1985 PLP (C (PLC(CS))

Haroon‑ur‑Rashid Cheema, District Attorney for Respondents. Madad Hussain Shah Retired Assistant Food Controller, has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded Deputy Director Food, Multan Region, Multan and Director Food, Punjab, Lahore, as Respondents.

2. By virtue of this appeal he has prayed that the order of Respondent No. 1, dated 16th February, 1981 be set aside as being illegal.

3. Brief facts of the case are that the appellant while serving as Assistant Food Controller, Multan was retired under section 12(ii) of the Punjab Civil Servants Act, 1974, by Respondent No. 1, vide order, dated 9th January, 1980, after he had completed 25 years service qualifying for pension and other retirement benefits. The appellant applied to the Respondent No.1 for completing the formalities in connection with the fixation of pension and gratuity etc. His request for the same has been refused by the Department on the ground that as the appellant stood convicted and sentenced to two years' R.I. and a fine of Rs. one lac by the Special Military Court on 20th April, 1980, he was not entitled to the same. The application of the appellant was made through his son while he was undergoing the said sentence passed by the Special Military Court. The Services, General Adminis tration and Information Department vide its letter, dated 14th January, 1981, addressed to Respondent No.2, urged upon Respondent to settle the case of the appellant and further directed that this' case be included in his quarterly return of delayed cases of pension/G.P. Fund so that it be considered by the Pension Cases Disposal Committee in its next meeting. The appellant was ultimately released when his sentence was commuted by the M.I. Authorities. He again agitated for his claim but the same has been refused. Hence this appeal.

4. We have heard the leaned counsel for the appellant as well as learned District Attorney and have perused the record of this case carefully with their assistance Learned counsel has relied on rule 1.8 of West Pakistan Civil Services Pension Rules, 1965, which envisages action of withholding of pension of a civil servant both during the service and. after the service but lays down a condition that such action would only be taken under the procedure regarding imposition of penalty or removal from service under the E & D Rules. According to the learned counsel if the Government wanted to take action on his being convicted after retirement by the Special Military Court then the procedure to be adopted for such course was only one which was laid down under rule 1.8 of the Pension Rules. It has been further argued that rule 1.8 of the Punjab Civil Servants Act, 1974, entitles every civil servant to receive pension and gratuity as may be prescribed. It has been further argued that the bar to withhold pension was only vested with Government under rule 1.8 and no power has been delegated to the Deputy Director Food to exercise this power. Learned counsel has vehemently challenged the reliance of the Respondents on rule 9(b) of the E & D Rules to dispense with the opportunity of showing cause. Relying on the judgment of this Tribunal passed in case of Azam Khalil v. Secretary, S & G A I Department 1982 P L C (C.S.) 140, it was argued that the said rule has been declared by this Tribunal as disabling and not enabling rule for the authority and any action taken under that rule was an act coram non judice.

5. On the other hand learned District Attorney has submitted that the contention of the learned counsel for the appellant with regard to the inconsistency of, section 18 of the Punjab Civil Servants Act, 1974, with rule 1.8 of Pension Rules was misconcieved as according to section 18 a civil servant on retirement was entitled to receive all such pension or graduity as may be "Prescribed". According to the learned District Attorney the word "Prescribed" has been defined in section 2(g) of the Punjab Civil Servants Act, 1974, wherein it has been laid down that "prescribed" means prescribed by rules. According to the learned District Attorney in this manner no inconsistency can be claimed by the appellant in this behalf.

6. With regard to the competency of the Deputy Director Food to withhold the pension under his own authority, which has been challenged by the learned counsel for the appellant, the learned District Attorney has submitted that the said Deputy Director Food would be competent to sanction the pension under item No. 23 of appendix A appended to the West Pakistan Civil Services Delegation of Powers Rules, 1962, therefore, the same authority could withhold the same under section 20 of the General Clauses Act, which section provides that authority which is empowered to sanction certain things can rescind the same.

7. I have given my anxious thought to the arguments advanced by the parties with regard to the claim of inconsistency of rule 1.8 of West Pakistan Civil Servants Pension Rules, 1963, read with section 18 of the Punjab Civil Servants Act, 1974 and I have no hesitation to hold that the arguments advanced by the learned District Attorney is liable to succeed. The word "prescribed" used in section 18 of the Punjab Civil Servants Act, 1974, has been defined as in section 2(g) of the said Act as prescribed under the rules. In this way' no inconsistency would be there between the Rules and an Act. However, the Deputy Director Food has failed to observe the mandatory provision of rule 1.8 of the Pension Rules which provides as under:‑ "Provided before any order is passed the procedure regarding imposition of penalty of removal from service shall be followed." This would mean that if the right of pension which is valuable right of a civil servant, was to be withheld, the Government would be under obligation to proceed under rule 6 of the E & D Rules in order to justify such action. In view or the above I am of the considered opinion that the action taken by the Deputy Director Food for withholding the pension in a summary manner, cannot be upheld.

8. With regard to the application of rule 9 of E & D Rules, under which protection has been claimed by the Respondents, it would be sufficient to say that by the judgment of this Tribunal in Azam Khalil's case the efficacy of these rules has been exposed and it has been held that the rule was not enabling rule in any manner whatsoever. In view of the judgment of the Tribunal in Azam Khalil's case I cannot endorse the action taken by the Respondents in the present case. Learned District Attorney has vehemently resisted the claim of the appellant that the Deputy Director Food was not the competent authority to withhold the pension as it was the Government only which was vested with such powers under rule 1.8 of the Pension Rules. It has been submitted by the learned District Attorney that as the Deputy Director Food was an authority competent to sanction pension and gratuity while passing the order under section 12(ii) of the Punjab Civil Servants Act, 1974, read with item No.25 of Appendix A, appended with the West Pakistan Civil Services Delegation of Powers Rules, 1962, therefore, no exception can be taken against his action as the same is protected under section 20 of the General Clauses Act. I am afraid I cannot accept this argument for the reasons that withdrawing of pension is withdrawing a very valuable right of a civil servant which in my considered opinion, cannot be allowed to be exercised by a delegatee of the Government in the rank of a Deputy Director Food. His order of retirement under section 12(ii) of the Punjab Civil Servants Act, 1974, was a positive order with regard to the claim of pension, etc. of the appellant and to conclude that the same authority would also e in a position to withhold the said right, it would be a proposition having far reaching effects against a civil servant.

9. At this stage I will like to point out that word "rescind" means to annul and word "withhold" means to "keep back" "to refuse to give", therefore, both these words import different meanings and cannot be considered synonymous with each other. The authority granting the pension could rescind order as a right but to withhold the right of pension is more serious act with far‑reaching effect over the right of a civil servant and same has rightly been bestowed upon the Government.

10. In view of the above I am of the confirmed view that the impugned order is liable to be set aside. I, therefore, proceed to accept the appeal, set aside the impugned order with the direction that Government if advised to withhold the pension on account of conviction under Martial Law Regulation and bad service record of the appellant, can proceed in accordance with the procedure as laid down under rule 1.8 of the Pension Rules and under E & D Rules only. If Government in its own wisdom wants to delegate such powers to delegatee, it should say so specifically. There will be no order as to costs. A. E. Appeal accepted.