' NASIR ASLAM ZAHID, J.--The petitioner was an employee of Municipal Committee, Nawabshah and after rendering 25 years service he retired as an Octroi Inspector in Grade-6 on 29-12-1982. It is claimed by the petitioner that he was entitled to the grant of pension and gratuity under the rules.
His pension papers were duly prepared but, on account of an audit objection about some loss that was alleged to have been caused to the Municipal Committee during the year 1979-80 in connection with one bid for export tax contract, an amount of Rs,22,263.90 was withheld from his gratuity. The petitioner had approached the Municipal Committee and the concerned officials of the Government of Sindh but without any success. Admittedly neither any departmental proceedings have been taken nor any enquiry has been conducted so far to place responsibility on the concerned officers of the Municipal Committee Nawabshah about the alleged loss incurred during the year 1979-80. The petitioner has now approached this Court under Article 199 of the Constitution praying for a direction to the respondents to pay the withhold amount of Rs,22,263.90 alongwith interest at 15% from the date the amount was withheld till it is paid to the petitioner. We have heard Mr. Rao M. Shakir Naqshbandi, learned counsel for the petitioner and Mr. K. M. Nadeem, learned A.A.-G. Appearing on behalf of the respondents.
2. Learned counsel for the petitioner has taken us through applicable West Pakistan Civil Services Pension Rules, 1963. Instructions contained in S&GA. Department Letter No,S(R)5-8/746/65 SOXIII, dated 1-2-1967 provide as follows:-- "Pension cases are generally deferred where a retired Government servant is likely to be dismissed or some recovery is expected to be made from him. It has been decided that the following action be taken in future:
(1) If a Government servant is likely to be dismissed or it is expected that some recovery has to be made for loss caused to Government then pension and gratuity should not be sanctioned for a period of one year during which the administrative department, should ensure that enquiry is finalized. At the end of this period, the pension and gratuity must be sanctioned even if the enquiry is not completed.....
3. It has further been decided that in no case should an enquiry be allowed to linger on for more than one year. On conclusion of the enquiry, the whole case should be reassessed and pension/gratuity should be finally sanctioned in the light of the result of the enquiry. In case an enquiry is not finalized within one year, full pension and gratuity should be sanctioned at the end of the year."
3. In this matter, admittedly, no enquiry has been held to saddle the petitioner with the responsibility for the alleged loss incurred by the Municipal Committee during the year 1979-80. No departmental action has been taken. Only on the basis of an audit objection, the amount in question has been withheld from the gratuity payable to the petitioner. It is unfortunate that in spite of the petitioner having retired nearly 8 years ago, neither any proceedings have been taken nor an enquiry held to determine finally the liability of the petitioner for the alleged loss. Even otherwise the enquiry should have been commenced and then concluded within one year of the retirement of the petitioner. The instructions of the Government themselves require finalisation of the enquiry within one year failing whereof the entire amount payable to a retired employee on account of pension and gratuity etc. Is required to be paid, which has not been done. Mr. K.M.
Nadeem, learned AA.-G. Does not oppose the petition in view of the applicable rules and instructions on the subject.
4. We are of the view that no power is vested in the Government to withhold payment of the pension or gratuity of an employee for an indefinite period without holding an enquiry and determining the liability of the retired employee for any loss caused to the Government. Even according to the instructions of the Government, the enquiry should have been finalised within one year i,e, by the end of 1983. We are now in the end of the year 1990. The withholding of the amount in such circumstances by the respondents is not warranted by law.
5. As a result, this petition is allowed and respondent No,4, Municipal Committee Nawabshah, is directed to make payment of the withheld amount of Rs,22,263.90 to the petitioner. As the amount has been withheld for over 8 years, it is directed that this amount shall be paid to the petitioner within one month from today. The petitioner is also granted costs. As regards interest and special costs, claimed by the petitioner, we are of the view that the petitioner can take resort to a civil suit for damages against the respondents for withholding the amount if such suit is otherwise maintainable under the law.