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Petitioner: MUHAMMAD SIDDIQUE VS Respondent: GOVERNMENT OF PUNJABHonorable Justice S. ABDUL JABBAR KHAN
1984 P L C (C
1984 P L C (C. S.) 1025
[Service Tribunal Punjab]
Present: S. Abdul Jabbar Khan, Chairman and Abdul Hamid Chaudhry, Member
Ch. MUHAMMAD SIDDIQUE
versus
GOVERNMENT OF PUNJAB AND 2 OTHERS
Case No. 208/1677 of 1982, decided on 18th October, 1983.
Civil service
---Project Allowance during deputation period‑Granted by borrow ing agency though not mentioned in terms and conditions of deputation‑Audit and Finance Department declined sanction of Project Allowance‑Recovery ordered at belated stage‑Held Transaction being past and closed, matter cannot be re‑opened in circumstances.
Syed Jamshed Ali for Appellant. A. G. Humayun, District Attorney for Respondents.
Date of hearing :18th October, 1983.
JUDGMENT
S. ABDUL JABBAR KHAN (CHAIRMAN).‑Ch. Muhammad Siddique has flied this appeal under section 4 of the Punjab Service Tribunals Act, 1974 against Order Endorsement No. 216/P. F., dated 1st April, 1982 in which he has impleaded the Secretary to Government of Punjab, Irrigation and Power Department, Lahore, Secretary to Government of the Punjab, Finance Department, and District Accounts Officer, Muzaffargarh, as respondents.
2. By virtue of this appeal he has prayed that the Endorsement No. 216/P. F., dated 1st April, 1982 whereby respondent No. 2 has refused the grant of project allowance amounting to Rs. 24,548.06 drawn by the appel lant on deputation with Pakistan Atomic Energy Commission and further declining to approve the period of deputation from 3ist August, 1977 to 7th December, 1979 be set aside.
3. Brief facts of the case are that while appellant was serving as Sub -Divisional Officer in the Irrigation and Power Department, his services were requisitioned by name by the Pakistan Atomic Energy Commission for their project at Cheshma (Kundian, District Mianwali) where the appellant joined on 2nd September, 1974. The terms and conditions of appellant's deputation were settled and agreed upon by the Government of Punjab, Irrigation and Power Department and the borrowing agency i.e. Pakistan Atomic Energy Commission. A notification was issued vide dated 13th March, 1975. While the appellant was serving with the P. A. E. C. a project allowance was sanctioned by the said agency vide Order No. 526/75, dated 29th September, 1975. This project allowance was sanctioned at the rate of 25% of the pay subject minimum Rs. 75 and maximum Rs. 400 per mensem to all the employees posted at Kundian. This allowance was increased to Rs. 35 % vide their office order, dated 26th July, 1977 by the said borrowing agency. The appellant kept on drawing the said allowance till December, 1979 the date when he was repatriated to his parent Department i.e. Irrigation and Power Department. The total amount received by the appellant on this account is Rs. 24,548.06. The appellant was surprised on 30th December, 1980 when the Senior Accounts Officer of the P. A. E. C. issued last pay certificate in favour of the appellant showing a recovery of an amount of Rs. 24,548.06. It was found that the basis of said recovery was an objection of the Audit Wing of the P. A. E. C. to the effect that since the drawing of the Project allowance was not mentioned in the terms and conditions of appellant's deputation the payment so made to him was irregular. The appellant made a repre sentation to the P. A. E. C. on 25th March, 1981 and the matter was taken up by the P. A. E. C. with the parent Department. However, P. A. E. C. expressed clearly that the appellant was entitled to receive the project allowance and recommended for the sanction of such allowance already allowed to him. Later on the Finance Department when consulted in this matter, declined to sanction the said project allowance. However, the Finance Department decided the period of deputation may be regularized upto 3ist August, 1977.
4. We have heard the parties and have also perused the entire record of this case with the assistance of the learned District Attorney and the learned counsel for the appellant.
5. The learned counsel for the appellant has submitted that the expenditure on the project allowance was a charge to the funds of the Pakistan Atomic Energy Commission who had already agreed to incur this expenditure. According to the learned counsel for the appellant, funds involved in this matter do not pertain to Punjab Government and the sanc tion of the Provincial Government was nothing but a formality He has also made a grievance that recovery so effected from appellant's pay was illegal as such like recovery tantamount to penalty and the same could not be vested except taking recourse under the Efficiency and Discipline Rules. The learned counsel for the appellant further pointed out that the Project allowance in the terms and conditions of the deputation would not in any manner restrict the powers of the borrowing department to pay any amount extra particularly when the funds of the Provincial Government were not to be affected. In this connection he has referred to the case of Ch. Abdul Majid of this very Department who has been allowed such allowance by the borrowing agency and no action has been taken in this case to recover the money so already drawn by him. He has also men tioned the case of Ch. Nasir‑ud‑Din of this Department whose over stay on deputation with the State Cement Corporation was sanctioned by the Secretary Irrigation and Power but in the appellant case the treatment so meted out to him was discriminate.
5‑A. On the other band the learned District Attorney has laid stress on the point that as no such allowance was prescribed when the terms and conditions of the deputation of the appellant was settled, therefore, no such allowance could be allowed to him by the borrowing agency as this would be against the very conditions of his service particularly when the same borrowing agency has also made a claim though at a belated stage for the recovery of said money.
6. We have given our anxious thought to the argument so advanced by the parties before us and have given our due consideration to the pros and cons of this case in order to see whether the claim of the appellant was justified or not. The fact of the matter is that the appellant was allowed this project allowance not at his own request but by the borrowing agency as a matter of policy for good work done by their employees. We cannot remain oblivious to the fact established on record that when the Audit Department brought this to the notice of borrowing agency, the stand of the borrowing agency was positive that the allowance so given was fully justified in the case of the appellant and rather made a request that the same may be approved in order to complete the formality. We are also aware of the fact that the provincial funds were nowhere affected by this payment to the appellant and appellant had already drawn this allowance and the said matter in a manner was a transaction past and closed. We have also taken into consideration the case of Ch. Nasir‑ud‑Din and find in his case no such exception was taken and he was allowed to enjoy this allowance without any fuss. It would be important to mention Annexure 6 addressed to Secretary Irrigation and Power by the P. A. E. C. which clearly indicate the case stand taken by the appellant and also mention the case of Ch. Abdul Majid as a precedent who also remained on deputa tion with the said Commission at the same station where the appellant served. In paragraph 3 of the letter it was requested by the Commission which actually paid the amount in dispute to the appellant that this project allowance may be added to the terms and conditions of the appellant.
7. We are surprised to find that the respondent is adamant for nothing to recover the amount which does not belong to him and is trying to protect the party which in no way considers the said payment so made to the appellant as unjustified or arbitrary.
8. In view of above we have no hesitation to hold that the project allowance so received by the appellant by the borrowing agency was at the instance of the borrowing agency itself, which vide its own letter on record' has given justification of the same. We are also of the considered opinion that this is the matter which can be considered a transaction past and closed and cannot be reopened at this belated stage. We accept the appeal and set aside the impugned order of recovery and direct the respondent to refund the amount if so recovered from the appellant, during the period of litigation.
Howsoever there would be no order as costs.
M.I Appeal accepted.