1. ABDUL MAJEED KHANZADA (CHAIRMAN).---The appellant, through this service appeal has challenged the propriety and validity of impugned Resolution of Governing Body, dated 13-4-1993 followed by. Order bearing No, SS-ADMN-1 (71)/66-2556, dated 28th April, 1993, issued by the Director for Commissioner viz. respondent No,2, whereunder, in accordance with the decision of the Governing Body taken in its 38th meeting held on 13-4-1983, two advance increments granted to Mr. Ziaur Rehman Khan Naghar, Deputy Director vide Office Order No,SS-ADMN- (71)/66-7542, dated 28th April, 1976 are hereby withdrawn with retrospective effect. The excess amount so far drawn by Mr. Ziaur Rehman Khan Naghar, Deputy Director on this account should be recovered accordingly. The appellant challenged this impugned order in Suit No, 1719 of 1983 before the then IInd Senior Civil Judge and Additional District and Sessions Judge, Karachi, which was pending for decision, when the Sindh Service Tribunals (Amendment) Act, 1994 was passed by the Provincial Assembly and published in Sindh Government Gazette, datc.l January, 1995--which consequently abated the aforesaid suit. Hence, this service appeal was filed before Sindh Service Tribunal on 13- 4-1995, subsequently amended on 3-7-1995.
2. The facts of this case briefly stated are:-- The appellant was issued show-cause notice bearing No, SS-Admn-I (71)/66-12292, dated 29th May, 1982 wherein it was charged that the then Minister/Chairman, Governing Body SESSI, sanctioned two advance increments to the appellant vide his letter dated 23-12-1975 (inadvertently typed as 23-12-1985. On U.O. dated 2-1-1976, from the then Secretary (Labour Government of Sindh), it was modified changed into Honoraria equal to one (1) month pay vide No, SS-Admn-37/76/5834 of 9-2-1976. The then Minister/Chairman vide letter dated 8-4-1976 addressed to the then Commissioner, again ordered the grant of advance increments to the appellant and he in collaboration with the then Director, (Adam.) got two (2) advance increments sanctioned to himself by concealment of grant of honoraria earlier to him.
3. This show-cause notice was replied vide letter dated 10-6-1992 followed by Suit No,1719 of 1983 later converted into Suit No, 469 of 1986 that was abated due to the Sindh Service Tribunals (Amendment)- Act of1995. Hence this service appeal. The main contentions of the counsel for appellant are:-- The entire allegation against the appellant is that he concealed the fact of grant of honuraria equal to one month's salary during the preceding of grant /sanction of two advance increments whereas under S.E.S.S.I. Rules, there is no bar that a second award cannot be given to an official.
4. According to him, the case of appellant was identical to that of one Moin Qureshi - who in similar way was given both the benefits of honoraria and advance increments, faced similar disciplinary action - but in whose case the Governing Body of S.E.S.S.I. was pleased to withdraw the recovery orders/drop the disciplinary proceedings. He, therefore, argued that the impugned order in respect of appellant, was discriminatory and showed bias of the respondents against the appellant and, thus, liable to be set aside.
5. He further argued that the matter was referred to the then Commissioner, S.E.S.S.I. Mr. Abdul Salam Khan, who recently retired as Senior Member (B.C.R.) Sindh and whose integrity/competence was well known in Government of Sindh whose comments were:-- "I hive yet to see a hard working officer like him. He is an asset to Social Security. He really deserves accelerated promotion. I admire his qualities of devotion to duties, sense of responsibility and loyalty to, the cause of Institution. He is the only officer in S.E.S.S.I. who works from dawn to dusk without grumbling and for days together. He is extra ordinarily punctual in attending office. He can independently handle his job quite effectively and efficiently. He is an honest and conscientious worker."
6. His further contention, was that there was no element of concealment of facts because the orders of grant of honoraria and two advance increments were given effect after the endorsement of the Audit Officer concerned. It also proved conclusively that there was nothing wrong with these orders which were not objected to in pre or post audit.
7. He lastly conceded that the appeal of the appellant is under section 6 of the Sindh Service Tribunals Act, 1973 and not under section 4, as typed inadvertently, therein.
8. Reliance was placed in support of his arguments on PLD 1969 SC page 407 that once vested rights have been created and actually enjoyed these cannot be withdrawn, subsequently.
9. Mr. Khalid Habibullah, Counsel for the respondents first described the history of the case. The then Minister, in his note dated 23-12-1975 addressed to the then Commissioner, S.E.S.S.I. sanctioned two advance increments to the appellant and desired issuance of formal orders, who submitted a detailed note on 2nd January, 1976, wherein in para. 2, with reference to the orders of the Minister regarding the sanction of two advance increments to the appellant were modified with the approval of the Minister to grant to honoraria, equal to one month's basic pay on 3-1-1976. On change in Commissionership, the matter was reopened/reput up without mentioning of earlier grant of honoraria, in lieu of two advance increments. The case of Mr. Moin Qureshi according to him was different because, on appeal against the withdrawal of advance increments, sanctioned to him, the Governing Body was pleased to restore the same. He also submitted 'that grant of honoraria/advance increments were not one of the terms and conditions of service, hence the appeal was outside the jurisdiction of Sindh Service Tribunal. Technically also, the appellant had not exhausted the departmental remedy because the appeal against the orders of Governing Body lies before the Chairman, S.E.S.S.I. - but appellant did not file any departmental appeal before the Chairman, S.E.S.S.I. He also argued that if the very basis for the order is illegal then the principles of locus penitential are not applicable. Reliance in this connection is placed on PLD 1992 SC 207..
10. However, he conceded that recovery from the appellant cannot be effected in view of the above citation.
11. Mr. Manzoor Ali Khan, counsel for the appellant in reply submitted that in view of section 3-F of the Sindh Service Tribunal (Amendment) Act, 1994, i,e, abatement from a Civil Court, it was not necessary to file departmental appeal to the Chairman, S.E.S.S.I.
12. We have gone through the arguments of both the sides carefully. It is graciously conceded by the counsel of the respondents that recovery can't be effected from the appellant, in view of the judgment of the Hon. Supreme Court of Pakistan as recorded in PLD 1992 (SC) 207. This view is further strengthened from the provisions of Limitation Act, where under recovery proceedings, if not initiated within a period of 3 years, are time-barred non-enforceable at law. The advance increments (2) to appellate were sanctioned in 1976 vide No, SS-Admn-I (71)/66-7542, dated 24-4- 1976, therefore, the decision of the Governing Body to recover the same, in its 38th meeting held on 13-4-1983 (7 years after) communicated vide No, SS-Admn-I (71)/662556, dated 28-4-1983 are non-enforceable at law - being time-barred.
13. We also feel that the case of Mr. Moin Qureshi was identical to that of appellant, and thus, the orders of the Governing Body of S.E.S.S.I. to restore 2 advance increments earlier withdrawn - should have been applied to the case of the appellant, on the basis of fair play, equity and quality. Thus, the impugned order in case of the appellant was discriminatory and cultured to say the least.
14. Hence, the impugned order is set aside, with no orders as to the cost.
15. Given under our hands and the seal of this Tribunal this 13th day of April, 1998 at Karachi.