2023 P L C (C.S.) 1296
[Balochistan High Court (Turbat Bench)]
Before Muhammad Ejaz Swati and Muhammad Aamir Nawaz Rana, JJ
RIAZ AHMED
Versus
The GOVERNMENT OF BALOCHISTAN through Secretary Food Balochistan Civil
Secretariat, Zarghoon Road, Quetta and others
C.Ps. Nos.(T) 108 of 2021 and (T) 164 of 2022, decided on 21st November, 2022.
(a) Balochistan Employees' Efficiency and Discipline Act (VI of 2011) ---
----S.20 ---Proceedings under the Act ---Limitation ---Scope ---Petitioner challenged imposition
of penalties under the Balochistan Employees' Efficiency and Discipline Act, 2011, on the
ground that the proceedings were finalized after two years of his retirement ---Validity ---
Show cause notice was issued to petitioner in the year 2017 and thereafter the inquiry was not conducted for a considerable period; eventually in 2019 the petitioner was retired from service and even thereafter the inquiry proceedings were not completed with due vigilance and with the sincerity of purpose to bring on record the actual facts, however, penalties were imposed upon the petitioner in 2022 after lapse of statutory period of two years ---Impugned
order in which the penalties had been imposed upon the petitioner was without jurisdiction and nullity in the eyes of law ---Impugned order was set aside and the respondents were
directed to pay retirement benefits to the petitioner ---Constitutional petition was disposed of
accordingly.
Province of Puniab through Conservator of Forest, Faisalabad v. Javed Iqbal 2021
SCMR 328 rel.
(b) Balochistan Employees' Efficiency and Discipline Act (VI of 2011) ---
----S.20 ---Proceedings under the Act ---Limitation ---Scope ---Proviso to S. 20 of the Act
provides an upper limit for finalizing the departmental process against a retired employee i.e. not later than two years from the date of his retirement ---In a way, a protection has been
provided to the retired employees from indefinite proceedings against them, as it would definitely involve and engage the machinery of the department and its resources ---Further,
the retired employees who have spent best years of their lives in rendering service to their departments should enjoy peaceful retirement life instead of being dragged into infinite inquiries which might be result of ill will or any personal grudge.
Qamber Riaz for Petitioner.
Nasratullah Baloch, Assistant Advocate General for Respondents.
Date of hearing: 7th October, 2022.
JUDGMENT
MUHAMMAD AAMIR NAWAZ RANA, J. ---This common judgment shall decide
Constitution Petition No.(T) 108/2021 and Constitution Petition No.(T) 164/2022 as common
question of law and facts are involved in these petitions.
2. The petitioner has stated that he was working in the Balochistan Food Directorate and
was performing his duties as Assistant Food Controller (BPS -11), being Incharge P.R Centre,
Mand/Tumb, meanwhile the charge of Incharge P.R Centre, Turbat was also assigned to him on 18.07.2013; subsequently vide order dated 19.02.2015 the petitioner was transferred from the post of Incharge P.R Centre, Turbat and was posted as Incharge P.R Centre, Panjgur. It is the case of petitioner that on 05.10.2015 Order of Enquiry was passed by the office of Directorate of Enquiries and Anti- Corruption Establishment Balochistan, Quetta in which
allegations of selling 5,521 bags of wheat (weighing 623,118 Kg) to Flour Mills on credit were made against the petitioner. Per petitioner; he faced the inquiry and placed all the relevant record before the Inquiry Officer who, according to petitioner, was satisfied from the reply of the petitioner and subsequently, no further proceedings in that inquiry took place.
3. The petitioner says that after considerable period of more than two years, on
08.07.2017, respondent No.1 issued a Show -Cause Notice in which again the allegation was
made against the petitioner that in violation of Food Manual, 5,521 bags of wheat were sold
to Flour Mills on credit basis. The petitioner maintains that he replied to the said Show -
Cause Notice in which all the allegations were refuted. Meanwhile, no logical conclusion to the inquiry took place and on attaining the age of superannuation, the petitioner was retired from service on 08.08.2019, however, per petitioner; his retirement order was stigmatized by mentioning the same allegations of misappropriation of wheat bags, in the retirement Notification.
4. The petitioner alleged that as he was deprived from his pensionary benefits, therefore,
the petitioner filed constitution petition No.(T) 67/2020 before this Court which was disposed of vide order dated 08.09.2021, the relevant excerpt whereof is reproduced:
"The representative Mr. Muhammad Rahim Bangulzai, Deputy Director (Judicial) Food Department states that inquiry against the petitioner is pending due to shortage of wheat during his posting on two different stations, and therefore, the gratuity amount has not released. However, he states that soon after completion of inquiry and in case of his exoneration from any liability, he will get the outstanding remaining amount of his gratuity.
Learned counsel, for the time being is satisfied however, seeks appropriate directions in this behalf to direct the official respondents to expedite the pending inquiry.
Under the circumstances, the Secretary Food (respondent No.1) is directed to finally
dispose of the pending inquiry against the petitioner, as soon as possible, preferably
within two months and compliance report in this behalf shall be submitted through Registrar of this court for our perusal in chamber."
Thereafter, the inquiry was not concluded within the stipulated time, therefore the
petitioner filed Contempt Application No.01/2022 before this Court which was decided on 10.06.2022.
5. Since the petitioner had retired on 08.08.2019, therefore, the petitioner filed the above
captioned Constitution Petition No.(T) 108/2021 before this Court with the following prayer:
i. Declare that the petitioner is entitled to receive his remaining all departmental dues monthly pension.
ii. Declare the petitioner had not committed any corruption and embezzlement during his posting as Incharge P.R. Centre Turbot or Incharge P.R. Centre Panjgur, thus the impugned letter No.1- W/Acctt/Mek/2013 -14/738/41 dated 16.09.2020 (Annexure -G),
inquiry and statement of allegations through letter No.879- E.Admn:/2021/1295- 97
dated 24th September 2021, be declared as null and void.
iii. Declare the impugned act of respondents in not releasing the remaining departmental dues of petitioner as of no legal effect.
iv. Direct the respondents to make payment the remaining e departmental dues of petitioner immediately
v. Any other relief which may deem fit and proper in the circumstances of the case may also be awarded
vi. Cost of petition may also be awarded".
6. During pendency of Constitution Petition No.(T) 108/2021, despite lapse of statutory
period for completion of inquiry stipulated in the Balochistan Employees' Efficiency and Discipline Act, 2011 (hereinafter "BEEDA, 2011"), vide order dated 01.08.2022, following
penalties were imposed upon the petitioner:
"After completion of inquiry proceedings under BEEDA, 2011 with approval of the
competent authority (Secretary Food), the following penalties are imposed upon accused Riaz Ahmed Baloch Ex -Incharge PR Center Panjgoor and Turbot on account
of corruption/embezzlement of Government Wheat Stocks worth Rs. 69 million during his incumbency as Incharge PR Centers Panjgoor and Turbot.
1. Cost of embezzled wheat Rs. 69 million may be recovered from moveable and immoveable property of Riaz Baloch under "Arrears of Land Revenue Act, 1967".
2. The gratuity of the accused may be retained and recovery may be made from that.
3. 30% of the monthly pension may be deducted on monthly basis to recover the remaining outstanding amount of the embezzled amount of wheat."
The abovementioned penalties were challenged by the petitioner before this Court by
filing above captioned second Constitution Petition No.(T) 164/2022, mainly on the ground
of statutory delay with the following prayer:
1. Declare that petitioner is entitled to receive his gratuity amount and other dues.
2. Declare that the petitioner had not committed any corruption and embezzlement during his posting as Incharge P.R. Center Turbat and Punjgur thus the impugned order dated 1st August 2022 be declared as null and void.
3. Declare the impugned act of respondent for imposing major penalties is null and void.
4. Direct the respondent to make payment the departmental dues and gratuity Amount
5. Any other relief which may deem fit and proper in the circumstances of the case may also be awarded
6. Cost of petition may also be awarded".
7. Learned counsel for the petitioner contended that the petitioner has been victimized
on the basis of certain grudges by the relevant authorities. Learned counsel further contended that the petitioner had not committed any corruption and embezzlement during his posting as Assistant Food Controller/Incharge P.R Centre, Turbat and Panjgur. Learned counsel further contended that deliberately the proceedings against the petitioner were protracted without
any justification just to cause mental tension to the petitioner. While concluding his
arguments, learned counsel contended that in the relevant provisions of BEEDA, 2011, the inquiry against the retired officer had to be completed within two years of his retirement, but in the case in hand, since relevant provisions of BEEDA, 2011 were violated, therefore, the penalties imposed and inquiry against the petitioner deserves to be set aside and quashed.
8. Learned Assistant Advocate General ('AAG'), while responding to the arguments of
the petitioner's counsel submitted that the inquiry against the petitioner was conducted in accordance with law; since the petitioner was found involved in embezzlement of wheat bags, therefore, the impugned penalties are justified. On legal question of completion of inquiry within two years, learned AAG responded that since inquiry was initiated during the service of petitioner, therefore, the petitioner is not entitled for benefit of said provision of BEEDA, 2011.
The arguments of the learned counsel for the petitioner and learned AAG were heard
and the record was perused.
9. The petitioner admittedly was retired from service on 08.08.2019, while the impugned
order in which penalties have been imposed, was passed on 01.08.2022, so clearly the penalties were imposed after more than two years from the date of retirement of the petitioner. In this regard, the relevant provisions of BEEDA, 2011, dealing with the retired employees of Government, stipulates under section 1 subsection 3(e) as under:
"1. (1) This Act may be called the Balochistan Employees' Efficiency and Discipline Act, 2011.
(2) . . . . . . . . . .
(3) It shall apply to -
(a) the employees in Government service;
(b) . . . . . . . . .
(c) . . . . . . . . .
(d) . . . . . . . . .
(e) the retired employees of Government and Corporation Service: Provided that
proceedings under this Act are initiated against them during their service or within one year after their retirement".
(Emphasis provided)
Further, for the purpose of deciding these petitions, section 20 would be relevant. For
the facility of reference, same is reproduced herein below:
"20. (1) Subject to this Act, all proceedings initiated against the employees having retired from service, shall be governed by the provisions of this Act and the rules made
thereunder:
Provided that the proceedings so initiated against a retired employee shall be finalized not later than two years of his retirement "
(Emphasis Provided)
10. In BEEDA, 2011, the retired employees are only recognized or mentioned in case
there are disciplinary proceedings initiated against them and not otherwise, so an employee, who has retired for over an year and no departmental proceedings have been initiated against him, his case is not covered by BEEDA, 2011. In the same manner, the proviso to section 20 of BEEDA, 2011 provides an upper time limit for finalizing the departmental process against a retired employee i.e. not later than two years from the date of his retirement; in a way, a protection has been provided to the retired employees from indefinite proceedings against them, as it would definitely involve and engage the machinery of the department and its resources. Further, the retired employees who have spent best years of their lives in rendering service to their departments, should enjoy peaceful retirement life instead of being dragged into infinite inquiries which might be result of ill will or any personal grudge.
11. The next question which confront us is, whether the proviso provided in section 20 of
BEEDA, 2011 is directory in nature or its compliance is mandatory? In this regard, the Honourable Supreme Court of Pakistan, while interpreting section 21 of Punjab Employees' Efficiency, Discipline and Accountability Act, 2006 (which is perimetria to section 20 of BEEDA, 2011), in the case of Province of Punjab through Conservator of Forest, Faisalabad v. Javed Iqbal
1 has held its compliance "mandatory", the relevant excerpt whereof is
reproduced:
"7. At a more granular level, the effect of a qualifying proviso, according to the
ordinary rules of construction, is to quay something enacted in the preceding portion
of the enactment. The word shall, used in the proviso, is commonly construed as mandatory. The phrase not later than two years in the proviso passes for a negative phrase and gives an imperative effect. Such negative phrases or words are prohibitive in essence, and are ordinarily used as a legislative device to make a provision in a
statute mandatory. Therefore, negative words used in a provision that prescribes some
statutory requirement makes, as a general rule, that requirement mandatory even if no
penalty is prescribed for non- compliance of that requirement".
While concluding the matter, the Honourable Supreme Court has held as under:
"13. The legislative intent and the purposive interpretation of the Act read with the supportive material discussed above, it is clear that the finalization of the departmental proceedings not later than two years of the retirement of the employee under the proviso to section 21 of the Act is a mandatory provision and any proceedings after the said statutory period shall stand abated and any orders passed after the efflux of the above time period are void and have no legal effect
14. In the instant cases, the departmental proceedings against the respondent have
been finalized after a period of two years of his retirement, the departmental
proceedings, therefore, have no legal consequence and the subsequent departmental orders are void and have no legal effect. For this reason we take no exception to the impugned judgments and are of the view that they do not warrant any interference. Leave is, therefore, declined and these petitions are dismissed. For future, the Government must ensure that cases of retired employees are fast tracked so that they are concluded within the aforesaid statutory timeframe allowing the retired employees
to enjoy their retired life and the Government to save unnecessary expense and time in pursing matters against retired employees".
12. We have noted that the Show -Cause Notice had been issued to the petitioner initially
on 08.07.2017 and thereafter the inquiry was not conducted for considerable period; eventually on 08.08.2019 the petitioner was retired from service and even thereafter despite directions by this Court, the inquiry proceedings were not completed with due vigilance and with the sincerity of purpose to bring on record the actual facts, penalties were imposed upon the petitioner through impugned order dated 01.08.2022 after lapse of statutory period of two years, therefore, in the light of ibid judgment passed by Honourable Supreme Court of Pakistan, the impugned order dated 01.08.2022 in which the penalties have been imposed upon the petitioner is without jurisdiction and nullity in the eyes of law. Nevertheless, considering the conduct of the relevant officers of Balochistan Food Directorate, we deemed it appropriate to direct the Chief Secretary, Government of Balochistan to conduct inquiry with regard to delay in finalizing the inquiry against the petitioner. We hope that the Chief Secretary, Government of Balochistan would not only fix responsibility against the delinquent officers but shall initiate necessary disciplinary proceedings against them and would ensure logical end to those inquiry proceedings; further the Chief Secretary, Government of Balochistan is directed to ensure that inquiry against the retired officials/officers, if required to be initiated, be completed within the period stipulated in BEEDA, 2011.
In view of the above deliberations and direction to the Chief Secretary, Government
of Balochistan, we set aside the impugned order dated 01.08.2022 and direct the respondents
to pay gratuity amount and other amounts for which the petitioner is entitled after his retirement in accordance with law.
Copy of this judgment be sent to the Chief Secretary, Government of Balochistan for
compliance.
SA/32/Bal. Order accordingly.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,
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