Muhammad Akram Vs Province of Punjab etc

Stereo. H C J D A 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Writ Petition No. 44193 of 2022.

Muhammad Akram Vs. Province of Punjab & others

JUDGMENT

Date of hearing: 31.08.2026.

Petitioner by: Mr. Kashif Ali Chaudhry, Advocate.

Respondents by: Mr. Qamar Zaman Qureshi, Additional Advocate General.

SHIREEN IMRAN, J: Through this petition, petitioner has challenged order dated 24.06.2022 (impugned order) passed by the Divisional Forest Officer, Faisalabad Forest Division, Faisalabad (respondent No.4), whereby earlier order dated 30.06.2021, qua his retirement on medical grounds, with effect from 18.06.2021, alongwith encashment of 365 days in lieu of Leave Preparatory to Retirement (LPR), was withdrawn.

2.While assailing impugned order, dated 24.06.2022 passed by respondent No.4, learned counsel for the petitioner contended that the petitioner was initially retired from service on medical grounds vide order dated 30.06.2021, with effect from 18.06.2021, after having been declared medically incapacitated in Category “B”. It is submitted that pursuant to the said order, a vested and legitimate right had accrued in favour of the petitioner with regard to his retirement

benefits, including the benefit of LPR and encashment of 365 days’ leave in lieu thereof. Learned counsel further submits that order dated 30.06.2021 was valid and operative and had attained legal efficacy much prior to the subsequent clarification issued by the Finance Department, Government of the Punjab, dated 24.08.2021, after which department passed impugned order, dated 24.06.2022. According to learned counsel, once the petitioner had already been retired and the consequential benefits had accrued to him, same could not subsequently be withdrawn or nullified retrospectively, merely on the basis of a later clarification. It is further argued that the impugned order has been passed in clear violation of the principles of natural justice as before withdrawing the earlier retirement order, petitioner was neither issued any show cause notice nor afforded any opportunity of hearing. Learned counsel has also questioned the competence and authority of the department to pass the impugned order on the basis of recommendations allegedly made by the Finance Department. It is contended that the question relating to the mode and manner of petitioner’s retirement falls within the domain of the Services & General Administration Department (S&GAD) and that the Finance Department has no substantive role in determining whether the petitioner was liable to be retired on medical grounds or otherwise, which was duly proceeded. Learned counsel, thus submits that impugned order, dated 24.06.2022 is without lawful justification, contrary to the settled principles of natural justice and liable to be set aside, especially when no prior notice or opportunity of hearing was

afforded to the petitioner before taking any adverse action against him.

3.Conversely, learned Law Officer, while supporting the impugned order submits that the authority empowered to pass an order can also recall/withdraw the same, thus no exception can be taken to the impugned order, which has been passed on the basis of clarification dated 24.08.2021 issued by the Finance Department.

Further submits that the impugned order has caused no prejudice to the petitioner as only the nature of his retirement has been changed.

Adds that if the argument of learned counsel for the petitioner qua his retirement falls within the domain of S&GAD is accepted as correct, then S&GAD having not been impleaded as party, this petition is liable to be dismissed for non-joinder of necessary party.

4.Arguments heard. Record perused.

5.Admittedly, petitioner stood retired from government service w.e.f. 18.06.2021 vide order dated 30.06.2021 passed by respondent No.4 on medical grounds. Later on, the said order was withdrawn vide order dated 24.06.2022, about one year of passing of earlier order on the basis of clarification issued by the Finance Department dated 24.08.2021, which reads as under: -

“In order to discourage the tendency of getting declaration of incapacitated/invitation on the veige of retirement as a matter of routine the benefit in question may not be allowed beyond the date of when the LPR is rule.”

After passing of order dated 30.06.2021, reasonable rights accrued in favour of the petitioner, which cannot be withdrawn later on. There is no cavil with the fact that an authority having power to pass an order can also recall/withdraw the same but the same is subject to the condition that no decisive step has been taken. So far as the case in hand is concerned, after passing of order dated 30.06.2021, certain decisive steps, including appointment of son of the petitioner under Rule 17-A of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 were taken, consequently the rights accrued in favour of the petitioner cannot be withdrawn in view of the principle of locus poenitentiae. The basic judgment on the principle of locus poenitentiae has been rendered in the case of Pakistan, through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi (PLD 1969 SC 407), wherein the Hon’ble Supreme Court of Pakistan elaborated the scope of said principle as under: - “There can hardly be any dispute with the rule as laid down, in these cases that apart from the provisions of section 21 of the General Clauses Act, locus poenitentiae, i.e., the power of receding till a decisive step is taken, is available to the Government or the relevant authorities. In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights.”

6.Further, the aforesaid view was followed by the Hon’ble Supreme Court of Pakistan in the cases of Pakistan Railways through Chief Executive Officer/Senior General Manager, Lahore and another v. Muhammad Aslam (2024 SCMR 97) and Shams Ur Rehman v.

Military Accountant General, Rawalpindi and another (2020 SCMR 188). In the latter case, the Hon’ble Supreme Court of Pakistan has inter alia observed as under: -

“... The case would, thus, be governed by the principle of locus poenitentiae and, in our view, the Department cannot retrace the steps already taken and lawfully acted upon by the petitioner."

Foregoing the above discussion, after passing of order dated 30.06.2021, certain decisive steps were taken and valuable rights accrued including appointment of son of the petitioner, which cannot be taken back in view of the principle of locus poenitentiae.

7.Another important aspect of the matter is that whether the clarification of the Finance Department can operate retrospectively.

The impugned clarification does not mention its retrospective or prospective effect and it is trite law that any policy/rules does not operative retrospectively until and unless the same has been given retrospective effect by the Legislator. Reliance in this regard can be made to the case of Secretary to Government of Khyber Pakhtunkhwa Communication and Works Department, Civil Secretariat, Peshawar and others v. Inayat Ullah and another (2026 SCMR 558), in which it was held as under: -

“The fundamental principle governing the application of amended rules is that such amendment

operates prospectively unless a contrary intimation is manifestly evident from the statute.”

Likewise, in the case of Controller General of Accounts, Government of Pakistan, Islamabad and others v. Abdul Waheed and others (2023 SCMR 111), it was held that: -

“6.***** The insertion or deletion of any provision in the rules or the law, if merely procedural in nature would apply retrospectively but not if it affects substantial rights which already stood accrued at the time when the un-amended rule or provision was in vogue....”

As there was no mention of retrospective application of the subject clarification, the same was to operate prospectively.

8.Interestingly, before withdrawal of order dated 30.06.2021, neither an opportunity of hearing was granted to the petitioner nor any show cause notice whatsoever in that regard was ever issued, which approach being against the principle of audi alteram partem cannot be authenticated. No one should be condemned unheard would be enough to vitiate even the most solemn proceedings. This principle has originated from the Islamic principles of justice. Reliance in this regard is placed in the case of Hyderabad Chamber of Commerce and Industry v. M/o Commerce Govt. of Pakistan. (PLD 2024 Islamabad 353). Likewise, in the case of Central Development Authority through Chairman, Islamabad and others v. Shabir Hussain and others (2022 SCMR 627), it was held that: -

“7***** Another shortcoming and unlawfulness is that no prior notice or justification was even shown in the cancellation letter which is flagrant violation of well settled principle of natural justice which is

firmly established and deep rooted in the judicial conscience to be entrenched and embedded in every decision making function either judicial, quasi- judicial or administrative which is a fundamental rule of law that no decision must be taken affecting the right of any person without first being informed of the case and affording an ample opportunity of defence...”

9.The requirement of hearing the parties is not an empty formality, rather it constitutes an essential component of the principles of natural justice, due process and fair trial. The authority proposing to take an adverse action, must before reaching any conclusion against the person concerned, disclose the substance of the allegations and provide an effective opportunity to submit a response or defence.

10.Where an adverse or punitive action is taken without following the prescribed procedure of law or without affording the person concerned an adequate opportunity of hearing, such action is rendered vulnerable to judicial scrutiny. The violation of the principles of natural justice strikes at the very root of the proceedings and any consequential order founded upon such defective proceedings cannot ordinarily be sustained merely on the ground that the authority otherwise possessed jurisdiction to take action.

11.The requirement of observance of due process assumes greater significance where the proposed action carries civil consequences, affects the rights, status, employment, benefits, reputation or other legitimate interests of a person. An authority cannot bypass the requirement of providing a reasonable opportunity of defence and thereafter seek to validate the action on the basis of

subsequent explanations or proceedings. The safeguards of natural justice are intended to prevent arbitrary exercise of power and to ensure fairness, transparency and impartiality in administrative and disciplinary decision-making. Reliance in this regard is placed on the case of The Province of Sindh through Chief Secretary Government of Sindh and others v. Raj Kumar Lohana and others (2026 SCMR 278).

12.In view of the foregoing discussion and having examined the matter in the light of the applicable law and the principles of natural justice, this Court is of the considered opinion that impugned order dated 24.06.2022 cannot be sustained in the eye of law, having been passed without due observance of requisite procedure. Consequently, this petition is allowed and impugned order dated 24.06.2022 is set aside. As a result, order dated 30.06.2021 shall hold the field.

(SHIREEN IMRAN)

JUDGE

Approved for reporting.

JUDGE

Umar