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Civil Petition for Leave to Appeal No. 368‑R of 1985, decided on 19th October, 1985.

(On appeal from the judgment of Punjab Service Tribunal, Lahore, dated 30‑7‑1985 in case No. 141/13 of 1985).

‑‑‑Art. 185(3)‑‑West Pakistan Civil Service Pension Rules, 1963, r.1.8(b)‑‑Punjab Civil Servants (Efficiency and Discipline) Rules, 1975‑‑Petitioner, a retired Headmaster, charged for drawing some un-authorised amounts while in service‑‑Proceedings, taken against him by Department under Efficiency and Discipline Rules, 1975, set aside by Service Tribunal with direction that Department could proceed against him under Pension Rules, 1963‑‑Proceedings taken by Department under Pension Rules, 1963, held, would be in continuation of same action commenced under Efficiency and Discipline Rules, and would not be hit by time bar prescribed in r. 1.8(b) of Pension Rules, 1963‑‑Mere change of provision of law mentioned in two proceedings, would not have effect of changing character of action taken by Government‑‑Since petitioner did not agitate matter after decision of Tribunal that Department could proceed against petitioner under Pension Rules, further proceedings were taken by Government in pursuance of earlier action‑ Leave to appeal refused.

S. Safdar Hussain Advocate‑on‑Record, for Petitioner.

Nemo for Respondent.

Date of hearing: 19th October, 1985.

‑‑Syed Nasir Ali Shah, petitioner, was in the service of the Government of Punjab and was Headmaster, Government Hatim High School, Kumharpura, Lahore, when on attaining the age of superannuation, he retired from service on 28th August, 1982.

2. On 10th March, 1983, the petitioner was served with a charge -sheet alleging drawing of unauthorised amounts etc. As the proceedings pursuant to the charge‑sheet were being held under the Punjab Civil Servants (Efficiency and Discipline) Rules, the petitioner challenged the legality thereof by filing an appeal before the Punjab Service Tribunal, Lahore. This appeal was accepted vide order dated 12th January, 1984, in which the Tribunal held by consent of the parties that the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, were not attracted in the case of the petitioner as he had already retired from Government service and that the proceedings could be taken under the West Pakistan Civil Service Pension Rules, 1963. The penultimate paragraph of the judgment of the Tribunal reads as follows:‑

"In view (if the above circumstances, we accept the appeal, set aside proceedings so taken against him under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, with the direction that the Department can proceed under the Pension Rules if they desired so. There will be no order as to costs."

3. In pursuance of the aforesaid judgment of the Tribunal, the Director, Public Instructions (Schools), Punjab, Lahore, acting as the Authorised Officer, issued an order dated 26th February, 1984, appointing an inquiry officer to conduct inquiry against the petitioner under rule 1.8(b) of the West Pakistan Civil Service Pension Rules, 1963. This order was further amended on 13th January, 1985, in which it was ordered that reference to rule 1.8(a) of the Pension Rules may be substituted and read as rule 1.8(b).

4. The petitioner, being aggrieved by the fresh proceedings once again filed an appeal before the Punjab Service Tribunal and contended that fresh proceedings were incompetent in view of the limitation of one year from retirement imposed by rule 1.8 (b) which reads as under:‑

"(b) Government reserve to themselves the right of recovery from the pension of 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 Government pensioner."

The learned Tribunal, however, did not find force in this contention and held that the proceedings for recovery of the amount had in fact been taken and commenced on 10th March, 1983, and, therefore, the time bar prescribed in rule 1.8(b) of the West Pakistan Civil Service Pension Rules, 1963, was not attracted in the present case. The appeal of the petitioner was accordingly dismissed by the learned Tribunal vide order dated 30th July, 1985.

5. The petitioner is aggrieved with the judgment of the Tribunal and is seeking leave to appeal by means of this petition. It has been contended on his behalf by the learned counsel that the original Departmental proceedings commenced on 10th March 1983, under the Punjab Civil Servants (Efficiency and Discipline) Rules, 1975, were wholly void and were quashed by the Tribunal on an earlier occasion with the result that those proceedings cannot be relied upon for the purpose of the time bar provided in rule 1.8(b). We are not impressed by this Argument of the learned counsel and find no force in it. It appears to us that the proceedings were initially commenced within the prescribed period of one year of the petitioner having proceeded on retirement which were clearly directed towards recovering certain amounts allegedly overdrawn by the petitioner while in service from the Government funds. In the subsequent proceedings taken after the decision of the 'Service Tribunal in 1984. the same action was continued on the identical charges, except that instead of the Efficiency and Discipline Rules, the provisions of the Pension Rules were invoked. There was obviously, therefore, a continuation of the same action initially commenced in March, 1983, for recovery of losses allegedly sustained by the Government as a result of petitioner's action. We are of the view that mere change of the provisions of law mentioned in the two proceedings, does not have the effect of changing the character of the action taken by the Government and it cannot be argued that the proceedings for the recovery were being instituted after more than a year from the date of the retirement of the petitioner. The argument at best is highly technical and in substantial. The perusal of the language of rule 1.8(b) also fully supports this view, in that there is no mention of the nature of the departmental proceedings and the provisions of law under which the same are to be instituted. Additionally in the previous judgment the Tribunal did not in effect quash the entire action taken against the petitioner but directed that the department may proceed against the petitioner under the Pension Rules. The petitioner did not agitate this matter further and the matter, therefore, rested at that with the result that further proceedings were taken by the Government in pursuance of the earlier action.

6. It appears that the inquiry instituted against the petitioner is still pending and has not been finally concluded perhaps because of the appeal brought by the petitioner before the Service Tribunal. Learned counsel for the petitioner expressed the apprehension that if the inquiry is not concluded at an early date, the petitioner would continue to suffer inconvenience and deprivation of pension benefits, as it seems that no pension is being paid to him. We would, therefore, like to observe that the department may proceed further with the inquiry and conclude it expeditiously in the interest of both parties.

7. With the aforesaid observations and for the reasons mentioned above, this petition is dismissed.

M. Y. H. Leave refused.

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