P L D 1969 Peshawar 237 (PLP)

MUHAMMAD SIDDIQ, J.

Sultan Muhammad Naeem Khan, the petitioner, was working as Chief Engineer Irrigation under the Government of West Pakistan when he was asked to proceed on leave preparatory to retirement with effect from the 20th of June 1966, and was retired from service on the expiry of this leave on the 18th of June 1967. On the 18th of February 1967 he was served with a charge‑sheet containing three charges in respect of certain acts of miscon duct alleged to have been committed by him while posted as Deputy Chief Engineer, Quetta Region, in the years 1958‑‑

60. He controverted the charges and a departmental enquiry was ordered against him on the 9th of May 1967, under the Government Servants (Efficiency and Discipline) Rules, 19611 (hereinafter referred to as the Discipline Rules). Respondent No, 3 was appointed as an enquiry officer. In the explanation submitted to the enquiry officer the petitioner challenged the validity of the enquiry as he had already retired from service. Thereafter, a fresh enquiry was ordered against the petitioner on the 30th of August 1967 (Annexure P. 2) and the same charges for alleged misconduct in the years 1958‑1960 were communicated to him (Annexure P. 3). Respondent No. 3 was again appointed to hold a departmental enquiry this time under the West Pakistan Civil Service Pension Rules, 1963 (hereinafter referred to as the Pension Rules). The previous orders were cancelled. The petitioner in his reply controverted the charges (Annexure P. 6). The petitioner had failed to exercise his option within a period of six months against the West Pakistan Pension Rules being applied to him as laid down in rule 1.4 of the said Rules. Instead, he opted for these rules on the 9th June 1964 (Annexure P. 7). The Government failed to pay the gratuity and pension etc. due to the petitioner after his retirement and also declined to drop the enquiry started against him. Feeling aggrieved, the petitioner came up with the present writ petition and has prayed for the necessary writ being issued against the holding of the departmental enquiry against the petitioner and for the amount due to him as gratuity and pension etc. being paid to him. In the report submitted for respondent No. 1 it was claimed that the enquiry against the petitioner was competent and in reply to paragraph 20 of the writ petition it was claimed that "grant of pension/gratuity to the petitioner will be decided only after the conclusion of the departmental enquiry". The grounds alleged against the enquiry being held are :‑ (a) The charges framed against the petitioner cannot be described as charges of "grave misconduct". Moreover, they had been framed mala fide and after an inordinate delay of seven to nine years. (b) The order of the enquiry being held in conjunction with the Discipline Rules is contrary to law because the said Rules do not apply to pensioners and the pensioners cannot be subjected to any of the punishments mentioned in the said Rules. (c) The Pension Rules and the Discipline Rules cannot have retrospective effect and the petitioner cannot be charge -sheeted under them for acts committed during the period 1958‑1960. (d) Rule 1.8(a) of the Pension Rules is void and ultra wires of Article 178, Clause 3(a) of the Constitution as it altered the petitioner's terms and conditions of service to his detriment. Under the earlier Pension Rules the whole of the pension could not be withheld nor could a depart mental enquiry be held after retirement. None of the objections mentioned above has, in our opinion, any force to make the proceedings under the departmental enquiry without lawful authority. The Pension Rules were framed under the competent authority of the Government and were gazetted on the 7th of June 1963. Rule 1.8(a) is in the following terms :‑ "Good conduct is an implied condition of every kind of pension. Government may withhold or withdraw a pension or any part of it if the pensioner be convicted of serious crime or be found to have been guilty of grave misconduct either during or after the completion of his service provided that before any order to this effect is issued, the procedure regarding imposition of the penalty of removal from service shall be followed." This rule gives ample power to the Government to withhold the pension or any part of it if the pensioner is convicted of serious crime or is found to have been guilty of grave misconduct either during or after the completion of his service provided that before any order to this effect is issued the procedure regarding imposition of the penalty of removal from service is to be followed. The petitioner's objections are that the rule is bad as the Pension Rules were given retrospective effect from the 14th of October 1955. Action against the petitioner is being taken under rule 1.8(a) after the 7th of June 1963. Hence he cannot be said to have been aggrieved by the Pension Rules having been given retrospec tive effect. The further objection that this rule alters the conditions of service of the petitioner to his disadvantage an is hit by Article 178 of the Constitution has also no force as the petitioner had been given the option under rule 1.4 against the Pension Rules being applied to him. He failed to exercise the option within the period of six months allowed. On the contrary he positively opted for these rules on the 9th of June 196‑1, and a copy of the intimation sent in the matter is Annexure P. 7 enclosed to the writ petition. In these circumstances, the petitioner cannot plead the bar of Article 178 of the Constitution merely because one of the Rules which he had opted for was partly less beneficial to him. The third objection raised is that the enquiry under the Pension Rules was ordered in conjunction with the Dis cipline Rules. There seems to be no force in this objection either. The mere fact that the charges are in respect of the same allegations does not necessarily mean that the petitioner cannot be proceeded against for grave misconduct under the Pension Rules. In the Pension Rules "grave misconduct" has not been defined but in the absence of any such definition the term "grave misconduct" has to be given its ordinary dictionary meaning. It will be a question of evidence as to whether or not, the allegations if any established against the petitioner will bring his case tinder the term "grave misconduct". The further objection that the earlier rules provided for no depart mental enquiry or that the procedure provided for under the Discipline Rules has been made applicable to the enquiry under the Pension Rules also seems to be devoid of force. There is no objection to the procedure provided in the Discipline Rules being followed in principle in the enquiry under the Pension Rules. According to the order dated the 30th of August 1967 (Annexure P. 2), the Inquiry is to proceed under rule 1.8(a) of the Pension Rules and not under the Discipline Rules and the punishment also is to be not any provided for in the Discipline Rules but the withholding or withdrawing of pension or any part of it (para. 2 of Annexure P. 3). The objection that the Discipline Rules, 1960 were in force during the period 1958‑1960 to which the charges relate is also without force as the allegations could equally be covered by the earlier rules on the subject. In any case, the Pension Rules do not define the term "gravely misconduct" occurring in rule 1.8(a) and it is left to the enquiry officer and the punishing authority to see if the facts established make out a gas, of "grave misconduct" or not. Under rule 1.8(a) the Government is competent to look into the allegations of grave misconduct against a pensioner for the acts committed during or after the completion of his service and nothing has been made out to show that the decision of the Government to look into this matter is without lawful authority.

4. With regard to the petitioner's claim that be was entitled under the Pension Rules to receive the amounts due to him as gratuity and pension, the learned Additional Advocate‑General has not been able to show us any authority in support of the Government claim that these payments can beg withheld till the departmental enquiry against the petitioner is finalized. His submission, however, was that the delay has occasioned mainly because of the present proceedings started by the petitioner and that the departmental enquiry could otherwise be finalized within about six months and the whole situation could have been clarified. He has assured us that the Government has no mind to victimise the petitioner and that every effort will be made to expedite payments due to him as soon as the cloud is removed from his name. In these circumstances, and especially in view of the fact that the petitioner is himself largely to blame for the delay we, do not feel called upon to exercise the discretion for issuing any writ against the respondent for the payment of the amounts due as gratuity and pension. The writ petition therefore fails and is hereby dismissed. We, however, leave the parties to bear their own costs. A. E. Petition dismissed.