ABDUL HAMID KHANN (MEMBER).---The appellant, Malik Ehsan-ul-Haq while posted as Assistant Director in the Housing, Physical anti Environmental Planning Department was proceeded against departmentally on account of the following charges: "That while posted as Assistant (Thal), you committed the following irregularity and acted against public interest: That in the case of civil suit filed by Mr. Ahmad Nawaz, one of the land owners, in the Court of Senior Civil Judge, Muzaffargarh regarding the adjustment of his claim m Mandi Town Leiah, you supported the plea taken by the plaintiff that Administrator, Thal Development Authority had already decided to adjust the claim of the said land owner against the area in the Mandi Town, Leiah when you were aware of the fact that the matter regarding adjustment of the claim of the land owner was still under consideration on 25-1-1977 i.e. Three years from the date of passing the order of the Administrator, Thal Development Authority, you also issued a confirmatory letter to EACO Leiah when the case was being dealt with in Housing and Physical Planning Department and the Secretary had taken up the matter with the quarter concerned. Thus you purposely concealed the facts and supported the claimant against public interest for obvious reasons."
2. The Enquiry Officer submitted his report to respondent No.2 Secretary, Housing on 16-5-1984. The final orders imposing the `major penalty' of withholding of pension as per rule 1.8 of the Pension Rules from the date of retirement i.e. With effect from 9-12-1986 was imposed on the appellant vide order dated 1-12-1987 of respondent No.2. The appellant thereafter filed a review petition under Rule 16 of the E&D Rules on 16-3-1988 which was not decided by the competent authority whereafter he filed an Appeal (No.312 of 1989) before this Tribunal on 30-4-1989 which was subsequently withdrawn by him in order to file a writ petition before the High Court. The petition was allowed by a Single Bench of the Lahore High Court. The judgment in this As, was, however, set aside in appeal by the Supreme Court on the point of jurisdiction of the High Court. Now the appellant has again approached this Tribunal with the present appeal for the redress of his grievance.
3. Besides contesting the impugned order on merits, the appellant has contended that although the enquiry had been concluded as far back as 1984 but respondent No.2 kept it pending with him unnecessarily for three long years and finally decided it against the -appellant in 1987 after he had retired from service in 1986; that after the appellant had retired the proceedings under the E&D Rules stood abated and no action adverse to him could be taken thereafter under the said rules; that the most the department could do in the circumstances was to initiate proceedings against him under Rule 1.8 of the Pension Rules which was not done; that the punishment of withholding of pension could not be imposed under the E&D Rules as the same is not speed as one of the penalties under the said rules; that his pension has been withheld despite the fact that respondent No.2 himself had sanctioned it and had forwarded his pension papers to respondent No.4/Accountant-General, Punjab especially so because the notice for personal hearing before the Authority (respondent No.2) was issued to him on 5-10-1987 i.e. After the pension had been sanctioned and the pension ------ submitted to the Accountant-General, Punjab by respondent No.2 :subject-- matter of this notice was misleading with the result that he did not know that it was a notice for personal hearing m respect of the departmental proceedings which he legitimately thought had already abated in consequence of his retirement from service in 1986; that even if the bar of limitation is attracted in this case no limitation runs against a void order which had been passed by an incompetent authority and that he had in any case been persuing his remedy bona fidely for the redress of his grievance and the time spent as such is liable to be condoned in the interest of justice.
4. The respondents have seriously contested the above contentions and have explained that under section 2(b) of the Punjab Service Tribunals Act, 1974 a civil servant has been defined as "a person who has or has been a member of civil service of the Province or who holds or has held a civil post in connection with the affairs of the Province... " Thus even after his retirement the appellant has to be considered, according to them, to be a civil servant in the light of the above definition of the term for continuing the departmental proceedings against him under the E&D Rules; that the appellant "failed to avail the remedy from the proper forum ignoring the provisions of Punjab Civil Servants Act, 1974, hence the time spent by him in improper forums cannot be taken into account and as such his petition is badly time-barred" and that the disciplinary proceedings initiated against him had become infructuous on his retirement and as such the order withholding his pension under rule 1.8 of the Pension Rules "could lawfully be passed against him even after he had proceeded on retirement".
5. Section 2(1)(b) of the Punjab Civil Servants Act, 1974 defines the term `civil servant' as "a person who is a member of civil service of the Province or who holds a civil post in connection with the affairs of the Province...:' It implies that a person remains a civil servant only so long as he is in the service of the Provincial Government and that the moment he retires he would no longer be considered "a member of the civil service of the Province" or holding "a civil post in connection with the affairs of the Province". In other words, he would cease to be a civil servant on his retirement, removal, dismissal from service etc. The definition of the term as given in the Punjab Service Tribunal Act, 1974 that "a civil servant means a person who is or has been a member of a civil service of the Province or who holds or has held a civil post in connection with the affairs of the Province" is an enabling legislation for the specific purpose of making a former civil servant entitled to file appeal before the Punjab Service Tribunal. This definition cannot be pressed into service for any other purpose much less for proceeding against him under the E&D Rules. While the provision enables an ex-civil servant to file an appeal before the Punjab Service Tribunal it does not in any way give any corresponding right to the Provincial Government to proceed against a civil servant who has since retired or has been dismissed, removed from service etc.
6. In this connection the appellant has also relied on Government of Pakistan Policy Circular No.12(8)-Reg(6)/79, dated 10-11-1980 as also on Punjab Government Circular dated 7-9-1982 wherein it has been clarified that a civil servant would cease to be a civil servant after his retirement and if any disciplinary proceedings are pending against him the same shall stand abated. It was further directed that efforts should be made to finalise the disciplinary proceedings within the shortest possible time as laid down under the E&D Rules and that special attention should be given to the disciplinary proceedings against civil servants approaching the age of superannuation. While these instructions make it abundantly clear that the departmental proceedings could not be continued after a civil servant retires, it is incumbent on the competent authority to be vigilant in cases in which civil servants are approaching the age of superannuation.
In the case before us it was in the knowledge of the Authority/respondent No.2 that the appellant was retiring in 1986 and yet he remained sitting on his enquiry report for three years. The conclusion would be that either it is a case of sheer lethargy and utter carelessness or as alleged by the appellant the case was deliberately delayed in order to deny the appellant his hard-earned pensionary benefits. In either case the action taken by the Authority could not be justified by taking shelter behind the definition of the term `civil servant' as provided in the Punjab Service Tribunals Act, 1974 which is clearly not attracted in the circumstances of the case.
7. Rule 7-C of the E&D Rules lays down that "in a case where the Authorised Officer appoints an Enquiry Officer or Enquiry Committee he should ensure that the entire proceedings are completed within a period of 90 days from the date of receipt of direction under rule 5 ". Although the Enquiry Officer had completed the enquiry- -in about a month's time and submitted his report to the Authorised Officer/Authority in 1984 but the final order was not passed, without there being any plausible reason, by respondent No.2 for the next three years although he knew that the appellant was to retire in 1986.
8. Under Rule 1.8 of the Pension Rules Government can "withhold or withdraw a pension or any part of it if the pensioner be convicted of serious crime or be found to have been guilty of great misconduct either during or after the completion of the service provided that before any order to this effect is issued the procedure regarding imposition of the penalty of removal from service shall be forwarded". It clearly means that if it is intended to withhold or withdraw pension of a retired Government servant it could only be done if proceedings as provided in the E&D Rules for imposing the major penalty of removal from service are initiated under Rule 1.8 of the Pension Rules. As explained above, in the instant case the proceedings earlier initiated under the E&D Rules had already abated on the retirement of the appellant. Thus in order to withhold the appellant's pension it was necessary to conduct fresh proceedings under Rule 1.8 of the Pension Rules. The appellant should have been put on notice that if found guilty the penalty of withholding of pension would be imposed on him. Clearly the appellant was neither proceeded against under the Pension Rules nor was he served with a show-cause notice, stating therein as to why his pension should not be withheld. The show cause notice actually served upon him did not mention any such penalty. In fact, the `Authority' did not propose any penalty whatsoever in the said notice. This omission alone is capable of rendering the entire proceedings invalid. In any case, the defense put up by him was with reference to the major penalties as provided in the E&D Rules and not to the one which was finally imposed on him. He has thus clearly been prejudiced in the matter of his defense and the appellant is justified in his grievance that he has not been given adequate and proper opportunity of defending himself.
9. Section 18, subsection (1) of the Punjab Civil Servants Act, 1974 creates an indefeasible right in favour of a retiring civil servant to receive pension on his retirement. It says that he "shall be entitled to receive pension ". Obviously it cannot be denied to him except on the grounds speed in subsection (3) thereof: Those grounds are really formidable in their ramifications. These are:
(i) dismissial or
(ii) removal from service for reasons of discipline.
If the civil servant suffers from any of these penalties, then he would have no right to get pension.
Conversely, it would mean that dismissal or removal from service of a civil servant is a condition precedent for withholding his pension. In the instant case the appellant has not been awarded any of these punishments and as such in view of the provisions of section 18(3) ibid his pension could not be withheld.
10. The learned DA submitted that rule 1.8 of the Pension Rules nonetheless authorised withholding or withdrawing of the pension and that the action was taken in accordance therewith. We are afraid that the-rule could not be given pre-eminence over the statutory provisions of section 18 ibid which makes such pension admissible only in the abovementioned two contingencies. If those contingencies are not satisfied, no such action could be taken. The corollary was that in their absence, the rule might not be conformable to the statute.
11. Under Punjab Housing and Physical Planning Department Delegation of Powers Rules, 1974 `Government' has been designated both as the Authorised Officer and the Authority in the case of the appellant. The arrangement is, however, against the scheme and spirit of the E&D Rules. In the judgment dated 23-5-1993 in Appeal No. 47/92 (Muhammad Razaq v. Conservator of Forest, Range Management Division, Chakwal) this Tribunal has held that " the same officer can act only to the extent an Authorised Officer could and no more". Thus for the detailed reasons given in the aforesaid judgment we hold that in the case before us respondent E No.2/Secretary Housing acting as Authorised Officer could not function as Authority in respect of the same person i.e. Appellant.
This has rendered the proceedings invalid.
12. As shown above, the impugned order is void ab initio. We do not, therefore, find that the bar of limitation is applicable in this case. The delay, if any, in filing this appeal is accordingly condoned in the interest of justice.
13. Resultantly, we allow the appeal, set aside the impugned order and direct that the appellant shall be given all pensionary benefits with effect from the date of his retirement. No costs.