1. CH. IJAZ AHMAD, J.- The brief facts out of which the present writ petition arises are that the petitioner was appointed as Secondary School Teacher by the respondents on 1.5.1963 and thereafter petitioner was promoted as District Education Officer gradually in accordance with the'- rules and Regulations of the respondents. 'Petitioner was retired from service by the respondents vide notification dated 18.5.1999 with effect from 11.12.1998. The petitioner was posted as Deputy District Education Officer -Lahore Can by the competent authority in the year, 1987 and audit objection was -drafted by; the Audit officer regarding illegal/fraudulent drawl of salary on the basis of bogus appointment of P.T.C. Teachers in Tehsil Lahore Cantt, consequently causing loss to the respondents approximately Rs.15,18,360/-. The respondents constituted a Committee in view of the audit objection consisting of Director Public Instructions (Schools) Punjab Lahore and two others namely Zahoor Ahmad Khan, A.E.O (M) Lahore Cantt. And Muhammad Bashir Kathana, A.E.O (M)
2. Lahore Cantt. The authorised officer declared that the charges had not been proved against the petitioner and two others who recommended exoneration of the charges levelled against them.
3. The Competent Authority/Secretary Education exonerated all the three officers including the petitioner vide order dated 16.2.1994. Thereafter respondents again proceeded against the petitioner on the same allegations and petitioner was suspended by the competent authority by the following orders:-- 26.11.1997.
4. 30.12.1997.
5. 16.2.1998.
6. The Criminal case was also registered against the petitioner and others vide F.I.R. No. 23/98 on 19.3.1998 under Sections 420, 467, 468, 471, 409, 109, 218, PPC read with Section 5(2) of Prevention of Corruption Act, 1947 at Directorate of Anti-Corruption Establishment Punjab on the complaint of Mr. Manzoor Ahmad, Deputy Director (EE) Lahore Division, Lahore.
2. The learned counsel of the petitioner submits that F.I.R. Was registered against the petitioner by the Anti-Corruption Department without preliminary inquiry. He further submits that complaint was not in possession of relevant record on the basis of which he got the case registered age inst the petitioner as is' evident from the letter dated 16.11.19 98 sent by the complainant to the Secretary Education Government of the Punjab as is evident from Annexure G'. He further submits that Anti- Corruption Judge granted the bail to the petitioner on the ground that petitioner was exonerated by the respondents vide order dated 16.9.1994. He further submits that action of the respondents is discriminatory and is hit by Article 25 of the Constitution as the petitioner was kept under suspension by the respondents from 26.11.1997 to 11.11.1998. He further submits that respondents had no authority to initiate proceedings against the petitioner on the same allegation as is evident from the original audit objection attached with the writ petition as Annexure ' A' therefore, respondents had no authority to initiate proceedings-on another audit objection qua the same amount which was mentioned , in Annexures 'A' Rs. 15,18,360/- for the years 1992-93. He further submits that action of the respondents is without lawful authority as the petitioner had already been exonerated by the competent authority, through x, the proceedings initiated by the respondents thereafter under Efficiency and Discipline Rules are not sustainable in the eyes of law. He further submits that the petitioner retired from service on 11.12.1998, therefore, respondents had no authority under the law to initiate proceedings against the petitioner under Efficiency and Discipline Rules.
3. The learned Addl. A.-G.. Submits that the competent authority appointed Secretary Education as authorised officer to proceed against the petitioner alongwith other eleven civil servants. The authorised officer appointed inquiry Committee under the rules consisting of following officers:--
(1) Dr. Abdul Qayyum Khan Lodhi, O.S.D. Education Department B.P.S. 20.
(2) Mr. Rehmat Ullah Soori, DPI (EE) Punjab, Punjab Lahore. (3) Rao Abdul Jabbar Abid Rao Director Headquarters (Admn.).
7. The meeting of the aforesaid Inquiry Committee was held on 10.2.1999 and it was unanimously decided by the Committee that petitioner and Mirza Muhammad Shafi had retired or is retiring on 14.9.1999 and requested the Government to allow them to issue revised charge sheet against them under the Pension Rules as is evident from Annexure 'R' attached with the parawise comments. The .Af oresaid Committee sent a letter with the aforesaid request to the authorised officer on 11.2.1999.
8. An objection was raised by the petitioner before the Committee in its meeting held by the Committee on 13.3.1999 on the competency of the inquiry vis-a-vis of the authorised officer due to the retirement of the petitioner and co-accused. The Inquiry Committee decided to approach Government for guidance in the matter. Respondent No. 8 wrote a letter to the authorised officer on 13.3.1999 to apprise the aforesaid objection raised by the petitioner and the other co-accused. The Government of the Punjab decided that petitioner. And other co-accused be proceeded under Rule. 1.8. Of the Pension Rules vide order dated 16.3,1999. The, competent authority issued revised charge sheet served upon the petitioner on 1.4.1998 which reveals that proceedings be treated under Rule 1.8. Of the Pension Rules, 1963, as is attached as Annexure R. 1 with the parawise comments. The petitioner also approached the Chief Secretary with the request, for stopping of inquiry proceedings as the same had been abated after his retirement, as is evident from Annex.
9. R/7. Muhammad Shafi his co-accused filed writ petition No. 1 102/93 before this Court by concealing the material facts from this Court. The writ petition filed by his co-accused was disposed of by this Court vide order dated 17.6.1999 in the following terms:- "In this view of the matter the Inquiry officer is directed to decide the legal objection of the petitioner before proceedings any further." The aforesaid objection was over-rule by the competent authority. The Inquiry Committee found the petitioner guilty as is evident from inquiry report Annexure R. 8.
4. I have given my anxious consideration to the contentions of the learned counsel of the parties and perused to record myself. The brief submission of the learned counsel in support of the writ petition was that after retirement a civil servant cannot be proceeded under Efficiency and Discipline rules, 1975, which respondents have taken up the plea that the Government is fully competent to initiate proceedings against retired Civil Servants within one year of his retirement. In this context reliance has been placed on Rule. 1.8 of the Pension Rules The same is reproduced hereunder:-- "1.8 (a) Good conduct is an implied condition of every kind of pension Government may 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 grave misconduct either during or after the completion of his service provided that before any order to this effect is issued the procedure regarding imposition of the penalty of removal from service shall be followed.
(b) Government reserves to themselves the right of recovery from the pension of Government pensioner on account of losses found in judicial or departmental proceedings to have been caused to government by the negligence or fraud of such Government pensioner during his service provided that such departmental proceedings shall not be instituted after more than a year from the date of retirement of the Government pensioner. .
(c) In case the amount of pension granted to a Government servants be afterwards found to be in excess of that to which he is entitled under the rules, he shall be called upon to refund such excess."
10. I have considered the arguments of the learned counsel in the light of the provisions of the law, rules and record. I find that a civil servant on the eve of retirement ceases to be civil servant for the purpose of Efficiency and. Discipline Rules, 1975. I am fortified by the definition of the Civil Servant as is envisaged in Section 2(b) of the Punjab Civil Servants Act, 1974. In ready reference the same is reproduced hereunder:-- "2.(b) "Civil Servant" means a person who is a member of a civil service of the Province or who holds a civil post in connection with the affairs of the Province."
11. The legislature seems to have intentionally enacted this definition.. This view is further supported by rule 1.9 of the Pension rules. The Rule is exhaustive because in this rule not only the grounds of action have been enumerated but the penalties liable be imposed have also been enlisted.
12. However, the procedure regarding the imposition of penalty of removal is to be observed in the proceedings under this rule. The very word "Retire' means that one has given up the position or the status. According to the Black's Law Dictionary Retire' means to terminate employment or service upon reaching retirement age. I am of the considered view that civil servant after his retirement is not amenable to disciplinary proceedings. Under the Efficiency and Discipline Rules. He can only be proceeded in terms of Rule 1.8 of the Pension Rules. It is pertinent to mention here that the respondents had not taken any action against the petitioner under Efficiency and Discipline Rules Although the proceedings initially were initiated against the petitioner under Efficiency and Discipline Rules and after the retirement of the petitioner the proceedings were converted under the Pension Rules as is evident from the report and parawise comments. The Inquiry Committee has found the petitioner guilty in the inquiry report. It is pertinent to mention that. Pension is part and parcel of terms and .Conditions. As is evident from Section 18 of the Punjab Civil Servants Act, 1974, The petitioner has alternate remedy before the Service Tribunal as is evident from Section 2(b) of the Punjab Service Tribunal Act, 1974, The Legislature has specifically mentioned the word "has been" which includes the person who has been retired from the service who is well w shin his right to agitate the matter before the Service Tribunal. In ar lying to this conclusion I am fortified by the following judgments:- 1983 PLC (CS) 795.
13. Hussars Bakhsh Khan's case.
14. 1983 PLC (CS) 832.
15. Samee-ur-Rehman's case.
16. 1983 PLC (CS) 956.
17. Muhammad Ramzan's case. 1985 PLC (CS) 907.
18. Muhammad Sharif's case The other contention of the learned counsel of the petitioner that FIR was lodged against the petitioner without holding preliminary inquiry has no force as per principle laid down by the Hon'ble Supreme Court in Brig; Imtiaz's case 1994 SCMR 2142. Reference can also be made by the following judgments:- 1981 SCMR 1101. M. Abdul Latif's case 1998 P.Cr.L.J. 828. Muhammad Ramzan's case.
19. It is also settled proposition of law that this Court has no jurisdiction to quash the F.I.R. As pr principle laid down by the. Privy Council and the Hon'ble Supreme Court in following judgments:-- A.I.R . 1945 P.C. 18.
20. Khawaja Nazir Ahmad's case.
21. PLD 1971 S. C. 677. Shehnaz Begum's case.
22. The third contention of the learned counsel of the petitioner has, also no force that respondents , have no authority to initiate proceedings against the petitioner in view of exoneration order dated 16.9.1994. The principle laid down in Article 13 of the Constitution is not attracted in the present case.
23. In arriving the this conclusion I am fortified by the following judgments: PLD 1978 S.C. 121.
24. Syed Alamdar Hussain Shah's case.
25. PLD 1981 S.C. 642.
26. Muhammad Abbas's case PLD 1990 Karachi 286.
27. The word' shallbe prosecuted' mentioned in Article 13(a) refers to initiation of proceedings of a criminal nature before a Court of law or Judicial Tribunal in accordance with the Procedure prescribed in the Statute which creates the offence and regulates the procedure. The proceedings initiated by the respondents under the Efficiency and Discipline Rules did not constitute a judgment or order of a Court or Judicial Tribunal necessary for the purpose of supporting a plea of double punishment. The learned counsel of the petitioner failed to point out that respondents initiated proceedings against the petitioner in violation of Rules and Regulations of the respondents, therefore, writ petition is not maintainable in view of the law laid down by the Hon'ble Supreme.
28. Court in All Mir's case 1994 SCMR 433. It is settled proposition of law that he who seeks equity must come with clean hands. In this view of the matter I am not inclined to exercise my discretion in favour of the petitioner as per principle laid down by the Hon'ble Supreme Court in Nawabzada.
29. Raunak All Khan's case PLD 1973 S.C. 236.