1. MUHAMMAD GUL, J. -This appeal by special leave is from the judgment of a Division Bench of the Peshawar Bench of the former High Court of West Pakistan, whereby a writ petition moved by Muhammad Said Khan, a retired Additional Chief Engineer, 1'. W. D. (B & R) (respondent No. 1 herein) was accepted and an order by the Governor of the former Province of West Pakistan directing an enquiry for the purpose of action under rule 1.8 (a) of the West Pakistan Civil Service Pension Rules, 1963, on charges of "grave misconduct" was declared to be without lawful authority on the twin ground namely-
(a) That the allegations in respect of which enquiry is sought to be made did not amount to "misconduct and much less grave misconduct"; and
(b) That the departmental proceeding for the aforesaid purpose having been ordered more than one year after the retirement of respondent No. 1, was time-barred.
2. The proposed enquiry was a sequel to the collapse of two piers of Mingora bridge in June 1964, and respondent No. 1 was among the officers, who during the major period being in charge of Peshawar region, remained responsible for its proper construction.
3. Leave was granted in this case, as the question involved was of general Importance and also to consider whether the judgment of the Division Bench proceeded on a correct interpreta--petition of rule 1.8 (a) of the Pension Rules.
4. Respondent No. 1 held the appointment of the Additional Chief Engineer, Peshawar Region from 1- 121959 to 4-1-1962. The work relating to the construction of Mingora Bridge actually started in August 1959, that is to say, before respondent No. 1 took over as the Additional Chief Engineer, Peshawar Region, and was completed on 15-3-1962 after he had relinquished that appointment. He retired from service as from 4-10-1964, on his own request, before he reached the age of superannuation.
5. Pursuant to above direction charges of grave misconduct were drawn against respondent No. 1 and two serving Superintending Engineers, who were also concerned in the construction of the bridge. The following memorandum of charges served on the respondent No. 1 on 21-12-1965, will indicate the nature of allegations against him: "You, Mr. Mohammad Saeed Khan, Additional Chief Engineer (Retired) while in charge of construction of Mingor a Bridge, Swat, from 30-11-1959 to 5-1-1962 are hereby charge-- sheeted for the following acts of grave misconduct alleged to have been committed by you which resulted in the collapse of a part of Mingora Bridge: --
(1) For the construction of Mingora Bridge, the depth of piles was calculated as 40-08 ft. And 27.08 ft. In the rough cost and sanctioned estimates respectively. During actual constructions of the said Bridge, on discovering that the penetration of the piles beyond 13' to 15' was very slow, you, instead of making its an attempt to find out the cause of such slow Penetration haphazardly altered the length of the piles below pier No. 1 as 13'-15', in spite of the fact that there was no charge in the bed strata, as shown in the rough costs estimate. While accepting full responsibility for the alteration as aforesaid, you hold that the decision was taken on the presumption that no scour would be allowed to take place and that the pile would remain unexposed which conditions were practically impossible to achieve.
(ii) You did feel the necessity of making alternate arrangement to drive the said piles up to 40' or 27.69' as provided in the rough cost or the detailed estimate respectively as is evident from the attempts made by you to get better pile driving equipment from the M. E. S. And further to get quotations from Gammons Ltd. For the bridge. The driving of the said piles to refusal alone to a death less than the calculated depth of 40' to the rough cost estimate of 27-69' in the sanctioned estimate should not have as a matter of fact, satisfied you. Thus you altogether ignored the calculated depth of the said piles in either of the estimates and banked upon the driving of piles to refusal.
(iii) You allowed the construction work of the bridges to continue without formal approval of the design and without technical sanction in disregard to the Codal Rules and this action on your part resulted in wasteful expenditure.
(iv) Despite full knowledge of the Incapacity of your equipment, you accorded the technical sanction as aforesaid on 20-3-1961 after a good deal of defective construction had been carried out and after having failed to take the said piles to the designed depth as given in the rough costs estimate and sanctioned estimates.
(v) After reducing the depth of the piles to 28'-69' in the sanctioned estimate and even lower (between 12'-5' and 22'-4") you wrongly allowed the protection of the bed of the bridge with boulders in wire crates, instead of heavy plain cement concrete blocks of 3' x 4' x4' for which provision also existed in the rough cost estimate even when the length of piles was 40' and
(vi) You changed, without any justification, the H. F. L. And the scour depth below bed level from 1000 1-40' & 20.88' provided In the rough cost estimate to 1105' 9.79' respectively fn the sanctioned estimates. This action on your part was done deliberately to reduce the length of the piles, as you had discovered through actual experience on the site that the calculated depth of the piles could not be achieved
(2) By reason of the above you are guilty of grave misconduct within the meaning of rule 1.8(a) of West Pakistan Civil Services Pension Rules and have rendered yourself liable to withholding or withdrawing your pension or any part thereof under the said rules."
6. It appears that because of the impending enquiry and the nature of charges against him, orders relating to the grant of pension to respondent No. 1 were withheld. There was exchange of correspondence in course of which respondent No. 1 protested. Initially the Government was evasive but subsequently he was informed that his pension was being withheld because of the enquiry against him and as soon as the enquiry 13 completed his pensionary claim will be settled.
7. This obliged respondent No. 1 to move the writ petition to question the vires of the Governor's order directing enquiry against him and which had led to a virtual stoppage of his pension.
8. It must now be taken as well-settled that a person" who enters Government service has also something to look forward after his retirement, to what are called retirement benefits, grant of pension being the most valuable of such benefits. It is equally well-settled that pension like salary of a civil servant is no longer a bounty but is a right acquired after putting in satisfactory service for the prescribed minimum period. A fortiori, it cannot be reduced or refused arbitrarily except to the extent and in the manner provided in the relevant rules. Conversely full pension admissible under the rules is not to be given as a matter of course unless the service rendered has been duly approved (See Art. 470, Civil Service Regulations). It is equally well settled that if the service has not been thoroughly satisfactory, the authority sanctioning the pension is empowered under the said Article to make such reduction in the amount as it may deem proper. This power is however exercisable only before pension is actually sanctioned.
9. The learned Judges in the High Court took the view that even if the allegations in the memorandum of charges were accepted as correct, that would not amount to "misconduct and much less to grave misconduct" to justify the withholding of pension payable to respondent No. 1. The learned Judges thought that "grave misconduct" connotes an act or omission "in the nature of an offence", which would not include mere negligence or carelessness and that there was nothing in the charge-sheet to indicate that the respondent No. 1 had committed any offence or crime. In support of this view, reliance was placed on Poad v. Scarborough Guardians ((1914) 3 K B 959) in which the expression "grave misconduct" within the meaning of section 7 of the Poor Law Officers'
10. Superannuation Act, 1896, was interpreted not to include negligence or carelessness.
11. The learned Advocate-General appearing on behalf of the appellant on the other hand argued that the question whether or not the allegations against respondent No. 1 amounted to misconduct, was essentially a question of fact which could be determined satisfactorily only after the enquiry officer after examining all the relevant facts including technical data had made his recommendations to the appointing authority. According to the learned Advocate-General, the learned Judges in the High Court have frustrated the enquiry by imposing their own judgment for that of the enquiry officer who was required to make his recommendations to the sanctioning authority. The argument, in our opinion, must prevail. We have no doubt that in respect of the public services it is within the responsibility o the executive to maintain proper standards among them and at the same time to maintain their efficiency and the confidence of the public by taking appropriate disciplinary action against the persons whose conduct has tended to lower the standards below those required. This power is relatable both to the general duty of maintaining high standard in the administration as well as to the requirement of service management. This applies equally in relation to the serving officers as also to those who have retired but whose pensionary claims are not yet settled.
12. It is noteworthy that in a subsequent case another Bench of the same Court in Sultan Muhammad Naeem Khan v. Chief Secretary to Government, West Pakistan (PLD 1969 Pesh. 237) has taken the view that the term "grave misconduct" in rule 1.8 (a) should be given its dictionary meaning in the absence of any definition in the Pension Rules and that it will be a question of evidence as to whether or not the allegations if established, would amount to "grave misconduct". It was held in that case that the Government -has competent to look into allegations of misconduct against a pensioner for acts committed during or after the completion of service. In our opinion the judgment proceeds on a correct interpretation of rule 1.8 (a) of the Pension Rules.
13. It was pointed out by this Court, in the case of Tariq Transport (PLD 1958 SC (Pak) 437) that in the case of its writ jurisdiction the High Court can never substitute itself for, or assume the responsibility of the executive for the simple reason that it does not have the requisite information, experience and training to discharge the executive function. That Court cannot, therefore, itself make any executive order, its function being confined to issuing of directions on matters of law. Therefore, where an administrative or executive officer acts under a law, the High Court will control the action by an appropriate order only if he goes out of law, i.e., exercises a jurisdiction not vested in him by law. In the instant case, it can scarcely be controverted that on the facts brought to his notice the Governor had the full authority to order an enquiry against respondent No. 1 so as to determine his responsibility for any omissions or commissions in the course of the construction of the bridge resulting in the partial collapse.
14. Indeed it is possible to conceive of a case of gross misconduct arising from a gross error of judgment which may be attributable to want of due diligence. In such cases much will depend upon the degree of care which one is required to exercise in a given situation. Again standard of conduct or care as the case may be, may vary from person to person depending upon his position in life, and the nature of his responsibility in a given situation.
15. Therefore, both on general principles as also on the wording of rule 1.8 (a) to which reference will be made presently in greater detail, the executive had the exclusive power to determine whether upon the facts of the case respondent No. 1 was guilty of gross misconduct.
16. On the second question whether departmental proceedings against respondent No. 1 were hit by one year's limitation, it was not disputed before us that the memorandum of charges was issued to respondent No. 1 more than a year after his retirement. The question therefore is now reduced to this; whether as held by the learned Judges in the High Court, proviso to clause (6) of rule 1.8 on its proper interpretation can be extended to cover to clause (a) also? To determine the validity of the argument canvassed for and against the extended meaning of the proviso to clause (b), it is necessary to set out in extenso both the clauses which read- "1.8 (a) Good conduct is an implied condition of every kind of pension. Government may withhold or withdraw a pension or any part of it, the pensioner be convicted of serious crime or be found to have been guilty of grave misconduct either during or after the completion of his service, provided, that before any order to this effect is issued, the procedure regarding imposition of the penalty of removal from service shall be followed.
(b) Government reserve to themselves the right of recovery from the pension of a Government pensioner on account of losses found in judicial or departmental proceedings to have been caused to Government by the negligence or fraud of such Government pensioner during his service, provided that such departmental proceedings shall not be instituted after more than a year from the date of retirement of the Government pensioner."
17. The reason in support of the extended application of the proviso to clause (b), and which "weighed heavily" with the learned Judges in the High Court can best be stated in their own words.
18. "(1) The time lag inserted in rule 1.8 (b) that "departmental proceedings shall not be instituted after more than a year from the date of retirement of the Government Pensioner" is manifestly intended to safeguard the interest of the pensioners so that the sword of Damocles should not hang over them for an indefinite period. If the interpretation sought to be placed by the Additional Advocate- General were to be accepted, it would mean that where Government servant is "convicted of serious crime or be found to have been guilty of grave misconduct", notwithstanding the fact that the offence or the grave misconduct may not be relatable to the sphere of his duties, his pension can be withheld or withdrawn after conviction, but on the other hand, where a Government pensioner is found guilty in judicial "or departmental: proceedings" have caused losses to the Government "by the negligence of fraud of such Government Pensioner during his service", the Government servant can get away with the losses if the departmental proceedings are not instituted within one year of the retirement. Surely the Legislature which is always presumed to be wise could not have intended such a situation. To illustrate our point, a Government servant with a long unblemished record for honesty and efficiency after retirement is convicted of a serious crime say murder, he renders himself liable for withdrawal of his pension or withholding of his. Pension not withstanding the fact that the crime may have taken place after several years of his retirement, but on the contrary if a Treasury Officer or some high functionary of State Bank were to defraud the Government say of several lacs of rupees they would get away with the fraud if the fraud is detected after one year of his retirement.
(2) The other reason is that in rule 1.8 (a) notwithstanding., the conviction of the pensioner of a serious crime or having been found to have been guilty of grave misconduct, the pension cannot be withdrawn or withheld unless the pro--cedure prescribed by the proviso to that clause is observed, namely, "that before any order to this effect is issued, the procedure regarding imposition of the penalty of removal from service :hall be followed" . . . . ."
19. A plain reading of both clauses (a) and (b) would however, make it at once clear that each clause is a self-contained and independent provision designed to cover two entirely different situations.
20. Under clause (a) maintenance of "good conduct" is made an inseparable condition for the grant or continuance of pension to a Government servant and the Government reserves to itself plenary power to withhold or withdraw a pension or any part thereof if the pensioner is convicted for serious crime or found guilty of grave misconduct whether during or after completion of his service.
21. The language of this clause is clear and does not admit of any doubt. This is also consistent with Article 470 of the Civil Service Regulations which provides that full pension admissible under the rules is not to be given as a matter of course unless the service rendered has been approve, for pension. If the service has not been satisfactory, the authority sanctioning the pension is empowered to make such reduction in the amount as it thinks proper. However, clause (a) cannot be used to affect penal recovery if there is a case of fraud or negligence during the service though it may be made a ground for the finding that the service has not been thoroughly satisfactory.
22. Clause (b) of rule 1.8 however appears to be a recent addition which corresponds to art. 351-A, Civil Service Regulations, is of great importance. It empowers the Government to order recovery from the pension of the whole or any part of any pecuniary loss caused to the Government if the pensioner is found "in departmental or judicial proceedings" to have been guilty of grave misconduct or negligence during his service.
23. Another important distinction between the two clauses is that under clause (b) the recovery will be only of a specified amount and for that reason the order will exhaust itself once the recovery is made. On the other hand any order made under clause (a) will depend upon the general quality of service rendered. It will reduce his pension for the remainder of his life and not for a particular period only or in respect of a specified sum as under clause (b). This clearly brings into sharp relief the different purposes for which clauses (a) and (b) have been framed.
24. To support their conclusion that proviso to clause (b) governs not only clause (b) but clause (a) also, the learned Judges in the High Court relied upon two cases from Indian jurisdiction, viz., Saradambal v. Seethalakshmi (AIR 1962 Mad. 108) and Broach Co-operative Bank Ltd., Broach v.
25. Commissioner of Income-tax, Bombay Mofussil (AIR 1950 Mad. 45). It seems that the learned Judges merely noticed the head-notes without adverting to the statutory provisions upon which the two precedent cases proceeded. In the Madras case the relevant provision read as follows: - "Art. 11 (i) Application for probate or letters of administra--petition to have effect throughout India Proper fee twenty --five rupees.
(ii) Application for probate or letters of administration not falling under clause (i)-
(i) if the value of the estate does not exceed Rs. 1,000; 12 annas.
(ii) if the value exceeds Rs. 1,000: five rupees.
26. Provided that- If a caveat is entered and the application is registered as a suit, one-half the scale of fee prescribed in Article 1 of Schedule I on the market value of the estate less the fee already paid on the application shall be levied."
27. It will be seen that the above proviso is not an integral part of the enacting provision in clause (ii) and the point of distinction between the two clauses turned solely upon whether the probate was to have effect throughout India or it should be restricted to the State in which the probate is issued by the High Court or by a District Court. It is important to point out that the subject --matter of two clauses in the precedent case was the same and the proviso was separated from the enacting part of clause (b). It was on these premises that the learned Judges concluded that the proviso covered both the clauses.
28. Similarly the Bombay case proceeded on the interpretation of section 8 of the Income-tax Act, 1922 (Act, X1 of 1922). A reference to the section will show that three succes--sive provisos are attached to a singular enacting provision and this was the prime reason why the three provisos and the enacting provision were read as a whole. In the Instant case on the other hand, as pointed out already clauses (a) and (b) of rule 1.8 are distinct provisions designed to cater for two different situations and therefore the precedent cases relied upon by the learned Judges do not advance the proposition which weighed with the learned Judges in the High Court. Furthermore in the instant case the proviso to each clause is not in the nature of an exception or a provision in essence it lays down a condition precedent for the exercise of power reserved to the Government under the enacting provision in each clause. For instance in clause (a) the power reserved to the Government to withhold or withdraw pension or any part thereof is not to be resorted to unless the procedure regarding the imposition of major penalties under the Efficiency and Disciplinary Rules is followed. Similarly in clause (b) the power reserved to the Government cannot be resorted to after the efflux of one year from the date of retirement of the pensioner. Therefore, these two limiting provisions though worded as provisos are not provisos stricto sensu but are in the nature of conditions precedent for the exercise of power reserved to the Government which in each case has necessarily to be satisfied before an order is made under either of the two clauses. If we may say so with due respect it would be doing violence to the plain language of clause (b), if the so-called proviso in it is also to be construed as a proviso to clause (a) without changing radically the arrangement of the wording of the two clauses.
29. As to the object underlying the two clauses, the reason for the limitation of one year in clause (b) is not far to seek. Under this clause the Government reserves to itself the right to recover from the pension any sum which it has suffered by way of loss while the pensioner remained in service. It is plain that this right could not have been available to the Government for all times to come. On the other hand under clause (a) maintenance of good conduct throughout his life is an inflexible obligation of a pensioner so that it he is found guilty of a serious crime or gross misconduct even after his retirement he is liable to suffer a diminution in the amount of his pension, no matter how long it happens after his retirement. In any case the distinction in the object underlying the two clauses is manifest, it is also brought out by the express language. Therefore the learned Judges speaking with due respect, were plainly in error, to read proviso to clause (b) out of its context and to extend it to qualify clause (a) also.
30. For the foregoing reasons we accept the appeal and set aside the judgment of the Division Bench.
31. The result is that it would be competent to the Government to hold enquiry on the charges already served upon respondent No. 1. We however consider it necessary to enter a caveat that except as a result of the enquiry contemplated under clause (a), the Government has no power under the Rules to suspend the payment of whole or any part of the pension otherwise admissible to respondent No. 1 pending an enquiry against him. There fore, any order in that behalf in anticipation of the result of the enquiry will be without any valid basis. In the circumstances of the case we make no order as to costs.
…and 8 more citing cases