2007 PLP (C (PLC(CS))

MUHAMMAD NAWAZ ABBASI, J.

This appeal by leave of the Court has been directed against the judgment, dated 31-12-2002 passed by Punjab Service Tribunal, Lahore, whereby the appeal filed by the present appellant against his retirement under section 12(i).of Punjab Civil Servants Act, 1974, was dismissed.

2. Leave in this appeal was granted vide order, dated 1-4-2005 as under:-- "The learned counsel for the petitioner contended that: (i) The order of the premature retirement of the petitioner from the service under section 12(i) of the Punjab Civil Servants Act could not be passed by way of a penalty for which disciplinary proceedings were required to be taken; (ii) The petitioner had since been exonerated of the allegations forming subject-matter of proceedings on the basis of which he was compulsorily retired from the service as was evident from a letter dated 31-1-2004 of the Executive District Officer (Education), Rawalpindi. (2) We grant leave to appeal to consider inter alia the above points. This appeal involving short points be set down for filed hearing within a period of six months."

3. The appellant was served with a show-cause notice, issued under section 12(i) of Punjab Civil Servants Act, 1974 on 17-5-2001 to the following effect:-- "Whereas your performance and service record while serving on different positions in the Government of the Punjab has been reviewed and whereas, the Secretary Education, as the competent Authority in your case, has come to the conclusion that you appear to have outlived your utility and your further retention in the Government of the Punjab, is not in public interest. It is accordingly proposed to retire you from service under section 12(i) of the Punjab Civil Servants Act, 1974, on the following grounds:-- As per audit/Inspection report you embezzled an amount of Rs.93,519 of GHS Jhatha Hathial (Rawalpindi) while working as Incharge Headmaster of the said school. (2) Now, therefore, you are directed to show cause vis-a-vis above grounds for retirement, within seven days of the receipt of this communication, to the undersigned, as to why you should not be retired from Government Service, wider section 12(i) of the Punjab Civil Servants Act, 1974, in public interest. (3) In case you fail to submit your reply within the stipulated period, it would be presumed that you have nothing to offer in your defence and you have accepted the grounds of your retirement from service indicated at para. I above and the decision will be taken ex parte."

4. In reply to the show-cause notice the appellant denying the allegations, pleaded that he had a clean service record and there was nothing adverse against him to attract the provisions of section 12(i) of Punjab Civil Servants Act, 1974. However, the competent authority having examined the service record observed that appellant while posted as Headmaster in High School, Jatha Haithial, Rawalpindi, was found involved in embezzlement of Government funds and reviewing his performance, formed an opinion that his further retention in the Government service was not in public interest therefore, directed his retirement. The appeal filed by the appellant against the order of his retirement was dismissed by the Tribunal with the observation that the retirement in the public interest under the provisions of section 12(i) of the (ibid) Act was not questionable.

5. Learned counsel for the appellant has contended that the retirement of the appellant under section 12(i) of Punjab Civil Servants Act, 1974 on the ground which could be made basis for departmental proceedings under the Punjab Civil Servants (E&D) Rules, 1975, was not proper and legal. The learned counsel submitted that the Special Secretary (Schools), Education Department, Government of Punjab, in the review application filed by the appellant, directed to the District Education Officer (SE), Rawalpindi, for constitution of an inquiry committee and in pursuance thereof, a two member-committee consisting of Officer Incharge of District Education Office, Rawalpindi, and Senior Headmaster was constituted and this Committee having checked the record of the school as well as the concerned Bank, submitted its report that the alleged embezzlement of Government funds was withdrawn from the bank by another Headmaster, namely, Malik Muhammad Aslam (since died) and appellant was not responsible for the embezzlement of the funds in question. This Committee also reported that appellant was an honest and efficient officer and in the light of report of Inquiry Committee, the District Education Officer, Rawalpindi made the following recommendations:-- "It is submitted that District Education Officer (SE) Rawalpindi was asked vide this Office Memo. No.5087/Admn. dated 16-8-2003 to furnish a detailed report with specific recommendation. He constituted a Enquiry Committee comprising on following officers. (a) Dr. Bashir Ahmed Malik, District Education Officer (M-EE) Rawalpindi. (b) Mr. Fazal-ur-Rehman Officer Incharge (B&A) O/C the District Education Officer (W-EE) Rawalpindi. The Enquiry Committee has furnished his report, vide his No.4852-53 dated 10-11-2003 which is self-explanatory. As per enquiry report, it is revealed that: (i) The major focus of attention of the Enquiry Committee has given to the show-cause notice, issued vide No.80(E&D-I)S-227/2000, dated 17-7-2001. (ii) Mr. Atta Rabbani did not 'embezzle the amount of Rs.93,519 of F.T. fund of Government High School, Jhatta Hathial (Rawalpindi). (iii) United Bank Ltd. Dhudian Branch (1720)'s Manager has given in writing that Mr. Atta Rabbani did not sign any cheque for drawl of F.T. Fund during the period 1-1-1997 to 31-12-1999. The Bank Manager has further clarified that Malik Muhammad Askin Headmaster, signed the cheques of F.T. Fund. (iv) The tenure of DDO ships of each Headmaster for the period 1-1-1997 to 31-12-1999 is as under:

Sr.No. Name with Address Period

1. Mr. Bashir Amad HM GHS Bhall (DDO) 1-11-1996 to 28-2-1997

2. Mirza Riaz Ahmed HM GHS Jhathial 1-3-1997 to 25-6-1997

3. Mirza Riaz Ahmed HM G. Moeen-ul-Islam Rawalpindi 29-6-1997 to 28-12-1997

4. Malik Muhammad Aslam HM GHS, Jhatta Hathial 1-1-1998 to 30-4-1998

5. Ch. Atta Rabbani SST/I/C HM GHS, Jhatta Hathial (DDO) 1-5-1998 to 3-10-1998

6. Mr. Muhammad Jamil SST I/C HM GHS, Jhatta Hathial (DDO) 4-11-1998 to 3-4-1999

7. Ch. Atta Rabbani, SST/I/C HM GHS, Jhatta Hathial (DDO) 1-4-1999 to 17-5-1999

8. Mr. Muhammad Hamid Hashmi UM GHS, Jhatta Hathial 15-5-1999 to 6-4-2000 The photocopies of the cheques and statement of the concerned Bank Manager shows that the amount F.T.F. said to have been embezzled by Mr. Atta Rabbani was drawn by Malik Muhammad Aslam the then Headmaster Government H/S Jhatta Hathial District Rawalpindi now died. He utilized this amount properly. Mr. Atta Rubbani did not embezzle the amount of Rs.93,519 of F.T. Fund of Government HIS, Jhatta Hathial. It is therefore, recommended that case of Mr. Atta Rabbani may please be reviewed according to rules. The enquiry report containing 26 pages along with letter of District Education Officer (SE) Rawalpindi is enclosed herewith."

6. The learned Assistant Advocate-General in the light of the report of Inquiry Committee, has not been able to justify the retirement of the appellant on the grounds mentioned in the show-cause notice or could convince us that in the given facts an order passed by the competent authority was in the public interest.

7. The expression "public interest" implies a matter relating to the people at large, nation or a community as a whole and if the interest of general public or community is not involved in a matter, it cannot be brought within the purview of "public interest". The object of the provisions of section 12(i) of Punjab Civil Servants Act, 1974 is based on subjective consideration and requirement of "public interest" may vary from case to case, therefore, an action taken or an order passed by the competent authority must have reasonable nexus with the "public interest". However, ordinarily the Tribunal or Court is not supposed to substitute reasons for public interest and interference in the matter but this rule is subject to certain exceptions and in the service cases, the exception is that assessment of the performance of a person to judge his suitability, must not be based on the personal reason or the consideration not related to the public interest.

8. The allegation regarding embezzlement of Government funds by the appellant stood negated by the report of Inquiry Committee and similarly, the opinion of the competent authority that appellant had outlived his utility and his further retention in service was not in public interest was not based on any material or sound reasons. The retirement under section 12(i) of Punjab Civil Servants Act, 1974, is not a punishment and the order under this provision is not ordinarily interfered but the use of this power without satisfying the requirement of public interest is not proper to deprive a person from his legitimate right of service as source of earning. The learned Assistant Advocate-General has not been able to satisfy us that the report of the Inquiry Committee or the recommendation of District Education Officer, Rawalpindi, were against the record or order passed by the competent authority under section 12(i) of the Punjab Civil Servants Act, 1974 was in public interest.

9. In the light of the foregoing reasons and the circumstances of the case, we set aside the judgment of Tribunal as well as the order of retirement passed by the competent authority and direct the reinstatement of the appellant in service with the observation that departmental authority may, for the misconduct of the appellant, if any, proceed against him strictly in accordance with law. This appeal is allowed with no order as to costs. M.H./A-28/SC Appeal allowed.