' FAQIR MUHAMMAD KHOKHAR, J.---This appeal, by leave of the Court, is directed against judgment dated 10-12-2001 passed by the Federal Service Tribunal, Islamabad (hereinafter referred to as the Tribunal) in Appeal No,285(P)/CS of 2000.
2. The respondent No,2, (Chairman, WAPDA) constituted a Committee to hold a fact-finding inquiry into the cases of issuance of bogus N.O.Cs. To private power producers and other related malpractices in WAPDA. The Inquiry Committee submitted its report, inter alia, with regard to N.O.C.
Issued to Messrs Kohinoor Generteck Limited (K.G.L.) as under:-- "N.O.C. Granted by two G.M.(0)s to K.G.L. Having same dispatch No,, same subject date but different contents was not noticed either by the office of Area Board or by G.M.(0)s office. An item "Surrounding Mills" was added in the N.O.C. Granted by Mr. Abdullah Jan which was not existing in N.O.C. Issued by Mr. Ghulam Farid, G.M.(0). The former N.O.C's copy was diarized by CAEB office on 13-7-1995 and the later on 19-7-1995 which clearly shows the 2nd N.O.C. Was signed after few days but dispatch No, and date of the original letter was typed and was written in very narrow space available in dispatch register.
' Some bargain was made between the management of the K.G.L. And senior officer in the office of G.M.(0) dealing with N.O.C's. They fraudulently succeeded in getting the letter signed from Mr. Abdullah Jan: G.M.(0).
' I have observed that G.M.(0) office, regarding issuance of N.O.Cs. Was not properly scrutinizing the cases. Those were improper, non-systematic and detrimental to the interest of department.
' X X X X X XX X X X XX X X X ' CONCLUSION
(1) Ch. Ghulam Farid, Ex-G.M.(0) has shown favoritism to Messrs K.G.L., by issuance of N.O.C. To Messrs K.G.L. On the same day, when he was handing over the charge of G.M.(0) to Mr. Abdullah Jan on his promotion.
(2) It is fact that Mr. Abdul Wali Khan, Ex-C.E.(H.Q.) deliberately did not mention in his note and draft that Surrounding Mills N.O.C. Cannot be granted. After that he succeeded in getting the second subsequent N.O.C. Issued through Mr. Abdullah Jan, Ex-G.M.(0) which has caused great complications and financial loss to the department.
(3) Mr. Abdullah Jan, Ex-G.M.(0) showed negligence to take timely and appropriate action by lodging F.I.R. And other legal action. Instead, he only issued clarification letter which provided a chance to obtain stay order by Messrs K.G.L. From High Court."
3. The Chairman, WAPDA, issued a letter of explanation to the appellant who replied the same. He was also afforded an opportunity of personal hearing by the Chairman. A show-cause notice dated 6/8-5-2000, for his dismissal from service, was issued. After receiving his reply thereto, the Chairman personally heard the appellant on 26-6-2000. The appellant was awarded penalty of compulsory retirement from service, under rule 4(1)(b)(ii) of the Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978 (hereinafter referred to as the E&D Rules) vide office order dated 30-6-2000. He preferred an Appeal No,285(P)CS of 2000, before the Tribunal, which was accepted, by the impugned judgment dated 10-12-2001. However, the Tribunal further observed that there would be no bar on WAPDA to proceed against the appellant afresh in any manner in accordance with law and rules. He stood retired from service on 20-9-2000 on attaining the age of superannuation in view of his own letter dated 27-2-2000 and Matriculation Certificate showing his date of birth as 21-9-1940. Thereafter, the Chairman, WAPDA issued a charge-sheet dated 9/15-2- 2002 alongwith statement of allegations against him. It was indicated therein that if the allegations were established, the appellant would render himself liable to one or more of the major or minor penalties as enumerated in rule 4 of the E&D Rules. Hence this appeal by the appellant, by leave of the Court, against the impugned judgment dated 10-12-2001 of the Tribunal only to the extent of grant of permission to WAPDA to proceed against him afresh.
4. The learned counsel for the appellant argued that once the appellant stood retired from service on attaining the age of superannuation on 20-9-2000, no disciplinary proceedings could be initiated or carried on against him under the E&D Rules or the Pakistan Water and Power Development Authority Pension Rules, 1977 (hereinafter referred to as the Pension Rules). In support of his submission, the learned counsel made a particular reference to Note No,2 of rule 7 of the Pension Rules and circular letter dated 16-2-1981 issued by Pakistan WAPDA whereby the Pension Rules were amended in terms of, Article 417-A of the Civil Service Regulations as notified by the Government of Pakistan vide S.R.O.(ii)/80.
5. On the other hand, the learned counsel for the respondents argued that the Chairman, WAPDA had already issued a charge-sheet dated 9/15-2-2002 against the appellant to take disciplinary proceedings under the E&D Rules read with Pension Rules to which no exception could be taken.
The learned counsel further submitted that the impugned judgment of the Tribunal granting permission for departmental proceedings against the appellant did not call for any interference by this Court.
6. We have heard the learned counsel for the parties at length. The question of taking a disciplinary action against a retired civil servant came up for consideration before superior Courts in some cases. In Deputy Director Food and 2 others v. Akhter Ali Foodgrains Inspector 1997 SCMR 343, it was left open as the respondent had actually not attained the age of superannuation. In Rt. Rangachari v. The Secretary of State AIR 1937 PC 27, a Sub-Inspector of Police was granted an invalid pension by the competent authority. His case was re-considered and he was removed from service. The Privy Council took the view that the order of his removal from service was a nullity as he had already ceased to be in service. In another case of Province of Punjab v. Khan Khaliq Dad Khan PLD 1953 Lahore 295 a member of Provincial Civil Service was dismissed from service after he had reached the age of superannuation and was no longer in service of the Government. It was held by a Division Bench of the High Court of Judicature at Lahore that it was only the Legislature that could give retrospective effect to what was ordained. The Government had only power to dismiss and a power to dismiss did not imply a power to say that a dismissal would be deemed to have taken place on such and such date. In Muhammad Ehsan v. The Secretary, Corporation of the City of Lahore PLD 1957 Lahore 119 a Sub-Inspector, Octroi, in the service of Corporation of the City of Lahore was dismissed from service after the date on which he had retired at the age of superannuation. The dismissal was on the basis of certain inquiry held in regard to the Sub- Inspector on alleged faulty assessm ent of taxes. A Division Bench of the erstwhile West Pakistan High Court took the view that the Corporation was not entitled to dismiss him after he had retired from his service. In the case of B.J Shelat v. State of Gujarat and others AIR 1978 SC 1109, the disciplinary proceedings were initiated against a Magistrate who was suspended from service. He reached the age of retirement before the same could be finalized. The Supreme Court of India held that the Government had no jurisdiction to take disciplinary action against a Government servant who had effectively retired and the question as to whether the punishing authority had sufficient grounds for dismissing him did not arise in such a case.
7. We find that the appellant had himself intimated his date of birth as 21-9-1940 and also produced his original Matriculation Certificate in support thereof. Therefore, he stood retired from service on 20-9-2000 for all intents and purposes. A show-cause notice dated 6/8-5-2000 issued by the Chairman, WAPDA to the appellant was only for the award of penalty of dismissal from service under rule 4(1)(b)(iv) of the E&D Rules, 1978. After taking necessary proceedings by the competent authority, under the E&D Rules, only one major penalty of compulsory retirement from service was considered as sufficient in the case of the appellant. The learned counsel for the respondents was unable to satisfy us as to how, by an administrative order, anyone or more of the departmental penalties as prescribed by rule 4 of the E&D Rules could be imposed upon the appellant with retrospective effect. Even the E&D Rules do not provide that, after his retirement from service, a WAPDA employee can be proceeded against. The provisions of Article 471-A of Civil Service Regulations, as adopted by WAPDA, are also to the similar effect. We, therefore, hold that as a general rule, disciplinary proceedings cannot be taken against a civil servant for imposition of a major or a minor penalty as contemplated by the E&D Rules after he has B already retired from service on attaining the age of superannuation. In the facts and circumstances of the present case, there was no justification to take disciplinary proceedings de novo against the appellant, under the E&D Rules, by issuing him a charge-sheet dated 15/22-2-2002 for imposition of a major or a minor penalty. However, the question of taking action against a retired civil servant for withholding or otherwise, of pensionary benefits or recovery there from will be examined in some appropriate case.
8. For the foregoing reasons, this appeal is allowed and the impugned judgment of the Tribunal to the extent of granting permission to WAPDA to take fresh disciplinary proceedings against the appellant is set aside. There shall be no order as to costs.