Abdul Lateef (Petitioner) VS Services General Administration & Ors (Respondent)

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\ t tSue-p Fr"{^\i kc, C-..i,f. t^srr*.^L J *+ I-e-rfd +1 "1rt 3o r Constltutlon Fotltlon No. D4484 of I0I3

Abdul Letlf

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The Stste

IJIqrl{ COURT QIi $lNnlJ t- Conrytq.rillq,r.,rtillench,, ,,,- D/lL

Mr, Justlce Mohammad Karim Khan Agha Mr. Justice Adnan l(arlm Memon

Dates of hearing : I8-12-20?4

Decided on :26 -12-2A24

(a)Judgment approvcd for Reporting ru

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CE TIFIC TE.

I Certified that rhe judgrnent +/Order is based upon or enuneiates a principle of law */decides a qucstion of law which is of first impressiolr/distinguishes/. Over-ru[es/ reverses/explains a previous decision.

* $trike out whichever is not applicsble,

NOTE: - (i) This slip is orrly to be used when $ome action is to be taken.

(ii)If the slip is used, the Reader must attaeh it to the top of the firtt page of the judgtnent.

(iii)Reader must ask the Judge writing the Judgment whether the Judgment is approved for reporting,

(iv)Those directions wfuich are not to be used should be E Camscanner

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II{ TI{E HIGH COURT OF SINDH ATI(ARA CHI

Lt\ t trt Constittrtional Petition No. D--- of Z0Z3 t

Abclul Lateef S/ o Abdr-rl Aztz Mr-rslim, Adult, resident of Flat No C-4, on Plot No. FL-I6/LT, Safari Terr" acie/ 4 I(arachi, Petitioner

VERSUS

1.Services, G ener al Aclrninistration & Co-orclination De partment Province of irrdh Tlu'or"rgh its I{av at Sindh Secretar.iat t I(alac l

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2.-frovince of S indh Through its Chief Secretarlr Covemrlrel1t of Sinclh llarring office at Sirrcth secretariat I(arachi. i

3.Finance Department 'l'hlough its Secretary Covernment of Sirrclh A.l( Loclhi Block Finance Cornplex, Nernr Sindh secr.etariat No. 6, I(amal-A t ta-f urk Rclacl l(irrachi, r

4.Iloard of Revenue i

T'hlor-rgh its Senior Menrber Governmerrt of Sindh, Shahlah-e-l( amal Ataturk, l Near Pass;ro rt office, Sar1t1ar, I(alachi.

5.Accountant' General Sinclh Flaving office at Unirrersity Roacl, Near Nipa Chowrangi, i l(arachi. IR.e.sporrdent-s I

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IN THE HIGH COURT OF SINDH AT KARACHI

Present:

Mn ,Iustice Mohammod Karim Khnn Agha r. Mr. fusfice Adnntt-ul-Korint Memon

Const. Petition No. D-4484.of 2023

Petitioner: Abdul Latif s/o Abdul Aziz through Mr. Raj Ali Wahid Kunwar, Advocate

Respondent: The State through Mr. Ali Safdar Depar, Assistant Advocate General, Sindh

Date of Hearing: 18.t2.2024

Date of Announcement: 26.12.2024

ORDER

fuIuhantmsd Karim Khan Aghq,[. Through the instant petition the petitioner has

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challenged the impugned letter dated 08.09.2023 whereby he was called for a personal hearing in disciplinary matter.

l. The brief facts of the case are that the petitioner is an Ex-PCS Officer of BPS-17 of the Revenue Department, Government of Sindh and at-the time of retirement he was serving as Section Officer, Home Department, The petitioner's name according to the petitioner was put in a Nationali Rccountability Bureau CNAB) Reference No.15 of 2017 and NAB Reference23 of 2017 on the fake and lraseless accusations. Thereafter Departmental proceedings were initiated against the petitioner. According to the petitioner the Accountability Court has not passed any adverse order/judgment against him. The petitionerion attaining the age of superannuation i.e. 60 years retired from service on 21.08.2An but the respondents with malafide intention and having ill will withheld all the emoluments of the petitioner including pensionary*benefits, Gratuity, G.P. Fund,

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Leave Encashment due to the pending Departmental proceedings against him. I{ence petitioner has approached before this Court for redressal of his grievance. i 2- Learned counsel for the petitioner has contended that simply because departmental disciplinary proceedings were pending against him the Respondent had no right to withhold his pensionary benefits on his superannuation and prayed that the impugned letter concerning his inquiry be set aside as being unlawful and he be paid his full pensionary benefits fi'om the clate of his superannuation which he was entitled to under the law. In suppofi of his contentions lre placecl reliance of the cases of Mrs. Riffat Sattar V. Government of the Punjab through Secretary and 6 others (2016 PLC (C.S.) 47?), orders datecl 08.09.2020f

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08.1 0.2020 and 27 )02020 passed try Divisional Bench of this Cor,rrt in C.P No.D-1014 of 2019 Abtlul Karim Dauclpota V. Trade Developrnent Authority of Pakistan and others, Haji Muhammad Ismail Memon, Advocate (PLD r. 2007 Supreme Court 35), judgment dated A6.02.2rJ19 passed by Divisional Bench of this Court in C.P No.D- ll79 of 2017, lrshad Ahmed V. Port Qasim Authority through Chairman and 2 othcrs (2019 PLC (C.S.) 557), Ahdul Hameed V. General Manager (Operation), Pakistan Railway Headquarter Officeo Lahore ,qnd another (2012 PLC (C.S.) 209), order dated 07.03 .2022 passed by Divisional Bench of this Court in C.P No. D-7A72 of 2018, Muhammad Zaheer Khan V. Government of Pakistan through Secretary, Establishment and others (2010 SCMR 1554), Ahdul Wali V. Wapda through its Chairman and others (2004 SCMR 678), Parveen Javaid V. Chairman Wapda and 5 others (2011 PLC (C.S.) 1527),Irfan Naseer Baig and another V. Province of Punjab through Secretary, S&GAD and 2 others (2011 PLC (C.1.) 1537), Roshan Dani and ll others V" Wapda through Chairman and 3 others (2015 PLC (C.S.) 263), Ghulam Nabi V. Federation of Pakistan t through Secretary Ministry of Finance, Islamabad and 5 others (2018 PLC (CiS.) Note 69).

3.On the other hand learned AAG contended that the impugned letter which in essence concerned departmental inquiry proceedings which had been initiated against the petitioner was lawfully passed as well as the consequences which followed namely the non payment of the petitioner's pensionary benefits after his superannuation.

4.We have heard learned counsel for the parties and perused the record and considered the case law cited at the bar.

5.As per the record vide notification dated 15,02.2013 issued by the Government of Sindh (GOS), Services, General Administration and Co-ordination Department the petitioner an officer of Ex PCS (BS 17), section officer of the home department on reaching the age of 60 attained the age of superannuation and stood retired from Goverrunent service w.e.f 21.08.2023. At the time of his t, superannuation the petitioner was fucing departmental disciplinary proceeding which commenced in 2017 and his personal hearing was fixed on 21.09.23 as per letter dated 08.09.2023 issued by COS, Services, General Administration and Co- ordination Department atler his superannuation.

6.The question therefore emerges whether the departmental disciplinary proceedings could continue after the superannuation of the petitiouer and whether on account of such proceedings the petitioners pensionary benefits could be withheld after his superannuation.

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1.It has long been hekl that a pension is not a bor,urty or an ex-gratia payment but a right acquired in consideratiorr of past services. lt was a vested right and a legitimate expectation of a retiring civil servant, the same being a right t conferred by law, could not be arbitrarily abridged or reduced except in accordance with law. In this respect, reliance is placed otr the case of Secreturyo Government of Punjab, Finance Department and 269 others V. M. Ismail Tayer and 269 others (2015 PLC (C.S.) 296).

8.The starling point in the instant case is FR 54A of Fundamental Rules l9ll.which is set out below for ease of reference;

FR 54A of Fundarnental Rules of Service 1922. If Goventment serv{tnl, who has been suspended pending inquiry inlo his conduct attains the age of superannuation before the completion of inquiry, the disciplinary proceedings against him shall abate and such Governmenl servant shall retire with .full pensionary benefits and the period of suspension shall be treuted us period

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spent on duty.

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9.The rule makes it absolutely clear that after the superannuation of the petitioner the disciplinary proceeding against him will abate. Since the petitioner has superannuated we find that the disciplinary proceedings against him have abated and as such the impugned letter is of no legal effect.

10.The rule also makes it absolutely clear that once the disciplinary proceedings agairrst the petitioner have abated (which we have found above in this case) the petitioner shall retire witli-Iull pensionary benefrts.

1 1. The same position was upheld by the Supreme Court in the case of Muhammed Zaheer Khan (Supra) in the following terms;

" I0. From the ptiln readitrg of the above Rule ffR 54A) it becomes abunduntty clear that what to tnlk of sendittg the cfise back to the departntent, even the pending disciplinary proceerlings against an officer abate if the latter attains the oge of superfirtnuation. The Rule entitles suclt officer to retire with fult pensionwy benefits nnd period of suspension r's I bounrl to be lreated fis period spent on duty. In the circumstfinces, the question of naw sending the matter back to 'the clepartittent .for holding tle*novo inquiry stands out o.f qttestion, It may be stated at this iuncture thut the appellant has stated at the Bar that he is not interested in claiming any hack 'beneJits and that he is nnly inlerested in getting the stigma removed. " (bold added)

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/ 12. Like wise iu the case of Shahid Ahmcd (Supra) it r,,v'as held as under:

" 9. Rule 54-A of Fundantentul Rules, 1922 sflJ,s tltut tf disciplinary actiorr tttns initiated ugainst civil servants and the a.

aclion remained inconclusive during coilrse of his service and lte retired on attaining the age of supernnnuation in the meanwhile, not only unconcluded actiott rttould abote but civil servant would also be entitled to full pensiott/pensionary beneJits, but here in this cose no inquiry was pentling u,hen the petitioner v)us in service ctrul the action hus been taken by the respondents' after his retirement and without hearing him.{bold added)

13.Again in the case of Parveen Javiad v Chairman WAPDA (201 I PLC (CS) it was held as under;

9.The main question that requires determinatiott is whether the respondents nre justilied in witltholding pensionury benefits of the husband of the petitioner despite the fact thot at the time of ltis retirement nnd mfiny yeflrs thereufter no disciplit nry proceedings had been finalized that mny hove I furnished some legal basis for the department to withhold his benefits. I have gone through the notiJication dated 17-4-1967 wlticlt provides that if there fire nny allegatiotts agninst un employee relating to misappropriation or otherwise, such proceedings must be initisted at least one yeilr before his retirement and finalized one yeilr thereufter. U s uch proceedings nre not firtrtlized within the uforesaid time, the right of the depurtnrenl to tuitltltold pensionnry benefits stands nbnted,

10.It is settled lsw that iln employee csnnol be pentlized for nny actiort wlrich is subject-matter of an inquiry whiclt was not completed before his retirentent, Reference in this regard may also be made to rule 54-A of the Fundamental Rules of Service whiclt provides that on uttuining the age of saperflnrtuntiorr disciplitrfiry proceedings rphich have not been completed, automstically abate and the civil servant is entitled to receive all pensionury benefits. In this regartl referenca m(ty useJiilly be mdde to the cfises of amntad Anwar B tl) dl 1'

Direclor. A gt' icultural Devel {)n ent Bunk of Pakistan, I -Faisal Avenue Zero Poin I .\' lantuhud I) (-'huirmun A orinttltttr al Develo tnenl R,trn o { Prtki tlrtm t'I sul Avenue

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Zero Poinl, Is'lamubocl [2001 PLC (C.5.) 336J, Bilqui,v N{tgis v. Secretary to Government of the Puniab, Educiltion Department (1983 PLC (C.5.) I I4I), Sved Ahclus Salq?r.Rctzmi v. Munaging Director WASA,-_Multan und another [2005 PLC (c.s.) 2441, I{aii Muhummatl Ismuil Mernon Advocute Contpluinttnt's case (PLD 2007 .SC JiJ und Muhammud Zuheer v skistan hro h Es{ablishment ancl others [2010 PLC (C.5.) 559J, in u,hich it hus been held thut the cli,sciplinilry proceedings ugainsl an employee mus'I be completed hefore hi,s dute of retirement. An

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{ entployee cilfittot be ltenulized for uny actiott trhich vct.s s,ultjec,l muller qf afi inquiry und u'ils not conrpletecl before his re menl. ReJbrence nxay also be ttsefully made to lvltthummucl 0 ec r.

[2010 PLC (C.5.) SS|J

14.based on the above discussion we set aside the impugned letter and hold that the subject inquiry against the petitioner as alluded to in the impugned letter has abated and that the petitioner is entitled to all pensionary benefits including pension, gratuity, GP fund, leave encashment w.e.f from the date of his superannuation which shall be paid to hiur by the Respondents within 6 nonths of the date of this order a copy of which shall be sent to the Chief Secrerary Government of Sindh for compliance.

15.The petition stands disposed of in the above terms.

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