1998 PLP 1326 (SCMR)

SH. RIAZ AHMAD, J.

This appeal through leave of the Court is directed against the judgment and order dated 17-5-1995 delivered by the Punjab Service Tribunal, whereby it was held that in the light of section 18 of the Punjab Civil Servants Act, 1974, the Government had no authority to deduct or withhold any amount due to it from the pension of a retired Government servant and the Punjab Civil Services (Pension) Rules, providing for such deduction or recovery by the Government for its dues were nugatory in the light of the provisions of the Civil Servants Act.

2. The facts in brief are that the respondent retired from service in his capacity as Director (Extension), Livestock and Dairy Development Department, Rawalpindi on 5-4-1992 on attaining the age of superannuation. The Secretary, Livestock and Dairy Development Department, Government of the Punjab, while sending pension papers of the respondent to the District Accounts Officer, Rawalpindi directed him on 5-5-1994 to withhold an amount of Rs.2,56,101.99 from the pension of the respondent as this amount was stated to be outstanding against him. In compliance of the orders of the Secretary, the payment of the said amount was withheld from the pensionary benefits of the respondent. After exhausting his departmental remedy, the respondent preferred an appeal for the redress of his grievance before the Punjab Service Tribunal and the same was allowed vide orders impugned. Leave was granted by this Court vide order dated 7-2-1996 to consider whether the Government can recover the amount owing to it from a retired person by making deduction from his pension. 3 We have heard the learned counsel for the parties at length and have also perused the provisions of section 18 of the Punjab Civil Servants Act as well as the provisions of the Punjab Civil Services (Pension) Rules. It is settled law that in view of conflict between the rules and the statute, the latter has to section 18 of the Punjab Civil Servants Act, pension could only be withheld in the event of dismissal or removal from service of an employee. It seems that relying upon this provision, the Punjab Service Tribunal proceeded to hold that the amount of pension could not be withheld as far as a retired Government servant is concerned. In fact while deciding to hold that the pension of only a dismissed or removed employee could be withheld, the Punjab Service Tribunal lost sight of the fact that it was not a case of withholding the pension, but it was a case of deduction of the amount from the pensionary benefits, which was due to the appellant. In this view of the matter we hold that the case of withholding of pension is distinguishable from deduction of a certain amount from it if recoverable.

4. Adverting to the facts of this case, it was contended on behalf of the appellants that on the following heads the money amounting to Rs.2,56.101.99 was recoverable from the respondent:-- (i) Purchase of Rams & Bucks Rs.20,085 (ii) Cost of Carpet size 15 x 8 x 16 Rs. 3,848.60 (iii)Cost of P.O. L. according to advance para. Rs.2,32,168.39 Before proceeding further, it will be advantageous to refer to rule 1.8 of the Punjab Civil Services (Pension) Rules. Rule 1.8(b) reads as under:-- "(b) Government reserve to themselves the right of recovery from the pension of a Government pensioner on account of losses found in judicial or departmental proceedings to have been caused to Government by the negligence or fraud of such Government pensioner during his, service, provided that such departmental proceedings shall not be instituted after more than a year from the date of retirement of the Government pensioner." Rule 1.8(c) provides that if an excess amount has been pain to a retired Government servant towards his pension, such excess can be recovered. '

5. A perusal of these rules and the provisions of the Punjab Civil Servants Act, 1974 and particularly section 18 shows that they are not ii conflict with each other. In case of excess amount having been paid or in the judicial or departmental proceedings any amount found due from a retired Government servant as a result of losses caused to Government can be recovered from him. The condition precedent for such recovery is that the losses are found in judicial or departmental proceedings to have been caused to Government by the negligence or fraud of such Government pensioner. Time limit has also been C fixed for such departmental proceedings inasmuch as no such inquiry can be held after one year of the retirement of a pensioner. We are fortified in this view by a judgment of this Court reported as The Government of N.W.F.P. through the Secretary to the Government of N.-W.F.P. Communication and Works Department, Peshawar v. Muhammad Said Khan and another (PLD 1973 SC 514).

6. It was conceded before us by the Additional Advocate-General appearing on behalf of the appellants that no such inquiry was held in this case to determine the liability of the respondent. However, a half-hearted attempt was made by the learned Additional Advocate-General that correspondence had taken place between the appellants and the respondent and on one or two occasions the respondent was also summoned by the officials and he had also looked into the record. Therefore, such correspondence and the appearance of the respondent before an officer should be equated with an inquiry envisaged by rule 18(b) of the aforesaid Rules. We are afraid, we cannot agree with the learned Additional Advocate-General because the concept of inquiry is altogether distinct.

7. As a result of the above discussion, we would direct that in case the appellants are serious to recover the amount due to them from the respondent, they would initiate an inquiry to determine such liability subject to all just exceptions including that of limitation. We further direct that the inquiry shall be completed within three months under intimation to the Registrar of this Court. With this observation, the appeal is disposed of in the terms stated above. No order as to costs: A. A./P-19/S Order accordingly.