This is an appeal against the order dated 3-11-1990 (Annexure `E') passed by the Conservator of Forests, Lahore Circle whereby the appellant Raja Shafqat Ahmed Khan of Sialkot Forest Division was granted 365 days leave on full pay preparatory to retirement with effect from 1-10-1990 with the stipulation that he would stand retired on 30th September, 1991 (afternoon), as also against the order dated 24-7-1991 (Annexure `F'), whereby the representation made by the said appellant against the above order was filed by respondent No.1 on the ground that LPR had been granted to the said appellant on his own request and could not, therefore, "be cancelled under the rules".
2. Briefly, the facts of the case are that the appellant vide his application, dated 28-9-1990 (Annexure `C') requested the respondent No.3 that he should be allowed to proceed on LPR with effect from 1-10-1990 to 30-9-1991 as he was unable to render service owing to certain unavoidable circumstances. Subsequently, however, the appellant allegedly requested vide his application, dated 23-10-1990 (Annexure `D') that he had sought to proceed on LPR under undue pressure and that after having cool-mindedly pondered over the matter, he had decided to resume duty.
According to him, the application for grant of LPR was still lying in the office of DFO (respondent No.3) and had not been passed on to the competent authority. He, therefore, requested respondent No-3 to return his application for LPR and to allow him to resume duty. He also indicated that in case respondent No-3 felt disturbed, he would seek his transfer out of Sialkot Forest Division to save the said respondent from any mental worry. Notwithstanding this application, the Conservator of Forests (respondent No. 2) proceeded to notify the grant of LPR for 365 days with effect from 1-10- 1990 and actual retirement with effect from 30-9-1991, vide his order, dated 3-11-1990 (Annexure `E').
The representation made by the applicant was subsequently filed by respondent No.1 as well.
Aggrieved by the above decision on the part of respondent No.1 read with the earlier order, dated 3-11-1990 issued by respondent No.2, the appellant chose to assail the said orders vide the appeal in question.
3. The decision to retire the appellant taken by respondent No.2 and subsequently by respondent No.1 has been assailed on the ground that-- (a)the impugned orders were against the law and facts; (b)the LPR was sanctioned on 3-11-1990, with effect from 1-10-1990, the implication being that the order was bad in law as no order could take effect retrospectively; (c)the option to proceed on LPR had not been exercised by the appellant of his own free volition; that the appellant was transferred under the direction of the Federal Minister and was thus forced to go out of service by applying for LPR; that he had applied for LPR under duress, coercion and undue influence; that the application for LPR could be returned to him when he made such a request on 23-10-1990 because, by that time, no action whatsoever had been taken on his earlier application; that the action on the part of the competent authority in ignoring his request for withdrawal of LPR was mala fide and, therefore, illegal; (d)that the appellant had been victimized because he failed to oblige a Federal Minister in his quest for illegal gains and that; (e)the final order had been passed on his representation by Government which was not competent authority under the law.
4. Commencing his arguments to substantiate the allegation of duress, coercion and mala fide on the part of the respondents who had allegedly acted under instructions of the then Federal Minister Ch. Amir Hussain, the learned counsel for the appellant has produced the original letter of the said Minister, dated 19-7-1989 addressed to "Raja Sahib, Blck Officer, Chaprar" (copy at Annexure `A') and has drawn attention to the Transfer Order No.10/DFO, dated 18-9-1990 (Annexure `B') whereby the said appellant was transferred from Chaprar Block Sialkot Sub-Division to Kot Nainan Block, Shakargarh Sub-Division. The perusal of the said transfer order (Annexure `B') shows that this order was endorsed to the Federal Minister for Law, Justice and Parliamentary Affairs, Government of Pakistan, Islamabad for favour of information with reference to his telephonic directions dated 8-9- 1990. Counsel contends that it was the beginning of the sate of fear, which soon engulfed the appellant with the result that the appellant seriously started thinking of proceeding on LPR particularly when, in the meantime, he had been called by the Minister at his residence to hold out the threat that he would soon be sacked. Counsel stated that the appellant sought to proceed on LPR due to the circumstances, as aforesaid, but; later on, he sought withdrawal of his application for LPR on 23-10-1990 thinking that he could make peace by getting himself transferred from the Sialkot Forest Division itself. However, instead of allowing the appellant to withdraw his application for LPR, the LPR was notified vide order, dated 3-11-1990.
5. Counsel further contended that the representation was to be decided by the next higher authority i.e. Chief Conservator of Forest. However, it was decided by the Secretary, Forest (respondent No.1) who was not competent to do so. Counsel maintains that the final order passed by respondent No.1 in rejecting his request for withdrawal of his application for LPR was therefore, ab initio void and a nullity in the eyes of law as it had been passed without any jurisdiction whatsoever.
6. Elaborating his point as to whether it was mandatoy for the respondents to allow withdrawal of application for LPR when a request had been made by the said appellant before the LPR had been notified by the competent authority, the learned counsel relies on the judgment reported vide 1984 PLC (C.S.) 1191 (Raft Ullah v. Divisional Forest Officer, Gujrat) which is partially reproduced below: -- "---------The main argument of learned District Attorney is based on the ground that as the appellant stood retired on the date when his request was so acceded to by the Conservator of Forests, therefore, he could not be permitted to withdraw his request. This may be so but the fact remains that the crucial point for determination for us would be, as to whether a civil servant could withdraw his request for retirement when he was still on LPR. In the present case, we find that there is no dispute about the fact 'that the appellant did make a request for withdrawal of his earlier prayer for retirement when he was still on LPR. In view of these circumstances, it would not be the date on which his request was acceded to but the date on which he made such request before the competent authority. In this manner, we have no hesitation to repeal the argument of the learned District Attorney that the appellant was not permitted to recall his retirement as he stood retired on the date when such request was accepted by the Conservator of Forest.
The appellant in this case has rendered 33 years service to the Department and would retire in the year 1982 and thus has clear 10 years of service before him. We also cannot remain oblivious to the fact that a person having such long experience and good record should be allowed to continue in service to serve the Department. In this way the department will be a gainer to utilize the service of a person with good record and long experience behind him."
7. Counsel pointed out that the above decision of this Tribunal was eventually upheld in Civil Appeal No.698/88 on 28-7-1991. Counsel contended that the manner in which LPR of the appellant was notified rather in haste particularly when he had already sought withdrawal of his application for LPR and had even sought his transfer from the Forest Division itself unequivocally confirms the charge of mala fide on the part of the respondents who were acting in league with a sitting Minister. He accordingly urged that the impugned orders be set aside.
8. The learned District Attorney, at the very outset of his arguments pointed out that the appeal was premature in view of the fact that the appellant had sought redress of his grievances against the impugned order passed by respondent No.2 on 3-11-1990 whereas he had not availed the remedy of representation against the said order, although he was required to do so under section 21(2) of the Punjab Civil Servants Act, 1974. The learned District Attorney contended that the application, dated 23-10-1990 purported to have been made by the appellant had actually never been submitted by him. He contended that the copy of the application at Annexure `D' itself shows that it was never received by the DFO nor had it been diarised in the Divisional Forest Office and that there was nothing on record to show that the said application had been sent through registered post; that the genuineness of the application for withdrawal of LPR also suffered from the fact that the appellant Shafqat Ahmed Khan had not even shown his designation or address thereon. The learned District Attorney further contended that the transfer of the said appellant could not be termed as having been ordered with mala fide intent because the appellant had been transferred after completing his 3 years tenure at Chaprar Block; that the Minister's letter was addressed to the appellant on 19-7-1989 as alleged by him whereas the order of his transfer was issued on 18-9-1990 after over 14 months. If the Minister had really felt annoyed with the appellant, he would not obviously be required to wait for 14 months. Moreover, the appellant was transferred from Sialkot Sub-Division to Shakargarh Sub-Division i.e. Within the same Forest Division; that the appellant had not been singled out for transfer for the reason that as many as five officials (including the appellant) had been transferred. According to him, the endorsement made to the Minister does not indicate that the transfer order had been issued only with reference to the instructions of the Minister for transferring the appellant alone. He further averred that the Minister's letter of recommendation too only mentioned that the bearer of the letter would explain his difficulties/problems and the Minister had nowhere asked the appellant to oblige the bearer of the letter in his overtures for illegal gains. The learned District Attorney maintained that the charge of mala fide was in fact an afterthought on the part of the appellant as he had actually applied for proceeding on LPR of his own free will and that no pressure whatsoever had been exerted on the part of the respondents to extract a request from the appellant for the grant of LPR to him.
9. I have given anxious thought to the arguments advanced by the parties to the appeal and have perused the record.
10. The following points of vital importance warrant deliberation in this case: -- (1)Whether the appellant had exercised his option for retirement on his own volition or under coercion and fear of victimization as alleged by him?
(2)Whether the appellant had sought withdrawal of his request for retirement before his LPR/retirement was notified by the authority i.e. The Conservator of Forests?
(3)Whether the request for proceeding on LPR could be legally withdrawn before it was notified?
(4)Whether the request for proceeding on LPR/retirement could be withdrawn after the commencement of LPR and before the actual date of retirement?
(5)What would be the import of the request for withdrawal of LPR made by the appellant for the second time on 7-4-1991(i.e. Before the actual date of retirement) with reference to the cases of disciplinary action which had, in the meantime, been initiated against him with the result that he apprehended delay in finalization of his pension and considered withdrawal of request for LPR in his best interest?
11. As regards the contention that the appellant had exercised his option for proceeding on LPR as a result of coercion, the record clearly shows that the Federal Minister, vide his private letter, dated- 19-7-1989 sent one Ch. Rafi to the appellant showing that the bearer of the letter would explain his own grievances verbally. The Minister urged the addressee to redress the grievance. The order, dated 18-9-1990 whereby the appellant was transferred from Chaprar Block Sialkot Sub-Division to Kot Nainan Block Shakargarh Sub---Division was endorsed, amongst others, by the DFO Sialkot to the Federal Minister for Law, Justice and Parliamentary Affairs, Government of Pakistan, Islamabad.
For favour of his information with reference to his telephonic directions "to the undersigned on 8-9- 1990". The arguments of the District Attorney that the telephonic talk of the Minister with DFO might not necessarily have been concerned with the appellant in question cannot be accepted particularly when the said endorsement confirms the fact that the said Minister had given certain directions about the transfer of the Foresters to the DFO, which were complied with. The surprising- point in the whole episode is that the said Federal Minister had absolutely nothing to do with a provincial subject and his interference in provincial matters tends to confirm that he had some personal stake in the matter. The allegation of coercion made by the appellant cannot, therefore, be taken lightly particularly when the appellant sought to proceed on LPR with effect from 1-10-1990 vide his application dated 28-9-1990 i.e. Only 9 days after the requisite transfer order was issued.
12. The learned District Attorney laid great stress on the point that original application, dated 23-10- 1990 containing request of the appellant for withdrawal of his application for LPR was not genuine one as no such application was available in the record of the respondent's office and that the LPR was notified by respondent No. 2 on 3-11-1990 when the appellant had not till that time, made any request for withdrawal of his application for LPR. It is true that the copy of the requisite application, dated 23-10-1990 does not show the signatures of the recipients and this fad lends some strength to the contention of the learned District Attorney. However, as I have glanced through the relevant File No. E-II-6-7/91 of the Forest Department, yet another application of the appellant, dated Nil (diarised in the office of respondent No. 1 on 9-4-1991 is available). This application was submitted by the appellant well before the actual date of retirement i.e. 30-9-1991 although after the period of LPR had commenced/notified. In this application, the appellant referred to two cases of disciplinary action initiated against him and expressed apprehension that the said enquiries might delay finalisation of his pension case with the result that if he retired from service, members of his family would be subjected to great financial crisis. Consequently, he clearly made a request that till the finalisation of those cases, the decision whereby his LPR had been notified should be withdrawn.
The factum of existence of the requisite enquiry proceedings was duly verified by respondent No. 1 through correspondence at pages 90 to 100 of the aforesaid file. However, respondent No. 1 took the view that the LPR had been g-ranted to the appellant on his own request and could not, therefore, be cancelled under the rules.
13. There is no denying the fact that the appellant had exercised his option for retirement after having rendered 29 years service at a time when he was under the coercive effect of his transfer with reference to certain directions of the Federal Minister whom the appellant had annoyed in the course of his official duties. There is, therefore, enough force in the argument that after some time say after about a month or so, the appellant might well have reconsidered his decision to proceed on retirement. The application, dated 23-10-1990 might not have been passed on by the DFO, Sialkot to the Conservator of Forests in view of the atmosphere in which the respondent officers might not have been able to pick up courage to retrace their steps to consider and to eventually allow withdrawal of request of the appellant for LPR. Even if the application, dated 23-10-1990 is not taken into account, the record of Forest Department itself shows that the appellant, in any case, made a request for the cancellation of his LPR vide his subsequent application, dated 7/9-4-1991 well before the actual date of his retirement from service Le. 30-9-1991 although after the commencement of LPR with effect from 1-10-1990.
14. The learned District Attorney had also referred to Finance Department's circular letter, dated -6- 7-1981 (Annexure `G') to contend that the appellant could not have legally withdrawn his request for LPR. The text of the said letter is produced below for facility of discussion: -- "I am directed to say that in terms of para. 8 of FD's Circular Letter No.FD-SR-V-257/67, dated 27th April, 1967 a written intimation once submitted by a Government servant who intends to retire after rendering 25 years service qualifying for pension, shall be final and shall not be allowed to be modified or withdrawn.
The matter has been examined further in consultation with the Federal Government and it has been decided that in partial modification of the existing rules/orders, if a Government servant withdraws his application for voluntary retirement or modifies the date of such retirement before its acceptance by the competent authority, the application or the date of retirement shall be deemed to have been withdrawn or modified as the case may be.
I am to request that this position may kindly be brought to the notice of all concerned."
15. It would be observed that under the earlier instructions circulated by Finance Department on 27-4-1967, a written intimation by a Government servant to proceed on retirement after 25 years service qualifying for pension used to be final and could not be allowed to be modified or withdrawn. However, under the instructions circulated on 6-7-1981, reproduced above, Government had decided that if a Government servant withdrew his application for voluntary retirement or modified the date of such retirement, before its acceptance by the competent Authority, the application or the date of retirement would be deemed to have been withdrawn or modified as the case may be. In this case, the appellant contends that he had sought withdrawal of his request for proceeding on retirement on 23-10-1990. It is also established from the record of the Forest Department that subsequently as well, the appellant had sought to modify the date of his retirement with reference to the existence of two cases of enquiries against him. The spirit of the said instructions appears to be in contrast with the view taken previously, and from 1981 onward, the basic principle would be that request for proceeding on LPR or retirement from a given date could be withdrawn or modified by the retiring official at his option/discretion, of course before its acceptance and that such a request would have to be honoured by the competent authority. It is clear that the request for LPR was made by the appellant under the fear of victimization. Even if it is assumed that the request for withdrawal of LPR, dated 23-10-1990 never reached the competent authority, the act of the respondent No.2 as regards issue of order allowing the appellant to proceed on LPR cannot be upheld as the request on which it was passed had not been made in exercise of free will on the part of the appellant.
16. In this case, the request for withdrawal of application for retirement made a second time i.e. 9- 4-1991 was also well before the- actual date of retirement of the appellant. This Tribunal has already held in its judgment case No.320/243/83 (reported as 1984 PLC (C.S.) 1191) "Raft Ullah v. DFO, Gujrat etc." that the said appellant was competent to withdraw his earlier prayer and would continue in service. In that case the appellant had made request for withdrawal of his application for the retirement only 7 days before the actual date of retirement from service.
17. The judgment of the Punjab Service Tribunal in the aforesaid appeal was challenged by respondent-department in Civil Appeal No.698/88, and, in their judgment, the learned Supreme Court observed as under: -- "Learned counsel for the appellants has submitted that the respondent was not entitled to withdraw his application for leave preparatory to retirement which was accepted. He relied upon a judgment titled "Secretary, Government of Punjab v. Shamoon Bahadar (PLD 1979 SC 835).
Learned counsel for the respondent has submitted that in the case quoted by the learned counsel for the appellants, the departmental authority had not permitted to withdraw the application for leave preparatory to retirement after its acceptance. In the case in hand, the authority who granted the application of the respondent had allowed him to withdraw the same in the first instance.
After hearing learned counsel for the parties, we find that this is not a fit case for exercise of jurisdiction under Article 185 of the Constitution. The appeal is, therefore, dismissed."
18. It would be observed that whereas the Supreme Court had in their judgment "Secretary to Government of the Punjab v. Shamoon Bahadar PLD 1979 SC 835 taken the view that the respondents i.e. The retiring official was not entitled to withdraw his application for LPR which had been accepted, in Civil Appeal No.698/88, "Forest Department v. Rafi Ullah", the learned Supreme Court observed that the Authority who granted the application of the respondent had allowed him to withdraw the same in the first instance. It was on this point that the Supreme Court did not find it a fit case for exercise of jurisdiction under Article 185 of the Constitution of Islamic Republic of Pakistan and the appeal of the Forest Department in that case was dismissed.
19. In the instant case, the competent authority did not allow the official to withdraw the request for LPR. If this were the sole premise, it would only be appropriate to follow the view taken by the learned Supreme Court in the case reported vide PLD 1979 SC 835, referred to above. That would imply rejection of this appeal. However, an additional factor has entered the arena, which tends to demolish the whole edifice built by the respondent-department. The fact remains that the request for proceeding on LPR had virtually been extracted from the appellant under coercion.
20. There is no force in learned District Attorney's argument that the second application for withdrawal of request for retirement had been addressed to the Secretary, Forestry, Wildlife and Fisheries Department and not to the Chief Conservator of Forests (i.e. The next higher authority) against the order of retirement passed by the Conservator of Forests. The appellant made the representation to the Administrative Secretary and it was indeed for him to have passed on the representation to the proper quarters. The onus for this, if any, should, therefore, be nailed to the door of the mighty rather than the appellant who indeed appears as an oppressed person in this whole episode. I do not, therefore, give any credence to the arguments advanced by the learned District Attorney on this point.
21. In view of this additional factor in the instant case, I am of the considered view that it would be in the interest of justice if the relief is granted in this case and the impugned orders be straightaway set aside. The appeal is accordingly accepted. That being so, the period of LPR from 1-10-1990 right up to the date the appellant resumes charge of his post shall be treated as having been spent on duty as it has been established beyond any shadow of doubt that he had been given marching orders with mala fide intentions.