2024 PLP (C (PLC(CS))

ABDUL HAMEED BALOCH, J.

This Constitutional Petition has been filed under Article 199 of the Constitution of the Islamic Republic of Pakistan ("the Constitution") with the following prayers: a. To declare that the petitioner is entitled for all his pensionary benefits and the action of official respondents for withholding and non-payment of pensionary benefits to the petitioner are unjust, without lawful basis and justification. b. To direct respondents' bank to calculate all the emoluments and made the payment to the petitioner accordingly. c. To declare that the letter dated 30.04.2021, 12.01.2021, 15.01.2021 and 30.04.2021 and audit Para No.1 of the Audit report is void, illegal and have no legal effect; d. To declare that the action of official respondents for non-payment of pensionary benefit is against the rules and regulation. e. To pass any other appropriate order, which this Honorable Court may deem fit and proper in the circumstances of the case, in the interest of justice.

2. Brief facts leading to file the instant petition are that on 11.05.2020 the petitioner was retired from Zarai Taraqiati Bank Limited as Assistant Vice President (A.V.P); after retirement the petitioner was not awarded G.P Fund, Benevolent Fund, Gratuity and other emolument as per rules and regulations of Zarai Taraqiati Bank Limited, pursuant to which he submitted an application to respondent No.2 and also addressed a letter to the Senior Vice Present Fund department of Zarai Taraqiati Bank Limited, but with no response, however the petitioner came to know that an inquiry against Ex-Manager Mr. Sikandar Ali Khosa A.V.P, Zarai Taraqiati Bank Limited Dera Murad Jamali was in progress, in pursuance whereof the then Chief Manager/Inquiry Officer recommended the dismissal of Sikandar Ali from the post of Manager and exonerated the petitioner, thereafter the office memorandum in respect of dismissal of Sikandar Ali was issued whereby it has been mentioned that the Sikandar Ali and petitioner were joint custodian of safe files of loan, are equally responsible, as such the petitioner's pensionary benefits were retained on account of missing files; that no show-cause Notice, statement of allegation in respect of conducting inquiry was ever served upon the petitioner; the petitioner submitted appeal for release of retirement benefits which is still pending. The petitioner repeatedly approached the respondents for early disposal of the appeal but the same has been kept in dormant arbitrarily without any reason. Hence, the petitioner has been left with no other option but to invoke the constitutional jurisdiction of this court with the prayers as mentioned above.

3. The respondents Nos.1 to 3 filed rejoinder and contested the petition.

4. Heard. Perused the record. The record transpires that the petitioner being an employee of Zarai Taraqiyati Bank was retired in the year 2020. The petitioner served the bank as AVP/AMO, Dera Murad Jamali Branch. After the retirement the respondents withheld the pension of the petitioner on the ground that during his posting at Dera Murad Jamali with Sikandar Ali Khoso 29 loan files have been misplaced. The authority had conducted inquiry. The Chief Manager/Inquiry officer Muhammad Riaz Khan in his report dated 14.11.2020 held Mr. Sikandar Ali responsible for missing loan files. Relevant portion reads as under: "Allegation against the accused Mr. Sikandar Ali Khoso stand proved"

5. On the recommendation of inquiry officer, the Head (HR) authority vide letter No.DPP/14-111/D.M Jamali-6(86)2021/1321, dated 30.04.2021 dismissed Mr. Sikandar Ali from service.

6. The record transpires that no inquiry has been pending against the petitioner. The inquiry officer in his report dated 14.11.2020 clearly stated that during that period the petitioner was on Ex-Pakistan leave and charge was assigned to Meer Ghulam Mustafa. The allegation against the petitioner is audit objection dated 12.01.2021.

7. Admittedly the petitioner was retired employee of the Bank. No inquiry is pending against the petitioner. The respondent withheld the pension of petitioner on the basis of audit objection but despite laps of 18th months no progress have been made in regard of audit objection.

8. Retirement benefits are not bounty; an employee earn these benefits by his long continuous service and it cannot be withheld without justification and reason. It is settled preposition of law that an employee who retire from service on attaining the age of superannuation pension being material part of it. The grant of pension cannot be refused arbitrarily and if refused it has to be in accordance with the relevant rules.

9. Under Article 9 of the Constitution, no person shall be deprived of his life and liberty save in accordance with law. The word "life" used in the above referred article carries with the right of leave, where all fundamental rights are guaranteed. The pensionary benefit are fundamental right of petitioner and he cannot be deprived from the fundamental right without any valid and just reasons. In this regard reliance is placed on the case of I.A. Sharwani v. Government of Pakistan 1991 SCMR 1041, whereby it has been observed as under: "a person who enters Government service has also something to look forward after his retirement, to what are called retirement benefits, grant of pension being the most valuable of such benefits. It is equally well-settled that pension like salary of a civil servant is no longer 'a' bounty but is a right acquired after putting in satisfactory service for the prescribed minimum period. A fortiori, it cannot be reduced or refused arbitrarily except to the extent and in the manner provided in the relevant rules. Conversely full pension admissible under the rules is not to be given as a matter of course unless the service rendered has been duly approved (See Article 470, Civil Service Regulations). It is equally well-settled that if the service has not been thoroughly satisfactory, the authority sanctioning the pension is empowered under the said Article to make such reduction in the amount as it may deem proper. This power is however exercisable only before pension is actually sanctioned"

10. The right to receive pension flows directly out of the rules applicable and not out of any order of any officer or authority. The right to receive pension by a government servant is property so as to attract Articles 23 and 24(1) of the Constitution and any illegal denial to a government servant to receive the same would affect his fundamental right granted under the said provisions of the Constitution.

11. After retirement of petitioner the respondent had no lawful authority to withheld the pensionary benefits of employee. The prolong delay in releasing pension had definitely causing great hardship to the petitioners and his family. In this regard the Hon'ble Supreme Court of Pakistan on the case of Government of N.W.F.P. v. Muhammad Said Khan PLD 1973 SC 514 held as under: "It must now be taken as well-settled that a person" who enters Government service has also something to look forward after his retirement, to what are called retirement benefits, grant of pension being the most valuable of such benefits. It is equally well-settled that pension like salary of a civil servant is no longer a bounty but is a right acquired after putting in satisfactory service for the prescribed minimum period." In this regard reliance may also be placed on the case of Muhammad Ismail Memon PLD 2007 SC 35, whereby it has been held as under:

7. It is pathetic condition that Government servants, after having served for a considerable long period during which they give their blood and sweat to the department had to die in a miserable condition on account of non-payment of pension/pensionary benefits etc. The responsibility, of course, can be fixed upon the persons who were directly responsible for the same but at the same time we are of the option that it is an overall problem mostly in every department, where public functionaries failed to play their due role even in accordance with law. Resultantly, good, governance is suffering badly. Thus everyone who is responsible in any manner in delaying the case of such retired officers/official or widows or orphan children for the recovery of pension/gratuity and G.P. Fund has to be penalized. As their such lethargic action is in violation of Articles 9 and 14 of the Constitution of Islamic Republic of Pakistan, 1973. Admittedly, it is against the dignity of a human being that he has to die in miserable condition and for about three years no action has been taken by the concerned quarters in finalizing the pension case and now to when the matter came up before the Court, for the first time, they are moving in different directions just to show their efficiency and to clear their position before the Court. Such conduct on their behalf is highly condemnable and cannot be encouraged in any manner." In view of above, the petition is allowed. The respondents are directed to release the pension and other dues/arrears/benefits of the petitioner immediately. MQ/165/Bal. Petition allowed.