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Case No. 387/1948 of 1982, decided on 3rd May, 1983.

‑‑ S. 2 (b) read with Punjab Civil Servants (Efficiency and Discipline) ‑Rules, 1975, r. 2‑Retired civil servant‑No longer a civil servant‑---Cannot he proceeded against under Punjab Civil Servants (Efficiency and Discipline) Rules, 1975‑Can be processed under r. 1 (8) of Civil Service Pension Rules, 1963 for misconduct during service -West Pakistan Civil Service Pension Rules, 1963, r. 1 (8).

1980 P L C (C. S.) 232 rel.

Masud Ahmad Riaz for Appellant.

A. G. Humayun, District Attorney for Respondents.

.‑Nazir Ahmad Chaudhry has flied this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Secretary to Government of the Punjab, Education Department, Lahore and Director, Public Instruction, Punjab, Lahore, as respondents.

2. By virtue of this appeal he has prayed that the order, dated 15th August, 1981 23rd September, 1981 and the consequential proceedings as well as the final order, dated 24th June, 1982/'30th June, 1982 be set aside.

3. Brief facts of the case are that the appellant was serving as a Teacher in the Education Department and was subsequently promoted as Headmaster and stood retired from service from 8th May, 1931. After the appellant had retired from service, the disciplinary proceedings were taken against him under the Punjab Civil Servants (Efficiency and Discip line) Rules, 1975, for misconduct, and as a result of the said order the appellant was served with a charge‑sheet, dated 2nd December, 1981, by respondent No. 2, in which various allegations were levelled against him, numbering 8 in all and the crux of the charges against the appellant, was that he produced bogus degree of B. A. B. T. which belonged to another Nazir Ahmad son of Ghulam Rasul. The appellant while replying to the notice, took stand that all these charges were based on criminal case, which was registered against the appellant in the year 1959. According to the learned counsel for the appellant, he was tried by Ch. Abdul Waheed, M. I. C., Lahore, who acquitted the appellant and the appellant was reinstated in service by the Department from the date of suspension and the period of his suspension was treated as period spent on duty, vide order, dated 8th August, 1961. It was submitted that as the case stood closed once for all, it cannot be reopened after a lapse of 20 years. He also took a stand that as he was retired from service, he is no more servant under the law. Hence this appeal.

4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the, record of this case carefully with their assistance.

5. It has been submitted on behalf of the appellant that on his retirement from 8th May, 1981, he was no more a civil servant and no enquiry could be held against him under the Efficiency and Discipline Rules. For this he has relied on the judgment of this Tribunal in a reported case 1980 P L C (C. S.) 232. It has been further submitted that while the same charges were the subject of criminal proceedings against the appellant but, it was clearly held by the Magistrate 1st Class that duplicate certificates belonged to the appellant and not to any other person namely Nazir Ahmad. In view of the said judgment he was reinstated in service by the Department and the period of suspension was treated as period of duty. According to learned counsel this case would be a of double jeopardy, as he cannot be tired for the charges which have been settled through judicial process. He has also challenged the power of the authority to review the earlier order so passed by it in the year 1961 and has pleaded that the principle of locus poenitentia was also very much attracted in his case.

6. On the other hand learned District Attorney has submitted that the appellant is not being prosecuted on the old charges which were once settled by the judgment of Judicial Officer but in fact, he has himself opened the issue by applying for rectification of his date of birth from 9th May, 1921 to 9th August, 1926, and his domicile from Gujranwala to Kasur on the basis of a duplicate copy of Matriculation Certificate of one of his name‑sake whose father's name co‑incidently is the same as that of the appellant, With regard to the enquiry against a retired civil servant, it has been submitted that enquiry can be initiated against a retired civil servant within one year of his retirement under rule 1.8 (b) of Pension Rules.

7. We have given our anxious thought to the arguments so advanced by the parties and find that the charges levelled against him after his retirement mainly relate to his earlier issue which stood adjudicated by the judgment of a judicial Court, dated 19th June, 1961. Learned counsel for the appellant. has contented this stand by submitting that his applica tion was not accepted and he was retired from service on the basis of the date of birth entitled in appellant's own certificate and thus he did not derive benefit out of that application. It is also on the record that the judgment in the favour of the appellant was accepted as final. In that judgment, it was held that he did not produce any bogus certificates/ Degree and was exonerated from the said charge. However, the plea of the respondents that the appellant once again applied during service for change of domicile as well as change of date of birth; therefore, it was another ugly attempt on his‑part to substantiate his claim on the strength of bogus certificates. We have carefully looked into the stand of the respondents and find that if this issue could have been the subject matter of charge‑sheet during service of the appellant and then of course, if it was so proved, he could have been awarded major penalty, as now proposed in the charge‑sheet. The snag in the stand is that once a Government servant had retired from service, can he be proceeded under the Efficiency and Discipline Rules or not. Of course it is open to Government to invoke the Pension Rules and to see whether his pension can be forfeited or deducted for any misappropriation or any misconduct during the tenure of hi service, but we have no doubt in our mind that a retired Government servant cannot be proceeded under the Efficiency and Discipline Rules and cannot be called upon as to why he should not be imposed one of the major penalty. We wonder how the Department has proceeded in this respect and under what rules after a person has retired and segregated his connection with the service. We have also examined the definition of a civil servant, as given in section 2 of the Punjab Civil Servants Act, 1974, and the Punjab Civil Servants (E & D) Rules, 1975. We have also taken into consideration the definition of civil servant as given in the Punjab Civil Servants Act, 1974 and our interpretation to this effect is as under;

With regard to the definition as given in the Punjab Civil Servants Act, 1974, a civil servant' has been defined a person who is and has been in the civil service of the Province. This to our mind, has only been given because unless a person claims a status of a civil servant although he has been dismissed, he cannot file any appeal before this Tribunal. This definition has been given only to enable a retired, removed or terminated civil servant to come in appeal under the protection of this clause. In the Efficiency and Discipline Rules, this definition has been restricted by definition of civil servant as who is in. service in connection with the affairs of the Province or who holds a post'. This obviously means that once a civil servant is retired, removed or terminated/dismissed from service, this definition of being a civil servant will not apply to him and he would not be amenable any longer to the recourse of Efficiency and Discipline Rules. We have also looked into the Guide Book on Efficiency and Discipline Rules published by the Government itself in 1983 and find a mention, that Efficiency and Discipline Rules are applicable only to serving civil servants. Similarly in the Punjab Civil Servants Act, 1974, a civil servant is defined as a person who is holding a post under the Government. With our above analysis of the status of a civil servant, we reiterate, once again, as held by us in the earlier part of our judgment that no ex‑civil servant can be charge‑sheeted once he stands retired, removed, terminated or dismissed from service under the Efficiency and Discipline Rules. However, the affairs of his pension can be looked into in accordance with prevailing Pension Rules.

8. In view of the above we proceed to accept the appeal, set aside the impugned orders by which the appellant has been charge‑sheeted and has been called upon to appear before the Enquiry Officer and face the charges so levelled against him, after his retirement. There will be no order as to costs.

A. E. Appeal accepted.

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