1. MUSHTAK ALI KAZI, (CHAIRMAN).-This appeal under section 4 of the Sind Service Tribunals Act, 1973 is directed against the order of the Government of Sind, Communication and Works Department dated 10-1-1982 directing the Accountant-General Sind, Karachi to withhold a sum of Rs. 1,33,806.80 from the pension dues of the appellant until clearance from the department.
2. The facts in brief are that the appellant was working as Sub-Divisional Officer at Karachi and under the directions of the Executive Engineer he spent an amount of Rs. 35,000 for maintenance etc. During the financial year 1966-F7. This amount appeared to have been spent without the budget sanction. An enquiry was then held by the P. W. D. In respect of this excess expenditure against the Executive Engineer and others and it was found during that enquiry that the appellant was also involved in the misuse of Government funds. He was therefore, suspended and thereafter reverted as an Overseer in the year 1972. The appellant filed a suit against the Government which abated when the provisions of the Article 212 (2) of the Constitution were extended to the Service Tribunal.
3. The appellant then preferred an appeal under section 6 of the Sind Service Tribunals Act on 15-6- 1974. The Tribunal found that the orders passed against the appellant were illegal, improper and against the principles of natural justice, as he had been suspended and reverted in an enquiry which was being held against a third person. That the Government could only proceed against the appellant after a proper show-cause notice and after adopting the procedure laid down in the Efficiency and Discipline Rules. Appellant accordingly was re-instated as an S. D. O. Upto his retirement on 16-12-1978. The pension papers of the appellant thereafter took a long time to be completed and by 10-1-1982 the impugned order was passed and communicated to the Accountant-General Sind to withhold Rs 1,33.806.80 until clearance from the Communication and Works Department.
4. It has been argued by Mr. Wajihuddin Ahmad on behalf of the appellant that till this day no further enquiry has been held against the appellant nor has he even been served with a show-cause notice or charge--sheet. That the Government cannot, therefore, withhold the pension of the appellant who has since retired long back. Mr. Wajihuddin has drawn our attention to the orders and circulars of the West Pakistan Government and the Central Government adopted by the Province of Sind, under which it is mandatory for the sanctioning authority to finalize pension gratuity within one year of the retirement, notwithstanding any enquiry or other disciplinary proceedings. Reference has been made to letter from Government of West Pakistan, Services and General Administration Depart--ment dated 1-2-1957 on the subject of grant of pension in cases where enquiries are pending. Under para. 1 it is mentioned that at the end of one year period, after retirement the pension and gratuity must be sanctioned even if the enquiry is not completed. The other reference is in respect of Government of Pakistan Ministry of Finance dated 9-9-1972 on the same subject. In para. (6) under the heading pension, it has been mentioned as under :- "All the enquiries pending against a Government servant should be completed within one year of his retirement and in cases it is not done his pension and gratuity should be released in full. 1f the enquiries are not completed within the specified period, action should be taken against those who are responsible for causing delay. Retiring Government servants should on no account be penalized for the slackness of others."
5. Mr. Wajihuddin has then referred to a notification of the Government of Pakistan Finance Division dated 10-11-1919 Fundamental Rule 54-A;"If a Government servant who has been suspended pending enquiry into his conduct attain the age of superannuation before the completion of enquiry, the disciplinary proceedings against him shall abate and such Government servant shall retire with full pensionary benefits and the period of suspension shall be treated as period spent on duty". The said notifica--tion was adopted by the Government of Sind Finance Department under their No. FD-(E&A)-9 (19)/76 (1) Karachi dated 7-12-1980.
6. Mr. Hassan Akbar, A. A.-G. On behalf of the Government concedes that after retirement the appellant ceases to be a civil servant within the meaning of section 2 (b) of the Sind Civil Servants Act, 1973 because a Civil Servant means a person who is member of a Civil Service of the Province or holds a civil post in connection with the affairs of the Province. After his retirement he no longer holds any such post and no disciplinary n; proceedings can therefore be taken against him. Mr. Hassan Akbar further points out that the definition of a Civil Servant under the Sind Service Tribunals Act, 1973 is however different as under section 2 (a), Civil Servant means a person who is or has been a member of the civil service of the Province. That this has been done to enable even a retired Civil Servant to seek redress of his grievance regarding pension etc. Before the Tribunal.
7. The learned Assistant Advocate-General therefore admits the position that no disciplinary enquiry can now be started against the appellant who is no longer in service having retired. He also concedes that the Government could have withheld no dues certificate in respect of the appellant if an ascertained sum had been mentioned as being due from him but such is no the case. It is yet to be determined after the enquiry as to which persons were involved in misuse of the funds and to what extent. That under these circumstances it cannot be said that an amount of Rs. 1,33,806.80 is to be withheld from the dues of the appellant. For establishing this claim the Government will have to file legal proceedings against the appellant in Civil Court.
8. Mr. Hassan Akbar, A. A.-G. Has also not been able to meet the argu--ments regarding the pension rules produced by the learned counsel for the appellant that the pension cannot be withheld, one year after retirement and any enquiry even it pending against such person abates on completion of one year.
9. The appellant retired from service on 16-12-1978 and more than four years have elapsed ; but he has not been able to obtain his pension notwith--standing his adverse family circumstances as related by him. Since under the rules pension cannot be withheld any longer, the order dated 10-1- 1982 passed by the Communication and Works Department should be recalled to enable the appellant to obtain his pension dues. Afterwards if it is found that any amount is legally due from the appellant, it would be open to the Government to effect recovery under the procedure provided in civil law. The appeal is accordingly allowed with no order as to costs.