2020 P L C (C.S.) 969
[Balochistan High Court]
Before Rozi Khan Barrech and Muhammad Hashim Khan Kakar, JJ
SHER ZAMAN EX- ASSISTANT EXCISE AND TAXATION OFFICER (B -16),
Versus
BOARD OF REVENUE BALOCHISTAN (EXCISE AND TAXATION BRANCH)
through Member Board of Revenue -II/Secretary Excise and another
Constitution Petition No.836 of 2019, decided on 28th November, 2019.
Civil service ---
----Withholding of pension due to pendency of criminal proceedings ---Scope ---Gratuity and
pension were not bounties and an employee did earn these benefits by dint of his continuous and unblemished service ---Pension could not be withheld during the pendency of
departmental/criminal proceedings in absence of any provision in the Pension Rules ---
Receiving gratuity and pension had been treated as right to property as enshrined in Art. 9 of
the Constitution and no person could be deprived of his property save by authority of law ---
Employee had been acquitted by a competent Court of law and there was no occasion with the authorit ies to withhold his pensionary benefits ---Authorities were directed to make
payment of pensionary benefits to the petitioner, in circumstances ---Constitutional petition
was allowed accordingly.
Muhammad Ismail Memon : In the matter of PLD 2007 SC 35 rel.
Muhammad Riaz Ahmed for Petitioner.
Khalil -uz-Zaman, Addl. A.G. and Jaffar Raza Khan, Senior Special Prosecutor, NAB
for Respondents.
Date of hearing: 7th November, 2019.
JUDGMENT
ROZI KHAN BARRECH, J. ---The instant Constitutional Petition, filed unde r
Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, carries the following prayer clause: -
"It is therefore, respectfully prayed that this Honourable Court may be pleased to pass judgment in the following terms:
a) to declare that the action of official respondents for withholding and non- payment of
pensionary benefits to the petitioner are unjust, without lawful basis and jurisdiction.
b) To direct respondents to make payment of pensionary benefit to the petitioner.
c) To declare that the action of official respondents for non- payment of pensionary
benefit is against the rules and regulation.
d) To pass any other appropriate order, which this Honourable Court may deem fit and
proper in the circumstances of the case, in the interest of j ustice."
2. Relevant facts for disposal of the instant petition appears that the petitioner Sher
Zaman was performing his duties as Assistant Excise and Taxation Officer (B -16) in the
Board of (Excise and Taxation Branch) Directorate of Excise and Taxation and Anti -
Narcotics Balochistan, Quetta and retired from the service on 12.4.2018 on account of
attaining the age of superannuation. He was refused his pensionary benefits on account of his
involvement in a Reference, filed against him by the National Accountability Bureau, Balochistan.
3. We have heard Mr. Muhammad Riaz Ahmed, learned counsel for the petitioner, Mr.
Khalil -uz-Zaman Alizai, learned Additional Advocate General and Mr. Jaffar Raza Khan,
learned Senior Special Prosecutor, NAB, Balochis tan and also perused the available record.
4. The moot question which requires to be answered in the instant petition is whether a
civil servant can be deprived of his pensionary benefits merely on the basis of his involvement in a criminal case or pendenc y of an appeal against his acquittal in this Court.
This controversy has already been set at rest by this Court in a Constitutional Petition No. 992 of 2014 while holding that:
"At the very outset, it may be stated that we have come across a number of cas es,
where the civil servants have been deprived of their right of postings, promotions monthly salaries and pensionary benefits on the eve of their retirements due to pendency of enquiries with the ACEQ and NAB authorities etc. The view of Director General , QDA, that the cases of the aforesaid incumbents are to be deferred till such
time, the inquiry and the criminal proceedings are finalized, is in our opinion cannot be subscribed, because it is settled law that a person is presumed innocent until found guilty. The civil servant cannot be punished departmentally for alleged crime, which, ultimately, he may not be found guilty of by a competent Court of law after a full -
fledge trial."
5. Similarly, the Hon'ble Supreme Court in the case of "Muhammad Ismail Me mon : In
the matter of", (PLD 2007 Supreme Court 35) in Paras Nos. 4 and 7 observed as under:
"4. It may be noted that it is not only the case of late Prof. Ghazi and his wife who had died allegedly due to starvation as they had no financial resources to f eed themselves
but there are a large number of identical case of the retired government officers/officials as well as widows and their children which are being reported from time to time in the media. Predecessors of deceased government servants have to wa it
for a long period to get cleared their pension papers. It is also an admitted fact all
over the country the offices of Accountants General usually raise baseless, frivolous
and technical objections for causing delay in finalizing the pension case with u lterior
motives, of course, known to them best. However, when this case was taken up, we were informed that in the month of January, 2006, there were several pension cases pending in the office of Accountant General, Sindh, and the majority of them, have
been cleared and on the last date of hearing, it was pointed out by Mr. Fateh
Muhammad Qureshi, Deputy Accountant General that about 100 cases of pension
were still pending for clearance. He was directed to finalize these cases without any further delay. Today, he has made a categorical statements before the Court that all such cases have been cleared Mr. Zulfiqar Ali Kadri, Accountant General, Sindh, also appeared and stated the following measures have been adopted for disposal of pension and G.P. Fund case s expeditiously in future: --
7. It is pathetic condition that Government servants, after having served for a considerable long period during which they give their blood and sweat to the department had to die in a miserable condition on account of non- paym ent of
pension/pensionary benefits etc. The responsibility, of course, can be fixed upon the persons who were directly responsible for the same but at the same time we are of the opinion that it is an overall problem mostly in every department, where publi c
functionaries failed to play their due role even in accordance with law. Resultantly, good governance is suffering badly. Thus everyone who is responsible in any manner in delaying the case of such retired officers/official or widow or orphan children for the recovery of pension/gratuity and G.P. Fund has to be penalized. As their such lethargic action is in violation of Articles 9 and 14 of the Constitution of Islamic Republic of Pakistan, 1973. Admittedly, it is against the dignity of a human being that
he has to die in miserable condition and for about three years no action has been taken
by the concerned quarters in finalizing the pension case and now when the matter came up before the Court, for the first time, they are moving in different directions just to show their efficiency and to clear their position before the Court. Such conduct on their behalf is highly condemnable and cannot be encouraged in any manner."
6. Likewise, the NAB (Balochistan) has also issued Letter No.2007 / Estb/IW -
1/NAB(B)/Que tta/2469 dated 10 October 2007, wherein the following directions were
issued: -
"1. This Bureau is receiving number of complaints from different Government servants stating that their pension cases are not being processed by their departments. Invariably t hese Government servants requested for an NOC from NAB (B). National
Accountability Bureau position on such issue was clearly stated in above referred letter. It is once again clarified that NAB (B) has not issued any directions/instructions to stop the pe nsion benefits of any such individuals.
2. Foregoing in view, it is requested that necessary instructions may be issued to all the departments on this matter and all pension cases be processed by the respective departments as per rules and regulations."
7. In pursuance of the said clarification, Finance Department, had also issued certain
directions, vide Notification dated 26th November 2007, which read as under:
"Subject: PENSION CASES OF RETIRING GOVERNMENT EMPLOYEES
UNDER INVESTIGATION/INQUIRY BY NATIONAL
ACCOUNTABILITY BUREAU, BALOCHISTAN.
The undersigned is directed to refer to above cited subject and to state that the NAB (B) has clarified that they have not issued any instructions regarding with- holding
pension cases o f retiring Government employees against whom investigation/inquiry
is under process in NAB (B).
2. Explaining further the position it is intimated that if any such action would be required the concerned Department/offices will be intimated accordingly on case- to-
case basis for the purpose. However withholding of such cases may not be attributed to NAB (B), unless otherwise instructed in specific case.
3. It is added that Rule 1.8 of the Balochistan Civil Servants (Pension) Rules, 1989 clearly envisages th at good conduct is an implied condition for every kind of pension
and Government grants pension to retired employees as a reward on account of their past meritorious services. Besides under Rule 5.3(2) of the above mentioned pension rules head of departmen t/attached department/office shall certify that character,
conduct, and past services of Government Servant are such as to entitle him to the favourable consideration of Government. He shall also record there his own opinion whether the service claimed has been established or not.
4. In view of the above, it is advised that the clarification of NAB (B) be taken into consideration while processing pension cases of employees of Government of Balochistan against whom investigation/inquiries are pending before the Bureau.
However, pension sanctioning authority at its own discretion in consideration of nature/gravity and overall departmental conduct of the officer during his entire
service either withholds or process such pension cases of employees against whom inquiries are under process."
8. Gratuity and pension are not bounties. An employee earns these benefits by dint of his
long, continuous, faithful and unblemished service and it cannot be withheld during the pendency of departmental/criminal proceedings in absence of any provision in the Pension
Rules. To receive gratuity and pension is always treated as right to property, which is guaranteed under Article 9 of the Constitution and no person can be deprived of his property save by authority of law.
9. In th e instant case, though the petitioner was booked in NAB Reference No.06/2015,
yet he was acquitted by a competent Court of law after a full -fledged trial, as such, in this
background, there was no occasion with the respondents to withhold the pensionary be nefits
of petitioner in presence of clear verdicts of the superior Courts, explanation issued by the NAB authorities as well as the Finance Department, Government of Balochistan. The petition is, accordingly, allowed and the respondents as directed to make payment of the pensionary
benefit to the petitioner.
The Registrar is directed to send a copy of this judgment to the Chief Secretary, Govt.
of Balochistan with direction to circulate the same among all the administrative Secretaries
and the Head of attached Departments as well as to the Accountant General, Balochistan, for
information and compliance.
ZC/179/Bal. Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.