2004 PLP (C (PLC(CS))

2. The petitioner duly contested the notice and after all the codal formalities, the Authority imposed the penalty of withholding 60 % of gross pension. The matter went in appeal (Service Appeal No.1748 of 2002) before the Punjab Service Tribunal, Lahore (hereinafter to be referred to as "the Tribunal"). The learned Tribunal vide order dated 10‑2‑2003 allowed the appeal partially, reduced the penalty from 60 % withholding of pension to 10 % . It also directed that encashment of six months earned leave be sanctioned in favour of the petitioner and that the Government shall also consider, strictly in accordance with law the grant of pro forma promotion. Not satisfied the petitioner seeks leave to appeal against the judgment of the Tribunal.

3. It is contended by Ch. Afrasiab Khan; learned Advocate Supreme Court for the petitioner that rule 1.8(a) of the Pension Rules is ultra vires of section 18 of the Punjab Civil. Servants Act, 1974. In support, he has relied upon two judgments of the same Tribunal namely, Malik Ehsan‑ul‑Haq v. Government of the Punjab through Chief Secretary and 3 others 1994 PLC (CS) 454 and Syed Munir, Hussain Shah v. Secretary, Livestock Dairy and Development Department, Government of the Punjab and 2 others 1995 PLC (CS) 943.

4. The first one is by a Bench of two members while the latter one is by a‑'single member and follows the first one. Learned counsel has vehemently urged that section 18 of the Punjab Civil Servants Act, 1974 (hereinafter referred to as "the Act') guarantees the grant of pension to a civil servant, (except in the case of dismissal and removal) and the rule in question enabling withholding of the pension goes beyond the provision of parent statute. He has also tried to show that the petitioner has been wrongly held to be involved in the reinstatement of the two teachers removed from service way back in the year 1972. According to him, the reinstatement order was passed by the Secretary Education Department who was never proceeded against.

5. The point of rule being ultra vires does not seem to have been urged before the Tribunal and normally should not have been permitted to be raised in this, Court. However, being question of law was allowed to be urged.

6. The submission has not impressed us. The reading of section 18 of the Act shows that the right to pension is not unqualified but the entitlement .to receive pension or gratuity is subject to prescription The word‑s of section 18(1) of the Act are:‑‑ "On retirement from service, a civil servant shall be entitled to receive such pension, or gratuity as may be prescribed. " Subsection (3) of the same section reads:‑‑ "No pension shall be admissible to a civil servant who is dismissed or removed from service for reasons of discipline .., "

7. The submission of Mr. Afrasiab Khan is that only in cases of removal and dismissal on a charge indiscipline, a civil servant can be denied the pension. Otherwise he has to be paid the full pension. This interpretation would have been acceptable if the words "as may be prescribed" were not there in subsection (1). Rule 1.8(a) is a healthy one and is meant to ensure good conduct on the part of a civil servant during service or even after it. The correct statement of law, therefore, seems to be that a civil servant on completion of service is entitled to pension provided he has been of good conduct during the service. Subsection (3) creates an exception to the above provision as dismissed or removed civil servant has no claim whatsoever to pension, he being guilty of misconduct. The judgments referred to and relied upon by Mr. Afrasiab Khan do not expressly hold rule 1.8(a) to be ultra vires of section. 18 but even if such an inference is possible. we, with respect, do not agree with the same. It is held that rule 1.8(a) of the Punjab Civil Services Pension Rules, 1963 is not ultra vires of section 18

8. On facts, Inquiry Officer, the Authority and even the Tribunal have held that the petitioner is liable. The Tribunal has concluded that petitioner alone is not responsible but two other officers also seem to be involved. After hearing learned counsel as also the representative of the department who also produced before us the relevant file, we find no good reason to differ with the finding of the Tribunal. In any case, this is purely a question of fact and stands finalized by the Tribunal. It may also he noticed that the Tribunal has not only reduced the penalty from 60% to 10% but has also directed encashment of the leave as also the consideration of pro forma promotion. In the facts and circumstances of the case, we are inclined to state that the petitioner should have been satisfied with the substantial relief granted to him by the Tribunal.

9. Leave to appeal is refused and the petition is hereby dismissed. (Sd.) (Karamat Nazir Bhandari, J) Separate note appended. (Sd.) (Javed Iqbal, J) JAVED IQBAL.‑‑‑I have the honour to peruse the judgment with respect. In my humble view the then Secretary Education was mainly responsible for the blunder but no action whatsoever was initiated against him. The then Secretary has acted quite arbitrarily inasmuch as before passing the order in question he did not care to have gone through the record of the case with such prudence as his office demanded of him. He appears to have failed to apply his conscious mind to the facts of the case and instead toed the line so ill‑foundedly and unscrupulously drawn by his subordinates. The main allegation against the petitioner was that he had misinterpreted and misconstrued the judgment of this Court which aspect of the matter could not be substantiated that as to how and in what manner the direction if any of this Court was violated and how he transgressed his authority. In my humble view the controversy needs thorough examination on the above points. M.H./M‑4/S Petition dismissed.