1997 PLP (C (PLC(CS))

MUHAMMAD BASHIR KHAN JEHANGIRI, J.‑‑‑This appeal with the leave of the Court, is directed against the judgment dated 24‑4‑1995 of the Punjab Service Tribunal whereby the orders of compulsory retirement of the respondent from service as also of recovery of losses in the storage of wheat were set aside and the respondent was reinstated. The period intervening the dismissal of the respondent and the reinstatement was deemed to be "leave. of the kind due".

2. Akhtar Ali, respondent, was posted as Food grains Inspector at the Wheat Purchase Centre, Haroonabad, District Bahawalpur, when shortage in the storage of procured wheat was detected by the Government, whereupon the respondent was charge‑sheeted and inquiry was held against him under the Punjab Civil Servants (Efficiency and Discipline;‑ Rules, 1975 (hereinafter called as the Rules). Ultimately, the Deputy Director Food, Bahawalpur Division, by his order dated 19‑7‑1990, besides directing recovery of the entire losses from him, ordered his dismissal from service. The respondent, feeling aggrieved by this order, filed a departmental appeal, The appeal was partially accepted whereby the order of dismissal of the, respondent from service ‑ was set aside but that of recovery of losses was maintained vide order of the Director Food dated 16‑7‑1991. The revision filed by the respondent did not find favour with the Secretary to the Government of Punjab in the Food Department and it was also dismissed. The respondent then approached the Punjab Service Tribunal.

3. The Tribunal found that the Enquiry Officer relied upon the record and had not inspected the stores at the spot; that evidence of Mr. Muhammad Ajmal Ghazali, AFC had unduly weighed with the Enquiry Officer in finding the respondent guilty "as he was himself involved in the case" and "further was not allowed to be cross‑examined by the respondent which was obligatory under the Rules;" that the respondent having been retired was no more a 'civil servant' within the purview of section. 2(1)(b) of the Punjab Civil Servants Act (VIII of 1974) read with the Instructions Annex ' X' dated 7‑9‑1982 when the penalty of recovery of losses and that of retirement was imposed. The Tribunal in this context referred to the precedent of Bilquis Nargis v. Secretary to the Government of Punjab, Education Department (1983 PLC (C. S.) 1141). In consequence, the appeal was accepted in the terms described above.

4. Leave to appeal was granted in the following paragraph:‑‑ "

4. The impugned order indicates that apart from the merits of the case, the other reasons which have weighed with the learned Tribunal for allowing the respondents' appeals is that appellant Akhtar Ali has ceased to be a civil servant on 19‑7‑1990 when the said penalty had been imposed upon him as he had already retired from service on 15‑7‑1990. Consequently, the disciplinary proceedings pending against him had abated. Reference in this regard was made to the Tribunal's earlier judgment reported in 1983 PLC (C.S.) 1141 which also supported this view. Section 2(1)(b) of the Punjab Civil Servants Act, 1974 defines "civil servant" as follows:- Civil servant' means a person who is a member of a civil service of the Province or who holds a civil post to connection with the affairs of the Province, but does not include‑‑ (i) a person who is on deputation to the Province from the Federation or any other Province or authority; (ii) a person who is employed on contract, or on work‑charge basis, or . who is paid from contingencies; or (iii) a person who is a 'worker' or workman) as defined in the Factories Act (XXV of 1934) or the Workmen's Compensation Act (VIII of 1923). "

5. No doubt, as is clear from the above definition, a person who has retired, from service does not fall within the purview of the definition of 'civil servant', therefore, technically, the Tribunal appears to be right, but the contention of the learned counsel for the petitioner before us has been that, the respondents had been found to be involved in the embezzlement of a very heavy quantity of food grain and upon interpretation of the said definition of "civil servant" by the Tribunal, guilty persons would go scot‑free. To us this technical omission, failing to cover a retired civil servant in the definition, does not appear to be intentional. Since there is no authoritative pronouncement of this Court in this regard, leave is granted to consider the above question pending final disposal of this petition. " Hafiz Tariq Nasim, learned counsel appearing on behalf of the appellants, submitted that the learned Tribunal had erred to place reliance on the authority of Bilquis Nargis v. Secretary to Government of the Punjab, Education Department (1983 PLC (C.S.) 1141). The ratio deducible from the case of Bilquis Nargis supra is that no inquiry can be finalised against a civil servant after his/her retirement as he/she would no longer be civil servant and disciplinary proceedings against him/her stand abated. It was next contended that the learned Tribunal could not legally substitute the well reasoned findings of the Enquiry Officer, recommendations of the Authorised Officer, decision of the Appellate Authority and the Revisional, Authority.

5. We tend to agree with the first contention raised on behalf of the appellants. In the precedent of Bilquis Nargis supra the decision of the Central Government to the effect that 'once a Government Officer reaches the age of superannuation all the enquiries so pending would stand abated and such officer will retire with full pensionary benefits and the period of suspension would be treated as period sent on duty'. (Underlining is for emphasis). The precedent case was taken to be of hardship having not been finalised for 7 years till she attained the age of superannuation. It was in this background that it was further held that:‑‑‑ "It would be in the interest of civil services as well as good name of the Government that justice should be done in the case of civil servants and they tray not be left lingering on in the state of expectations for such a long years in service,, without any result." In this view of the matter, the appeal filed by Bilquis Nargis appellant was accepted with the direction that she had since retired without being informed of the outcome of the inquiry conducted against her for full 7 years. She was, therefore, held entitled to full pensionary benefits and the inquiry against her was declared to have abated.

6. In the instant case, the respondent had not attained the age of superannuation. We are told that he has still a number of years to serve, therefore, the learned Tribunal could not invoke the principle laid down in Bilquis Nargis's case.

7. The second contention raised on behalf of the appellants is clearly negatived by the provisions of subsection (1) of section 5 read with section 4 of the Punjab Service Tribunals Act, 1974, whereunder the Tribunal has been empowered to confirm, set aside, vary or modify the order passed by a departmental authority in respect, of any of the terms and conditions of his service including disciplinary matters.

8. As noticed earlier, the Tribunal besides invoking the principle enunciated in the case of Bilquis Nargis had granted the relief to the respondent on the additional grounds, firstly, that the respondent having been not only disallowed to cross‑examine the AFC who had appeared against him but also that the statement of said AFC qua the respondent was devoid of any evidentiary value, for, the former was himself involved in the same case. We find that the two grounds being well founded were per se enough to vitiate the consequential penalty imposed as a result of the inquiry proceedings..

9. Shah Abdur Rashid, learned counsel representing the respondent, in support of the impugned order passed by the learned Tribunal, additionally relied upon the dictum in the case of Muhammad Ibrahim Dasti and another v. Deputy Director Food, Multan and another (1986 PLC (C.S.) 845) to contend that where the wheat is stored first in open in shape of 'Gunjies' and then in a house type godowns, the loss occurring as a result of heavy rains, infestation and other vagaries of nature which is beyond the control of those responsible, the recovery of the losses so occurred cannot be made and as in the instant case exactly in the same circumstances, the recovery had been ordered, therefore, the order so passed was not sustainable. In the case of Muhammad Ibrahim Dasti supra assessment of the average shortage of wheat by the Government experts in the process of storage to the extent of 3% per six months or 6% per year in house‑type godowns and 9% to 11% per year in Open Stores had been condoned. The shortage further worked out by the NLC Headquarters G.H.Q., Rawalpindi running also on the same lines has also been referred to in the above‑cited authority. The learned counsel for the respondent also relied upon the law laid down by this Court to the precedent case of Director‑Food, Punjab and 2 others v. Rashid Ahmad (1990 SCMR 1446) wherein the losses or shortage of wheat had occurred, the extent of responsibility therefore and the conditions prevailing as in the present case were noticed by the Authorised Officer and the decision of the Service Tribunal based substantially on the view of the facts found established by the Authorised Officer setting aside the order of recovery by the Tribunal was not interfered with.

10. We have given our anxious thought to the arguments advanced by the parties and find that the arguments so made by the learned counsel for the respondent are forceful and based on documentary evidence. Furthermore, the statement of Muhammad Ajmal Ghazali, AFC who was shown to be prejudiced being a co‑accused of the respondent could not have been considered for fixing the responsibility for the losses on the respondent and the loss having occurred beyond the control of the respondent and being the result of heavy rains, infestation and other vagaries of the nature.

11. In view of what has been discussed above, we do not find any justification to interfere with the order of the learned Tribunal which is in consonance with the policy decision on the existence of permissible losses in the storage of the grains. The appeal thus stands dismissed with no order as to costs. A.A./D‑128/S Appeal dismissed.