2012 PLP (C (PLC(CS))

ABDUL GHANI SHAIKH (CHAIRMAN).-- The appellant Abdul Hameed had joined the respondent department on 26-6-1962. While serving as Foreman (Running) he was retired from. service on 13-11-2002 on attaining the age of 60 years but his pensionary benefits were withheld by the impugned order dated 24-4-2003 against which he sent his representation on 20-6-2006 and finally on 13-11-2006. On,28-11-2006 the respondent No.2 upheld the original impugned order (Annexure-A/12) stating that case of the appellant has been Feferred to respondent No.1. The appellant on receipt of appellate rejection order dated 28-11-2006 filed the instant appeal before the Tribunal within next 30 days praying to hold that pensionary benefits of the appellant cannot be withheld by the respondents under any law of the land and to order for payment of dues and pensionary benefits to the appellant of the period 26-6-1962 to 13-11-2002.

2. We have heard the arguments of learned counsel for the appellant as well as departmental representative for the respondents.

3. Learned, counsel for the appellant contended that the appellant while serving in Railway Department was arrested by the Railway Police on 17-5-2001 and thereafter was released on bail. He while facingcriminal charge in the Court of law had reached the age of 60 years on 13-11-2002 but pensionery benefits for the period from 26-6-1962 to 13-11-2002 have not been paid to the appellant by the department which is his vested right. He contended that on 27-3-2002, papers for payment of pensionery benefits and gratuity of the appellant were processed by the department but till date nothing has been paid. According to him gratuity cannot be withheld with pensionery benefits as such action of the respondent is unlawful. He further contended that salary pay and allowances and other benefits are not bounty of the state but right of the employee. and can be claimed as, a matter of right by the employee concerned and placed reliance on 2001 PLC (CS.) 991, 2003 PLC (C.S.) 1376 and 2005 PLC (C.S.)

4. He also placed reliance on 1985 PLC (C.S.) 91, 2002 PLC (C.S.) 1159, 2004 SCMR 656, 2006 PLC (C.S.) 617 and 2006 PLC (C.S.)

617. He further contended that appellant has rendered long service in the department. In 2001 he was falsely implicated in criminal case, but pensionary benefits i& right of the appellant and as such the impugned order issued by respondent No.2 on 24-4-2003 without taking into consideration the relevant law is unjustified.

4. The departmental representative while relying on parawise comments conceded that pensionery benefits have not been paid to the appellant as criminal case is still pending adjudication and according to him pensionery benefits of an under trial accused/employee can be withheld till decision from the court of law but stated that payment of GP fund worth Rs.4,32,862 has been made to the appellant on 22-1-2003 vide Cheque No.001844 dated 21-1-2003. He referred to Rule No.2307 of establishment court Vol-I CSR-351.

5. We have given anxious consideration to the above arguments advanced by the learned counsel for the appellant as well as Departmental representative for the respondents.

6. Admittedly the pensionery benefits of the appellant which is his vested right have not been paid to him. The respondents had no right to recover any amount outstanding against a retired employee/appellant from his pension, after issuing a show-cause notice and giving him an opportunity to defend himself, but there is nothing on record to show that any notice was sent to appellant. Without show-cause notice to A appellant his pension could not ? be stopped as has been done by respondents. Reliance is placed on 2004 SCMR

656. The contention' of the respondents that criminal proceedings were pending against the appellant hence he could not be paid the amount of pensionery benefits is not justified. Reliance is placed on 2007 PLC (C.S.) 691 wherein it was held that:-- "

Art. 199

Constitutional petition

Civil service

Pendency of criminal proceedings against civil servant

Withholding of pension and gratuity

Criminal proceedings were pending against petitioner for the last 10 years and pension and gratuity of petitioner were being withheld on account of pendency of said criminal proceedings; though Departmental proceedings in respect of the same charge were dropped against petitioner--Validity-Law did not contemplate a retired government servant to be deprived of his 'retirement benefits endlessly

Department had concluded its own proceedings against petitioner in his favour

Department ought to have brought such finding on the record of the Special Judge Anti-Corruption before whom prosecution was under adjudication for last 10 years

Punjab Civil Servants Pension Rules, 1963 were silent with respect to consequence of appending third party prosecution of a retired civil servant to receive pensionary dues

Proceedings being pending against civil servant before Judge Anti-Corruption, no direction was issued by the department in that regard

Petitioner, however, would be at liberty to approach High Court after four months, if by such time, Authority, who was so directed, would not co-operate to get criminal case against petitioner concluded in accordance with law." Reliance is placed on 2005 PLC (C.S.) 1439 wherein the Hon'ble Supreme Court held that:

Civil Servants Act (LXXI of 1973)

S. 19

Service Tribunals Act (LXX of 1973), S.4

Constitution of Pakistan (1973), Art.212(3)

Pension, grant of

Service Tribunal granted pension to the employee holding him entitled to it dismissing preliminary objection of employer with regard to limitation on ground that receipt of pension was a continuing cause of action and could be agitated at any time

Employer could not show any illegality in impugned judgment of Tribunal which could have entitled him to grant of leave in terms of Art.212(3) of the Constitution

Pension was dismissed and leave refused=--Employer having denied pension to the employee for almost 10 years, and having dragged him into litigation before all kinds of for a employer was directed to pay Rs.5;000 to employee as costs. Further reliance is placed on PLD 2007 SC 35 wherein the Hon'ble Supreme Court held that:-- (a) Constitution of Pakistan(1973)

Arts. 185(3), 9 & 14

W.P. Civil Servants. Pension Rules,1963

Case of delay in payment of pension benefits of Government Servants-:-Criminal negligence and violation of fundamental rights of life and property

Said educationalist/ professor and his wife had died allegedly due to staration on account. of long delay in payment of pension

Criminal miscellaneous petition in Supreme Court in original jurisdiction

Held: It was not only the instant case but there were a large number of a identical cases of retired Government Officers/Officials as well as widows and their children which were being reported from time to time in the media

Predecessors of deceased Government servants had to wait for a long period to get cleared, their pension papers

All over the country offices of Accountant General usually raised baseless, frivolous and technical objections for causing'delay in finalizing the pension cases with ulterior motives, of fourse known to them best

Resultantly, good .governance was suffering badly

Thus everyone who was responsible in any manner in delaying case of such retired officers/official or widow or orphan children for recovery of pension/gratuity and G.P. Fund had to be penalized

It was against dignity of a human being that he had to die in miserable condition and for about 3 years no action had been taken by the concerned quarters in finalizing pension case

All the government departments; agencies and officers deployed to serve the general public within limit of constitution as well as by law would not cause unnecessary hurdle or delay in finalizing payment of pensionary/retirement benefits cases in future and violation of those direction would amount to criminal negligence and dereliction of the duty assigned to them

Supreme Court further directed that in future if there was any delay in that behalf, the head of the concerned department would be dealt with strictly in accordance with law

Pension and other dues of said late professor would be calculated and amount would be paid to his legal heirs, if any, otherwise Chief Secretary would deal with the amount being unclaimed in accordance with ,law

Order accordingly.

7. In view of what has been discussed above, we allow the appeal, set aside the impugned order dated 24-4-2003 for withholding of pensionary benefits of the appellant for the, period from 26-6-1962 to 13-11=2002 and direct the respondents to pay B the same to the appellant within a period of one month from the date of receipt of a copy of this judgment and intimate the Tribunal within such period, otherwise head of the department who caused unnecessary hurdle or delay in finalizing payment of pensionary/retirement benefits may face consequences. No order as to 18 costs.

8. Parties be informed as per rules. H.B.T./3/FST?????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.