2013 PLP (C (PLC(CS))

IQBAL HAMEEDUR RAHMAN, J.

The instant appeal is directed against the order dated 5th April, 2010, passed by the learned Lahore High Court, Lahore in Writ Petition No.3950 of 2010, whereby the respondent was held entitled to risk allowance and fixed daily allowance during the period of his leave preparatory to retirement (L.P.R.)

2. The succinct facts are that the respondent, who was serving in the police department, after completion of 26 years of service applied for leave preparatory to retirement (L.P.R.) w.e.f. 1st January, 2009 to 31st December, 2009 which was duly allowed. The respondent thereafter stood retired from the service on 31st December, 2009. Consequently, the pensionary dues of the respondent were calculated and were determined as Rs.3,35,

027. The appellant-department deducted Rs.81,900 from the pensionary emoluments of the respondent on the plea that he was not entitled to receive risk allowance and fixed daily allowance on account of notification dated 26th May, 2009. The same had been challenged by the respondent through Constitutional Petition before the Lahore High Court on the ground that the recovery of Rs.81,900 from the retirement emolument was without justification. It was further asserted by the learned counsel for the respondent that the appellants-department under the garb of notification dated 26th of May, 2009 has illegally made the deduction of an amount of Rs.81,900 from his pensionary emoluments. The learned Single Judge in Chambers of the High Court vide his order dated 5th of April, 2010, accepted the writ petition of the respondent and held that the respondent could not be deprived of the risk allowance and the fixed daily allowance under the garb of notification dated 26th May, 2009 and leave preparatory to retirement (L.P.R.) is of distinct nature which cannot be termed as leaves mentioned in the said notification, therefore, no authority was vested in the department to deduct the same from the pensionary emoluments of the respondent, thus, the learned High Court directed the department to pay the respondent risk allowance and fixed daily allowance which had been deducted from his pensionary emoluments. Hence, this appeal with the leave of the Court.

3. The appellants-department has assailed the order dated 5-4-2010 of the Lahore High Court before this Court by way of filing Civil Petition No.981-L of 2010, wherein this Court granted leave to appeal vide order dated 9-6-2011, to consider that the officers on LPR are not entitle to risk allowance and fixed daily allowance on account of notification dated 26th May, 2009, and further that the risk allowance and fixed daily allowance can only be given to an officer who being on duty become vulnerable to risks, because of the nature of the duties that he performs. Considering the same as a case of first impression leave was granted by this Court.

4. Learned counsel for the appellants has adverted attention of this Court to the notification dated 26th May, 2009 and has vehemently argued that the said notification, which had been issued prior to the retirement of the respondent, was duly applicable to his case on account of which the deduction of risk allowance and fixed daily allowance have been made as the respondent had duly applied for L.P.R. from the 1st January, 2009 to 31st December, 2009 for a period of full one year and the same had duly been availed by the respondent and such allowances can only be availed by a person being on duty. The benefit of risk allowance and fixed daily allowance can only be availed by the officers/officials who are on duty and if any leave is obtained by them only for a duration of 4 months the same allowance can not be availed by them. Since, the respondent has availed L.P.R. for one year on account of which he was only entitled to the same for 4 months and in this regard reliance has been placed on the notification dated 26th May, 2009.

5. On the other hand, learned counsel for the respondent has fully supported the impugned order and has emphasized that prior to his retirement the respondent was entitled to the said allowances as such no illegality has been committed by the High Court and that there is no justification for interference in the circumstances.

6. In order to appreciate the contention of the learned Additional Advocate-General and that of the respondent, the notification dated 26th May, 2009 is to be taken into consideration and the same is reproduced herein:-- "GOVERNMENT OF THE PUNJAB POLICE DEPARTMENT DATED LAHORE, THE 26 MAY, 2009 ORDER No.8904/F-I Sanction is hereby accorded to sanction the Risk Allowance @ one month pay equal to initial of the relevant pay scales to the officers/officials of the Punjab Police except to employees of the City Traffic Police and Punjab Highway Patrol w.e.f. 1-4-2009. With the introduction of the subject allowance, Special Allowances currently admissible to the employees of Elite Police Force and CID @ 40% of basic salary per month is abolished forthwith. (2) Sanction is further accorded to the Fixed Daily Allowance @ 20 days in each calendar per month except to employees of the City Traffic Police and Punjab Highways Patrol w.e.f. 1-4-2009. (3) The above package is not admissible to the following officers/officials:- (a) Under Suspension (b) Who have been made OSDs on the charge of inefficiency/ misconduct or indiscipline. (c) Who have been directed to report to Police Lines/Police Headquarters/S&GAD for inefficiency/misconduct/indiscipline on point of performance of duties. (d) When officers/official is on leave beyond 4 months, extra ordinary leave, study leave or training abroad. IGP/ EX-OFFICIO SECRETARY TO GOVERNMENT OF THE PUNJAB POLICE DEPARTMENT No. and Date Even. A copy is forwarded for information and necessary action to the:- (1) Accountant-General Punjab, Lahore (Pay Roll-III) (2) District Accounts Officers, Sheikhupura, Okara, Nankana Sahib, Kasur, Gujranwala, Gujrat, Sialkot, Narowal, M.B Din, Hafizabad, Rawalpindi, Jhelum, Chakwal, Attock, Sargodha, Khushab, Mianwali, Faisalabad, Jhang, T.T. Singh, Bhakkar, Multan, Vehari, Sahiwal, Pakpattan, Lodran, Khanewal, D.G. Khan, Layyah, Rajanpur, Muzaffargarh, Bahawalpur, Bahawal Nagar and R. Y. Khan. Sd/- Section Officer (PR) Finance Department No. and Date Even. A copy is forwarded for information and necessary action to:-- (1) All Additional Inspectors General of Police in Punjab."

7. Admittedly, the respondent went on L.P.R. on the 1st January, 2009 and duly availed the same uptil 31st December, 2009 and as per clause (d) of the notification when the officers/official is on leave beyond 4 months the risk allowance and fixed daily allowance he is not entitled to the same on account of which the appellants have rightly made the deductions from the pensionary emoluments.

8. In view of the above, we while setting aside the impugned order dated 5-4-2009 allow this appeal and hold that the respondent was only entitled to 4 months risks allowance and fixed daily allowance. However, if any deduction for the 4 months period has also been deducted from his pensionery emoluments by the department, the same may accordingly be adjusted. MWA/C-6/SC Appeal allowed.