1994 PLP (C (PLC(CS))

9. I have given anxious thought to the arguments advanced by the parties to the appeal and have perused the record.

10. The following points of vital importance warrant deliberation in this case: ‑‑ (1) Whether the appellant had exercised his option for retirement on his own volition or under coercion and fear of victimization as alleged by him? (2) Whether the appellant had sought withdrawal of his request for retirement before his LPR/retirement was notified by the authority i.e. the Conservator of Forests? (3) Whether the request for proceeding on LPR could be legally withdrawn before it was notified? (4) Whether the request for proceeding on LPR/retirement could be withdrawn after the commencement of LPR and before the actual date of retirement? (5) What would be the import of the request for withdrawal of LPR made by the appellant for the second time on 7‑4‑1991(i.e. before the actual date of retirement) with reference to the cases of disciplinary action which had, in the meantime, been initiated against him with the result that he apprehended delay in finalization of his pension and considered withdrawal of request for LPR in his best interest?

11. As regards the contention that the appellant had exercised his option for proceeding on LPR as a result of coercion, the record clearly shows that the Federal Minister, vide his private letter, dated‑19‑7‑1989 sent one Ch. Rafi to the appellant showing that the bearer of the letter would explain his own grievances verbally. The Minister urged the addressee to redress the grievance. The order, dated 18‑9‑1990 whereby the appellant was transferred from Chaprar Block Sialkot Sub‑Division to Kot Nainan Block Shakargarh Sub- Division was endorsed, amongst others, by the DFO Sialkot to the Federal Minister for Law, Justice and Parliamentary Affairs, Government of Pakistan, Islamabad. for favour of his information with reference to his telephonic directions "to the undersigned on 8‑9‑1990". The arguments of the District Attorney that the telephonic talk of the Minister with DFO might not necessarily have been concerned with the appellant in question cannot be accepted particularly when the said endorsement confirms the fact that the said Minister had given certain directions about the transfer of the Foresters to the DFO, which were complied with. The surprising‑point in the whole episode is that the said Federal Minister had absolutely nothing to do with a provincial subject and his interference in provincial matters tends to confirm that he had some personal stake in the matter. The allegation of coercion made by the appellant cannot, therefore, be taken lightly particularly when the appellant sought to proceed on LPR with effect from 1‑10‑1990 vide his application dated 28‑9‑1990 i.e. only 9 days after the requisite transfer order was issued.

12. The learned District Attorney laid great stress on the point that original application, dated 23‑10‑1990 containing request of the appellant for withdrawal of his application for LPR was not genuine one as no such application was available in the record of the respondent's office and that the LPR was notified by respondent No. 2 on 3‑11‑1990 when the appellant had not till that time, made any request for withdrawal of his application for LPR. It is true that the copy of the requisite application, dated 23‑10‑1990 does not show the signatures of the recipients and this fad lends some strength to the contention of the learned District Attorney. However, as I have glanced through the relevant File No. E‑II‑6‑7/91 of the Forest Department, yet another application of the appellant, dated Nil (diarised in the office of respondent No. 1 on 9‑4‑1991 is available). This application was submitted by the appellant well before the actual date of retirement i.e. 30‑9‑1991 although after the period of LPR had commenced/notified. In this application, the appellant referred to two cases of disciplinary action initiated against him and expressed apprehension that the said enquiries might delay finalisation of his pension case with the result that if he retired from service, members of his family would be subjected to great financial crisis. Consequently, he clearly made a request that till the finalisation of those cases, the decision whereby his LPR had been notified should be withdrawn. The factum of existence of the requisite enquiry proceedings was duly verified by respondent No. 1 through correspondence at pages 90 to 100 of the aforesaid file. However, respondent No. 1 took the view that the LPR had been g‑ranted to the appellant on his own request and could not, therefore, be cancelled under the rules.

13. There is no denying the fact that the appellant had exercised his option for retirement after having rendered 29 years service at a time when he was under the coercive effect of his transfer with reference to certain directions of the Federal Minister whom the appellant had annoyed in the course of his official duties. There is, therefore, enough force in the argument that after some time say after about a month or so, the appellant might well have reconsidered his decision to proceed on retirement. The application, dated 23‑10‑1990 might not have been passed on by the DFO, Sialkot to the Conservator of Forests in view of the atmosphere in which the respondent officers might not have been able to pick up courage to retrace their steps to consider and to eventually allow withdrawal of request of the appellant for LPR. Even if the application, dated 23‑10‑1990 is not taken into account, the record of Forest Department itself shows that the appellant, in any case, made a request for the cancellation of his LPR vide his subsequent application, dated 7/9‑4‑1991 well before the actual date of his retirement from service Le. 30‑9‑1991 although after the commencement of LPR with effect from 1‑10‑1990.

14. The learned District Attorney had also referred to Finance Department's circular letter, dated ‑6‑7‑1981 (Annexure `G') to contend that the appellant could not have legally withdrawn his request for LPR. The text of the said letter is produced below for facility of discussion: ‑‑ "I am directed to say that in terms of para. 8 of FD's Circular Letter No.FD‑SR‑V‑257/67, dated 27th April, 1967 a written intimation once submitted by a Government servant who intends to retire after rendering 25 years service qualifying for pension, shall be final and shall not be allowed to be modified or withdrawn. The matter has been examined further in consultation with the Federal Government and it has been decided that in partial modification of the existing rules/orders, if a Government servant withdraws his application for voluntary retirement or modifies the date of such retirement before its acceptance by the competent authority, the application or the date of retirement shall be deemed to have been withdrawn or modified as the case may be. I am to request that this position may kindly be brought to the notice of all concerned."

15. It would be observed that under the earlier instructions circulated by Finance Department on 27‑4‑1967, a written intimation by a Government servant to proceed on retirement after 25 years service qualifying for pension used to be final and could not be allowed to be modified or withdrawn. However, under the instructions circulated on 6‑7‑1981, reproduced above, Government had decided that if a Government servant withdrew his application for voluntary retirement or modified the date of such retirement, before its acceptance by the competent Authority, the application or the date of retirement would be deemed to have been withdrawn or modified as the case may be. In this case, the appellant contends that he had sought withdrawal of his request for proceeding on retirement on 23‑10‑1990. It is also established from the record of the Forest Department that subsequently as well, the appellant had sought to modify the date of his retirement with reference to the existence of two cases of enquiries against him. The spirit of the said instructions appears to be in contrast with the view taken previously, and from 1981 onward, the basic principle would be that request for proceeding on LPR or retirement from a given date could be withdrawn or modified by the retiring official at his option/discretion, of course before its acceptance and that such a request would have to be honoured by the competent authority. It is clear that the request for LPR was made by the appellant under the fear of victimization. Even if it is assumed that the request for withdrawal of LPR, dated 23‑10‑1990 never reached the competent authority, the act of the respondent No.2 as regards issue of order allowing the appellant to proceed on LPR cannot be upheld as the request on which it was passed had not been made in exercise of free will on the part of the appellant.

16. In this case, the request for withdrawal of application for retirement made a second time i.e. 9‑4‑1991 was also well before the‑ actual date of retirement of the appellant. This Tribunal has already held in its judgment case No.320/243/83 (reported as 1984 PLC (C.S.) 1191) "Raft Ullah v. DFO, Gujrat etc." that the said appellant was competent to withdraw his earlier prayer and would continue in service. In that case the appellant had made request for withdrawal of his application for the retirement only 7 days before the actual date of retirement from service.

17. The judgment of the Punjab Service Tribunal in the aforesaid appeal was challenged by respondent‑department in Civil Appeal No.698/88, and, in their judgment, the learned Supreme Court observed as under: ‑‑ "Learned counsel for the appellants has submitted that the respondent was not entitled to withdraw his application for leave preparatory to retirement which was accepted. He relied upon a judgment titled "Secretary, Government of Punjab v. Shamoon Bahadar (PLD 1979 SC 835). Learned counsel for the respondent has submitted that in the case quoted by the learned counsel for the appellants, the departmental authority had not permitted to withdraw the application for leave preparatory to retirement after its acceptance. In the case in hand, the authority who granted the application of the respondent had allowed him to withdraw the same in the first instance. After hearing learned counsel for the parties, we find that this is not a fit case for exercise of jurisdiction under Article 185 of the Constitution. The appeal is, therefore, dismissed."

18. It would be observed that whereas the Supreme Court had in their judgment "Secretary to Government of the Punjab v. Shamoon Bahadar PLD 1979 SC 835 taken the view that the respondents i.e. the retiring official was not entitled to withdraw his application for LPR which had been accepted, in Civil Appeal No.698/88, "Forest Department v. Rafi Ullah", the learned Supreme Court observed that the Authority who granted the application of the respondent had allowed him to withdraw the same in the first instance. It was on this point that the Supreme Court did not find it a fit case for exercise of jurisdiction under Article 185 of the Constitution of Islamic Republic of Pakistan and the appeal of the Forest Department in that case was dismissed.

19. In the instant case, the competent authority did not allow the official to withdraw the request for LPR. If this were the sole premise, it would only be appropriate to follow the view taken by the learned Supreme Court in the case reported vide PLD 1979 SC 835, referred to above. That would imply rejection of this appeal. However, an additional factor has entered the arena, which tends to demolish the whole edifice built by the respondent‑department. The fact remains that the request for proceeding on LPR had virtually been extracted from the appellant under coercion.

20. There is no force in learned District Attorney's argument that the second application for withdrawal of request for retirement had been addressed to the Secretary, Forestry, Wildlife and Fisheries Department and not to the Chief Conservator of Forests (i.e. the next higher authority) against the order of retirement passed by the Conservator of Forests. The appellant made the representation to the Administrative Secretary and it was indeed for him to have passed on the representation to the proper quarters. The onus for this, if any, should, therefore, be nailed to the door of the mighty rather than the appellant who indeed appears as an oppressed person in this whole episode. I do not, therefore, give any credence to the arguments advanced by the learned District Attorney on this point.

21. In view of this additional factor in the instant case, I am of the considered view that it would be in the interest of justice if the relief is granted in this case and the impugned orders be straightaway set aside. The appeal is accordingly accepted. That being so, the period of LPR from 1‑10‑1990 right up to the date the appellant resumes charge of his post shall be treated as having been spent on duty as it has been established beyond any shadow of doubt that he had been given marching orders with mala fide intentions. H.B.T./450/Sr.P Appeal accepted.