' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, calls in question order dated 6-7-1988 of the Punjab Labour Appellate Tribunal, whereby respondent No, 3 was directed to be paid salary and allowance for the period he remained under suspension from 3-11-1980 to 16-5-1983, due to the pendency of a criminal case against him, from which he was ultimately acquitted.
2. The case of the petitioner is that respondent No, 3 retired from service by efflux of time on attaining the age of superannuation of 60 years on 30-11-1980 and, therefore, no question arises of giving him any salary subsequent to that period merely because erroneously he was kept under suspension from 3-11-1980 to 16-5-1983, during which period he also received subsistence allowance, which is now being claimed to be deducted from his dues.
3. Learned counsel for respondent No, 3 vehemently argued that settlement letter No, 729-E/3/710- P-1, dated 4-10-1980 was issued by the Divisional Superintendent of Railways to all concerned agencies to know if there were any debits against him during the last few months of his service, he worked as Station Master, as he was due to retire on 30-11-1980 under the age limit. Subsequently, this letter was cancelled by the Divisional Personnel Officer, Pakistan Railways, Lahore, vide memo No, 729-E/3/710-P-1, dated 12-11-1980 with the remarks:-- "He is not to be retired from service till the case against him is finalised."
4. I have perused the record brought by the Assistant Personnel Officer, Pakistan Railways, Lahore with the assistance of the learned Additional Advocate-General and the learned counsel for the contesting respondent. The true fact of the matter is that on 22-2-1981, the Divisional Superintendent, Pakistan Railways, made a reference to the Chief Personnel Officer, Lahore, for the retention in service of respondent No, 3 beyond the age of superannuation as he was placed under suspension on 3-11-1980 which continued after the superannuation. This reference was turned down by the Secretary, Railways Board vide its letter No, E.II/85-RT-1, dated 4-4-1985 with the following remarks:-- "On attaining the age of superannuation, which is at present 60, retirement is automatic under the operation of section 13 of the Civil Servants Act, 1973. Similarly under rule 2046-A/RII, the date of compulsory retirement of a Railway servant, other than a Civil Servant, shall also be the date on which he attains the age of 60 years. Mr. Shah Nawaz, therefore, stands retired on 30-11-1980 on attaining the age of 60 years. The instructions quoted from Personnel Manual Vol. I in paragraph 2 of your letter No, 851-E/58 (APO-I), dated 31-12-1984 were issued in October, 1945 and are inconsistent with the provisions of Constitution and rule 2046-A/RII. In the circumstances the proposal made in your letter under reference to retain Mr. Shah Nawaz Khan in service from 1-12- 1980 to 16-5-1983 cannot be accepted. The person concerned at default for not following provisions of rule 2046-A/RII should be taken up under intimation to this Ministry and the amount over paid to Mr. Shah Nawaz Khan be recovered from him after obtaining the legal opinion. Sd/- (A.J.N.R. NASIMI). for Secretary, Railway Board".
5. It would thus be seen that the Divisional Personnel Officer Pakistan Railways, Lahore, was not competent to issue the direction that respondent No, 3 was not to retire from service till the case against him was finalized. The Secretary, Railway Board has rightly observed in the above-quoted letter that respondent No, 3 retired from service by operation of law on attaining the age of superannuation. This being so, no question arises for giving him any salary subsequent to that period merely because he was erroneously kept under suspension from the date of retirement up to 16-5-1983 during which period he drew subsistence allowance.
' In view of the foregoing discussion, order dated 4-7-1989 of the Punjab Labour Appellate Tribunal is declared as without lawful authority and of no legal effect. The writ petition is accepted, but the parties shall bear their own costs.