2018 PLP (C (PLC(CS)N)

ABDUL SHAKOOR, J.

Petitioner through this petition has asked for issuance of an appropriate writ to the effect that the respondents Nos.2 and 3 be directed to make payment of salaries of the petitioner for the months of May, 2013 to December, 2013, amount of encashment of LPR and consider his retirement date as 31.12.2013.

2. Precise and concise facts of this petition are that the petitioner was appointed as Primary School Teacher on 21.12.1987 and after the completion of 26 years service (qualifying for pension) stood retired on 31.12.2013. Resultantly, he was to be paid all his monetary benefits arising out of his retirement. However, respondent No.3 has not paid him his monetary benefits of retirement from service on the basis of inquiry proceedings which were in progress before his retirement but have been finalized after his retirement. As he has passed an order dated 15.01.2014 in the light of said inquiry, as a result of which he has been denied monthly salaries w.e.f. May, 2013 to December, 2013 and amount of leave encashment in terms of LPR. Petitioner being aggrieved from the order dated 15.01.2014, has preferred an appeal to the respondent No.3. Who in response to the appeal of the petitioner, passed an office order No.1924-25 dated 16.04.2014 whereby the previous inquiry report has been misplaced and a fresh inquiry committee was constituted with regard to the allegations of absence of petitioner for a period w.e.f. 16.03.2013 to 31.12.2013. As per contention of petitioner, all that was done after his retirement. However, the inquiry committee unanimously opined that the allegations leveled against the petitioner with regard to his absence are baseless, therefore, his pay be released immediately, but respondent No.3 did not act upon the findings of said inquiry committee. He vide order No.2751 dated 27.05.2014 informed petitioner that the case was re-inquired and competent authority has confirmed the date of his retirement as 16.03.2013. Petitioner being aggrieved, approached respondent No.2 through an appeal, which was inquired by Assistant Director, Directorate of Elementary and Secondary Education, Khyber Pakhtunkhwa, Peshawar. Who, as a result of his findings, recommended that salaries of the petitioner for the months of May, 2013 to December, 2013 be released along with encashment of LPR with all benefits. In the light of said findings of Assistant Director, Directorate of Elementary and Secondary Education, Khyber Pakhtunkhwa, Peshawar, the Deputy Director Establishment, Khyber Pakhtunkhwa, Peshawar, directed the District Education Officer (M), Shangla to implement the recommendations of the Assistant Director, Directorate Elementary and Secondary Education, Khyber Pakhtunkhwa, Peshawar. Despite that petitioner was neither paid salary for the months of May 2013 to December, 2013 nor paid the amount in terms of encashment of LPR as well as his pensionary benefits after his retirement on 31.12.2013. He, in the circumstances, was left with no other option but to invoke the constitutional jurisdiction of this Court under Article 199 of the Constitution. Hence, this petition.

3. This Court directed the respondents to file their para-wise comments. They accordingly filed the comments. The respondents through their comments averred that they have conducted inquiry during the service of the petitioner but order in the light of that inquiry was passed on 15.01.2014 As a result of order dated 15.01.2014, the office order No.5976-78 dated 28.09.2013 was revised with no encashment of LPR and the absence period was converted into leave without pay. The SDEO (M) Pry: Edu: Shangla was directed to recover the amount of salaries from petitioner w.e.f. 16.03.2013 and revise the case of retirement of petitioner w.e.f. 16.03.2016.

4. Arguments of the learned counsel for the petitioner and learned A.A.G. for official respondents have been heard at length and record available on file perused minutely.

5. Learned counsel for the petitioner vehemently submitted that the inquiry, if any, which was in progress before the retirement of the petitioner stood abated on the date of his retirement, which is 31.12.2013. Thus, in view of this position, respondent No.3 was having no lawful authority to pass order dated 15.01.2014 in the light of inquiry proceedings, which stood abated on the date of retirement of the petitioner, which is 31.12.2013. The learned counsel for petitioner further argued that when respondent No.3 was having no lawful authority to pass an order dated 15.01.2014 than could not deny the due salaries of the petitioners for the months of Many, 2013 to December, 2013 and an amount of leave encashment of his LPR by terming the date of his retirement as 16.03.2016 instead of 31.12.2013.

6. Learned A.A.G. appearing on behalf of official respondents fully supported to the contentions of the respondents, which they averred in their comments.

7. We have given our serious consideration to the contention of learned counsel for petitioner and as well as learned A.A.G. appearing for official respondents. We find force in the arguments of learned counsel for petitioner. It is established principle of law that any departmental inquiry proceedings, which are in progress against the civil servant stands abated on his retirement. The logic behind this principle is that departmental inquiry proceedings can be initiated only against the civil servant and he after his retirement loses his status as such. Salaries, amount of encashment of LPR and pensionary benefits are the fundamental right of civil servant, which no way can be snatched or denied to him on the mere wishes and whims of person in authority. It is established fact that the respondent No.3 has passed order dated 15.01.2014 on the basis of so-called findings of inquiry proceedings, after the retirement of petitioner. As a result of that order, he asked the concerned that petitioner be not paid salaries for the months of May 2013 to December, 2013 and amount of leave encashment of LPR . He further asked the concerned official that they may recover from the petitioner salaries paid to him w.e.f. 16.03.2013 to 31.12.2013. and he be paid pension benefits w.e.f. 16.03.2013 instead of 31.12.2013.

8. We hold that respondent No.3 order dated 15.01.2014 on the strength of which, petitioner has been deprived from his monthly salaries w.e.f. 16.03.2013 till 31.12.2013 and amount of leave encashment of LPR is without lawful authority. As he after the retirement of petitioner could not pass that order, since it was an outcome of so-called inquiry proceedings which stood abated on his retirement. As we stated hereinabove the amount in terms of salaries and leave encashment and pensionary benefits are fundamental right of petitioner and he cannot be deprived from that fundamental right without any valid and just reasons. Petitioner has been denied from his said fundamental right by respondent No.3 in blatant violation of Article 11 of the Constitution of Pakistan. It is also not out of context to mention here that respondent No.3 has passed order dated 15.01.2014 in violation of the settled principle of law that if any inquiry proceedings pending disposal before the retirement of civil servant shall stands abated on his retirement. The same act on the part of respondent No.3 is also a violation Article 5 of the Constitution of Pakistan. Article 5 of the Constitution of Pakistan clearly states that no one even the Chief Executive of this country can act in violation of the provision of Constitution and law of land.

9. As what we have discussed above, is more than sufficient for holding that order of respondent No.3 dated 15.01.2014 is not only without lawful authority but has been passed in violation of constitutional and fundamental right of petitioner in terms of Articles 11 and 5 of the Constitution. Thus, we accept this petition and direct the respondents to do needful for the payment of petitioner salaries amount w.e.f. May 2013 to December 2013 and amount of leave encashment of LPR and to consider his date of retirement as 31.12.2013, for the purpose of his pensionary benefits. ZC/302/P Petition allowed.