SARDAR ABDUL JABBAR KHAN (CHAIRMAN). --Qamar-uz---Zaman, Deputy Superintendent of Police (Retd.) has filed this appeal u/s 4 of the Punjab Service Tribunal Act, 1974, in which he has impleaded the Secretary to Government of the Punjab Home Department, Lahore and the Governor of the Punjab, Lahore, as respondents.
2. By virtue of this appeal, he has prayed that the impugned notification dated 18-6-1986 and T.P.
Letter dated 22-6-1986, may be set aside and appellant may be re-instated in service with full back benefits of Pay and Allowances etc.
3. Brief facts of the case are that the appellant while he was working as D.S.P. In NPS-17, received a Notification dated 18-6-1986, by which he was informed that as he has completed 25 years service qualifying for pension and other retirement benefits, therefore, the Governor of the Punjab was pleased to retire him by invoking powers conferred upon him by Section 12(ii) of the Punjab Civil Servants Act, 1974. As it being the order of the Governor of .The Punjab, against which no appeal/review/representation was permissible, therefore, the appellant has filed this appeal before this Tribunal.
4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the entire record of this case carefully with their assistance.
5. Learned counsel for the appellant has submitted that the appeal of the appellant was liable to be accepted on the short ground that the appellant has only completed 22 years 2 months and 25 days qualifying service, therefore, his retirement was premature and misconceived. It was further submitted that in case his point of view did not prevail then of course he reserved his rights to argue the appeal on merits via-a-via the law relating to retirement of civil servants a/s 12(ii) of the Punjab Civil Servants Act, 1974, and would show that the appellant had a clean and unblemished service record and has also fell victim to the discrimination, on the part of the competent authority.
6. With regard to the plea that the appellant has completed only 22 years 2 months and 25 days qualifying service it was submitted that although the appellant joined service on 13-3-1957 and till 18-6-1986, had rendered 29 years 2 months and 25 days service in all yet the period he remained in Jail from 24-2-1976 to 3-6-1981 and 27-10-1981 to 17-2-1983 period under suspension could not be treated as service qualifying for pension as he had not been paid a penny from the Provincial Exchequer, as laid down in the Pension Rules. He further submitted that under Rule 2.1 of the Pension Rules, 1963, it was one of the pre-requisite condition that the service of a civil servant must be paid to him from the Provincial Exchequer otherwise according to the learned counsel for the appellant if the civil servant was not paid for any period of his service from the Provincial Exchequer, the same would not be considered a service qualifying towards pension and thus the impugned order would be illegal as well as misconceived. For this he has placed reliance on PLD 1984 SC 84.
Learned Counsel for the appellant has further laid emphasis on the point that before PCO 1981 was introduced, it was found that the order u/s 12(ii) of the Punjab Civil Servants Act, 1974, fell within the jurisdiction of the Punjab Service Tribunal on the strength of PLD 1981 Karl and PLD 1981 Pesh. 295.
By coming in of P. C .O. All the cases stood abated by promulgation of the said PCO 1981. Learned Counsel for the appellant has argued that the present order of retirement was not protected by PCO, 1981, as under the PCO, 1981, service rendered must not be less than 25 years, whereas according to him the PCO, 1981, which now stands repealed, there was no doubt left that case of the appellant is justiciable.
7. On the other hand learned District Attorney has supported the stand of the Department and has submitted that in fact the appellant has been paid the salaries for the period he remained in Jail for the period from 1-7-1976 to 11-7-1981, to the tune of Rs.33, 282:33, which was drawn on 9-9-1985, in his favour. It was further averred that S.P., Multan has intimated that the requisite amount had been paid to Qamar-uz-Zaman, DSP, through SSP/Lahore, vide receipt No.2322/ACC dated 9-12- 1985, therefore, the plea of the appellant that he had not been paid a penny from the Provincial Exchequer stood belied and it would be presumed that he has been paid for 25 years, which he served under the Government.
8. With regard to the period from 20-10-1981 to 10-7-1983, which comes to 1 year 8 months and 20 days., learned District Attorney has submitted that with regard to payment of such period the matter is yet to be finalized, therefore, he has conceded that payment relating to this period has not been made.
9. We have given our anxious thought to the arguments advanced by the parties on this issue and first of all we will deal with the calculation of period of his total service as done by the Departments in their reply available on record. The Respondents have conceded that the appellant's total service comes to 29 years, 3 months and 5 days, and period from 18-2-1976 to 20-8-1981, was ordered to be treated as duty under CSR 7.5(A) by the DIG of Police, Multan Range, vide his Memo No.9589/A, dated 27-6-1985, addressed. To the S.P. , Multan. In this manner there is no dispute that the period during which he remained in Jail from 18-2-1976 to 20-7-1981, would be 5 years 5 months and 2 days, but according to their calculation even if such period is deducted on the ground that he has not been paid the salary of such period, even. Then his service will be more than 25 years would be wholly incorrect. This being a purely a mathematical exercise, would show that if such period is deducted from 29 years 3 months and five days, the total service so rendered by the appellant would come to 23 years 10 months and 3 days. Similarly it has been conceded that he has not been paid anything for the period 1 year, 8 months and 20 days, as the matter is still pending with the Commandant, Punjab Reserve Police, in this manner, if this period is further deducted then service of the appellant would come to 22 years, I month and thirteen days. After sorting out this mistake on the part of the Respondents, we now further proceed to adjudicate whether the stand of the Department that the appellant has been paid a sum of Rs.33,882.33 by S.P.
Multan stands established or not. In this respect what we find is that the Respondent has relied on 'Qabazal Wasool' which has been placed on record, Exhibit R/1, produced before this Tribunal on 9- 10-1986. According to this Qabazal Wasool the appellant Qamar-uz-Zaman received this money vide his signatures R/2 and R/3 duly attested by Nazir Ahmed, AST (Retd.), who according to the Respondent Department happened to be father-in-law of the appellant. When confronted with this situation the appellant made a statement on oath recorded by this Tribunal on the same date viz. 9-10-1986, in which besides solemn affirmation he took on oath on certain parts of Holy Quran, that he did not receive any amount from any body, and the said Qabazal Wasool R/1 was nothing but a concoction and a part of plot staged against him by the Department to defeat his case for restoration in service. The statement was recorded by this Tribunal and was duly signed by the appellant. In view of this statement made on oath by the appellant, this Tribunal was pleased to record the statement of Mr.Saeed Ahmad, Cashier, who affirmed that Exhibit R/1 was photostat copy of original Qabazal Wasool and he had paid the money to Nazir Ahmed, AST (Retd.), father- in-law of the appellant, in July, 1985. Again said in October, 1985. He further stated that when he insisted on the presence of the appellant for receiving the arrears, Nazir Ahmad, ASI (Retd.) assured him that he would pay the amount of arrears to Qamar-uz---Zaman, by obtaining signatures on the said Qabazal Wasool and was ready to attest the same. He after the said assurance given by Nazir Ahmad, AST (Retd.) paid the entire amount to him. He also stated while giving the statement on oath that he had also informed the. Said Nazir Ahmad, AST (Retd.) that the appellant used to sign in English and had never seen his signatures in Urdu. To this according to the witness, the said Nazir Ahmad replied that the appellant was signing both in Urdu and English. While subjected to cross-examination the witness stated that neither he asked for the Identity Card of the recipient of the said amount Nazir Ahmad AST (Retd.) nor he demanded any authority letter on behalf of the appellant Qamar-uz-Zaman. He further conceded that according to the Police Rules; if any civil servant was not present at the time of receiving his pay then the only authentic procedure would be that after -securing authority a Road Certificate is to be issued in the name of the Local Police and then the said Local Police arranges cash receipt of the recipient and the same is placed on record. The record of the said event is duly recorded in the relevant Police Station from where such payment was so made. He further conceded that during his 31' years Accounts service in the Police Department, this was first event that he deviated from the Police Rules laid down in this regard. It was suggested by the learned counsel for the appellant that he was making a false statement that Qabazal Wasool was forged one but he denied.
10. This Tribunal issued summon in the name of Nazir Ahmad AST (Retd.) to appear before this forum and clarify the position, but the said service was refused by his son and upon the said refusal a bailable warrant was issued to secure his presence and despite this coersive method the respondent representative who was directed to serve upon the aforesaid bailable warrant, expressed his inability to trace him. This Tribunal then called upon Saeed Ahmad, Cashier as well as representative of the Department, who were present before this Tribunal to produce any signatures of Qamar-uz-Zaman in Urdu so that the Tribunal would compare the same with the one so affixed as R/2 and R/3. The representative of the Department and the Cashier Saeed Ahmad expressed their helplessness as according to them, during the entire course of their service, the appellant has been signing in English and they were not in possession of signature in vernacular of Qamar-uz-Zaman, the appellant.
11. We have considered with care, the situation in hand and find that Saeed Ahmad, Cashier has acted in irresponsible manner in complete violation of Rules by handing over huge amount of Rs.33,282.33 to Nazir Ahmad, AST (Retd.) particularly when he himself has conceded that he was very much familiar with the signatures of the appellant, who always signed in English and like a prudent official, he should have straightway refused to accept the signatures as "Qamar-uz- Zaman ", as the name of the appellant is Qamar-uz-Zaman and not Qamar Zaman, and that he always affixed his signatures in English. This witness has also conceded that the appellant has been working near his office and he was fully conversant and familiar with his signatures, What we further find is that Saved Ahmad Cashier's own admission that according to the Police Rules, he was bound to first secure an Authority letter on behalf of a civil servant who was entitled for such payment and then issue a Road Certificate in the name of the Local Police, who in turn, has to approach the said civil servant, where he was so residing and to obtain a receipt thereof. Saved Ahmad, Cashier being well versed with the Rules either fell victim to the cunnings of said Nazir Ahmad, ASI, father-in-law of the appellant, or he was in connivance with him to misappropriate the said amount. This Tribunal hereby directs that a case be registered against Nazir Ahmad, ASI (Retd.) under the relevant rules relating to misappropriation of Government money and Saeed Ahmad, Cashier, be proceeded under the E&D Rules, for negligence, which resulted in the misappropriation of such huge amount.
12. As far as the case of the appellant is concerned it is established on record beyond any shadow of doubt that he did not receive single penny from Provincial Exchequer arrears of pay for the period between 18-2-1976 and 20-7-1981, the period he remained in Jail whereas he was treated on duty otherwise and according to the Department's own concession, he has not been paid anything from 20-10-1981 to 17-7-1983, the period under which he remained under suspension and was later on reinstated by the competent authority. The appellant has drawn the attention of letter from Assistant Accounts Officer Punjab to the Commandant, Punjab Reserve Police, Farooqabad, in which it was stated that the payment of the salary by the Government from the Provincial consolidated fund is an essential condition for qualifying the service for pension. The said letter has drawn the attention of the Commandant, PRP, to this salient feature of the appellant's case and has directed him not to keep silent over this issue and to inform the said office whether the appellant has been paid the salary for the period he remained in Jail, and if the appellant had been paid for the said period then of course, that period would count for pension otherwise not. We have gone through the contents of the said letter and find that the averment of the appellant is absolutely correct. He has further highlighted another factor in his favour by submitting that Service Book finds mention of the disputed payment as 22-9-1986, i.e. Three months after his retirement. This speaks volume that entry should have been recorded on the very date, when it was paid to him. He further submitted in his application, placed on record that when he was DSP, Nawankot Circle, his office was located in the office of the SSP, Lahore and coincidently just facing the room of the Cashier who for months together came to him for innumerable times securing his signatures on Acquaintance Rolls. Be that as it may, it is established facet on record that the appellant has not been paid a single penny from the Provincial Exchequer and is liable to take benefit of law laid down in this behalf. The law laid down in this behalf is:--
(i) The service must be under Government;
(ii) The employment must be substantial and permanent.
(i.e) The service must be paid by the Government.
As the word has been used 'HIM' and not to somebody else, whereas what we find is that somebody came forward on his behalf, without any authority and secured the payment in a clandestine manner as well as committing a criminal act of misappropriation. In the present case, as mentioned earlier Saeed Ahmad, Cashier had no business to make payment. To Nazir Ahmad, ASI (Retd.) when he did not possess any authority letter on behalf of the appellant for receiving such payment and even in the presence of the said letter it was obligatory upon said Saeed Ahmad to issue a Road certificate and observe all formalities with regard to the mode of payment in the Police Rules so formulated by Government. It will be pertinent to observe that close scrutiny of the said Qabazal Wasool records signature of appellant as 'Qamar-uz-zamman' and the attestation is in the same ink which will clearly establish that person so attesting the signatures had used the ink at one time.
13. In view of the detailed analysis of the entire facts and the law laid down in this behalf, we hold that the appellant service qualifying for pensionary benefits, does not come to 25 years as laid down a/s 12(ii) of the Punjab Civil Servants Act, 1974, which for all purposes, is pre-requisite condition for invoking powers by the competent authority under the said Act and declare the impugned order as without lawful authority, illegal and void ab initio. We set aside the impugned order and hold that the appellant is still continuing in service as if he has never been retired for the purpose of Section 12(ii) of the Punjab Civil Servants Act, 1974. However, there will be no order as to costs.
MIAN FAIZ KARIM (MEMBER).--I agree with the judgment cited above recorded by the learned Chairman, Punjab Service Tribunal with the following observations: The respondent Department i.e. The Secretary to Government of the Punjab, Home Department, Lahore or for that matter the I-G. Punjab Police did not treat the appellant as unpaid on the record rather as it has been mentioned in the judgment of this case, so far as the Government is concerned the amount of Rs.33, 282.33 stand disbursed from the Government funds. Furthermore the Senior Superintendent of Police, Lahore informed the Senior Superintendent of Police, Multan, reference to his memo. No.60520 dated 14-9-1985, vide letter No.2522/Acctt dated 9-12-1985, photo copy of which is attached alongwith the photo copy of acquaintance Roll (Qabzul Wasool) (Exh.R/1) annexed to the service book of the appellant. This is also on the service book that the appellant was Inspector Police before conviction and during his detention of the murder case and was promoted as DSP after his acquittal from the criminal case. I believe his service during the detention period was also counted towards the service for his promotion. Besides that when the appellant was examined in the court on 9-10-1986 to my question stated that he applied for the arrears of his pay of his detention period in 1983-84 and did not make any reminder to the competent authority for the same till his application dated 2-9-1986 addressed to the Secretary Home Department after issue of the impugned orders dated 18-6-1986 under section 12(ii) of the Civil Servants Act, 1974. Obviously it was the fault of Saved Ahmaa. Cashier, S.S.P's Office, Lahore who was also examined in the Court on 9-10-1986 as well as fault of his colleagues including Muhammad Aslam, "Naqdi Moharrir" that the arrears instead of being paid in person to the appellant or in the alternative through 'Road Certificate' as observed by the learned Chairman in par& 12 and page 12 of the judgment. The arrears were stated to be paid to Butt, ASI Retired, on the ground of being his former boss at the cost of the Government funds and with added recklessness of not adopting the mode of Road Certificate or at least to obtain the signatures of the appellant in English with which Mr.Saeed Ahmad Cashier was admittedly familiar.
Accordingly the respondents have not been able to establish on the record that the appellant was paid in person while the Department (S.S.P. Lahore) was to register a criminal case as per directions of the para 11 of judgment, but I feel that there would be no bar to the respondent Department to make fresh payment in person to the appellant and issue a fresh order u/s 12(ii) of .The Civil Servants Act because this judgment has not determined the merits of) the appeal.
A.E./65/Sr.S. Appeal accepted