2005 PLP (C (PLC(CS))

Raja Muhammad Sohail Iftikhar for Petitioner. Sh. Raees Ahmad for Respondents Nos.1 and

3. Ahmad Mansoor Chisthi, Assistant Advocate‑General, on behalf of Respondent No.2 along with Abdul Hameed Audit Officer. It is a strange case where a person who had worked for Punjab Zakat Department, Lahore on a meager pay of Rs.500 (five hundred rupees only) per month has been threatened and directed to pay back the amount which was disbursed to him on the basis of order dated 19‑12‑1992, passed by respondent No.2 by which he was "allowed to draw remuneration @ Rs.500 P.M. from the interest amount of Zakat Grant with effect from 15‑2‑1992". After having spent his energy and devoting the time for the work assigned, the petitioner has now been directed in the year 2002, to return the amount which has been calculated to the tune of Rs.45,250 (forty five thousand two hundred and fifty rupees only), by respondent No.2, Medical Superintendent of Sheikh Zaid Hospital, Rahimyar Khan on 5‑6‑2002.

2. Challenging the order dated 5‑6‑2002 passed by Medical Superintendent, Sheikh Zaid Hospital, Rahimyar Khan, the petitioner has requested that the aforesaid order be declared illegal and without lawful authority. The facts, which have emerged from the perusal of the record and the arguments of the learned counsel appearing on behalf of the parties, are, that on 2‑10‑1991 a meeting of Provincial Zakat Committee was held and a decision was passed which is reproduced as under:‑‑ In compliance of that decision, a meeting of Health Welfare Committee, District Hospital Rahimyar Khan was held on 24‑9‑1992 in which in para. No‑6, the aforesaid Health Welfare Committee decided to pay Rs.500 per month to Dispenser and Clerk of the concerned office from the interest of Zakat Fund as "wazeefa". After having passed this resolution, the Medical Superintendent, Sheikh Zaid Medical Hospital, Rahimyar Khan passed an office order on 19‑12‑1992, referred supra, in which Ijaz Ahmad, Junior Clerk was allowed to draw "remuneration" at the rate of Rs.500 per month. In the year 2002 Medical Superintendent/Convener issued the above‑noted order dated 5‑6‑2002 directing Ejaz Ahmad Tahir, petitioner, to pay back. Rs.45,250 which as per aforesaid memo. the petitioner was irregularly paid out of the Zakat Fund as honorarium from 16‑2‑1992 to 31‑3‑1999. Hence this writ petition against the demand/claim of respondent No.2.

3. The learned counsel appearing on behalf of the petitioner submits that the impugned order dated 5‑6‑2002 has been passed without grant of opportunity of hearing to the petitioner. It has further been submitted that in para. 4 of parawise reply and comments, filed by respondents Nos.1 and 3 it has been admitted that remuneration was paid to the petitioner by the order of Medical Superintendent concerned. As per learned counsel in another comments submitted by respondent No.2, in para. No.3, it has been admitted that petitioner was duly appointed and the Health Committee had decided to pay Rs.500 as remuneration to the petitioner instead of payment of Rs.2200 for a full time Zakat Clerk to be appointed. In the parawise reply and comments respondent No.2 has stated that this action was taken to save the expenditure of Rs.1700 per month of the Zakat Fund.

4. The learned counsel appearing on behalf of respondents Nos.1 and 3 has disputed all these arguments by stating that in the decision dated 2‑10‑1991, it was decided that the amount would be spent for the pay of the persons to be appointed for the purpose but the Health Welfare Committee had sanctioned Rs.500 as "wazeefa" instead of disbursement of pay, therefore, an illegality/irregularity was committed by the Health Welfare Committee and the demand/claim made by respondent No.2, Medical Superintendent, was valid.

5. The learned Assistant Advocate‑General has also appeared on behalf of respondent No.2 and has fairly supported the case/version of the petitioner.

6. I have considered the arguments of the learned counsel appearing on behalf of the parties and consulted the record. It is an astonishing aspect of the case that a person who has acted to save Rs.1700 of Zakat Department for the payment of a full time employee is being directed to get recovered back Rs.500 per month paid to and return it to Zakat Department. Instead of saying thanks to the Medical Superintendent and the Health Committee; they are being reprimanded for their bona fide action performed in the interest of the department. There is no denial to the fact that the decision dated 2‑10‑1991, it was decided and the persons concerned were authorized to make the appointments of employees for the duty/work to be performed for the Zakat Department and they were also empowered to pay the salary from the interest of Zakat Fund to those appointees. Acting in compliance of that decision, the Health Welfare Committee had passed/decided in its meeting that Rs.500 be paid as " wazeefa". The word " wazeefa" which has become an objectionable word for the audit department, was not to be considered objectionable if it was to be used as pay/salary/remuneration. But the audit department has missed that in the office order dated 19‑12‑1992 the word used was "remuneration", therefore, the petitioner had drawn the amount of Rs.500 as remuneration and not the "wazeefa" Even otherwise, I cannot approve this objection that a person who had worked for Zakat Committee for so many years on a meager pay of Rs.500 per month and was not bound to work for that department, is being directed to pay back the amount. The principle of equitable delivery of justice comes into play in this case. A person who has rendered his services for a purpose cannot be ordered to return because B he rendered service for that. If the amount is directed: to be returned, then he would be deprived of his services, without any fault on his part. It may be clarified here that petitioner was not legally bound and obliged to work for the Zakat Department, as he was not employee of that department, and it was an additional duty, which was performed by him. Moreover, if seen from the angle of legal parlance, the rule of locus poenitentiae comes into play and is applicable with full force in this case. The citations reported in 1997 SCMR 15 (Chairman, Selection Committee/Principal, King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and another) and PLD 1991 SC 973 (Chief Secretary, Government of Sindh and another v. Sher Muhammad Makhdoom and 2 others) can be referred to in support of this view, which I have taken, therefore, I declare the order dated 5‑6‑2002 to be illegal and unlawful and the demand/claim of return of Rs.45,250 made against the petitioner cannot be permitted to be recovered from the petitioner. The writ petition is, therefore, accepted in these terms, with no order to costs. S.A.K./I‑63/L Petition accepted