constituted in the prescribed manner for the purpose, direct ; (i.e) in any other case, on such date, after he has completed twenty--five years of service, qualifying for pension or other retirement benefits, as the competent authority may, in the public interest, direct ; and
(iv) where no direction is given under clause (i) or as the case may be under clauses (ii) and (i.e) .
On the completion of the sixtieth years of his age.
Clause (i.e) of section 12 indicated above, makes it crystal clear that the appellant stood retired from the date he reached the age of supernnua--tion. It was his duty to inform the parent agency where he was working that he is due to retire from the same date with the request to inform the parent Department to prepare his pension papers in advance so that he should receive his dues at the right moment. If the appellant would have been working with the parent Department then of course his case should have been processed by the Department in advance to provide him his pension benefits and other legal rights. But in the present case the bail was in his Court and it was his duty to inform the parent Department himself as no record of his service was available with them. The appellant in this way cheated the. Barring Agency and continued in service and enjoyed the benefits by drawing pay and other emoluments, etc. When the facts came to the notice of they parent Department it had no other alternative but to act under the rules and to recover the salaries so drawn by him which was not otherwise his legal right.
7. I am also conscious of the fact that in the year 1976 when the appellant was in -a proper frame of mind like an upright and honest officer he should-have moved to the parent Department to allow him to proceed on L. P. R. As he was aware that the date of superannuation was drawing closer in 1979, but as he did not reply to the query of the Department as to the date on which he wanted to proceed on L. P. R., the matter remained pending and time passed on. The second application he chose to move was in 1980 when he had actually retired by operation of law and wanted to cash the result of his own concealment of facts by asking the parent Department to allow him L. P. R. In this way I am convinced that this was a clever move on his part which was dug out by the Department and action was taken in this regard. With regard to the argument of the learned counsel that under the Court instructions the appellant could not be retired till the enquiry pending against him had concluded it would be sufficient to say that whenever rules are in-- consistent with the Act the same loses all its force. Section 23 of the Punjab Civil Servants Act, 1974, has clearly laid down that any rules, orders or instructions in respect of any terms and conditions of service of civil servants duly made or issued by an authority competent to make them and in force immediately before the commencement of this Act shall, in so far as such rules, orders or instructions are not inconsistent with the provisions of this Act, deemed to be rules made under this Act. In the present case the Act has clearly laid down that a person shall stand retired at the age of 60 years and cannot be re-employed under the rules until the procedure laid down under section 13 of the Punjab Civil Servants Act is complied with.
8. In view of the above analysis, I do not find any merit in this case which is dismissed. However, the parties shall bear their own costs.