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Petitioner: Syed RAZA MEHDI BAQARI VS Respondent: PROVINCE OF PUNJAB through Secretary, LG & CD DepartmentHonorable Justice Abid Aziz SheikhJunaid Jabbar Khan,Barrister Khalid Waheed Khan
2016 P L C (C.S.) 1046
[Lahore High Court]
Before Abid Aziz Sheikh, J
Syed RAZA MEHDI BAQARI
Versus
PROVINCE OF PUNJAB through Secretary, LG & CD Department and 2 others
W.P. No.39142 of 2015, heard on 2nd February, 2016.
(a) Punjab Employees Efficiency, Discipline and Accountability Act (XII of 2006)---
----Ss. 1(4)(iii) & 21---Retirement of an employee---Penalty, imposition of---Scope---Inquiry against employee was initiated after his retirement which could not be concluded within two years after his retirement---Contention of employee was that after two years from retirement the inquiry proceedings would become abated and competent authority would become functus officio---Validity---Time prescribed under proviso to S.21 of Punjab Employees Efficiency, Discipline and Accountability Act, 2006 was mandatory---Impugned order was passed after prescribed limitation period of two years after retirement of employee under S.21 of Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Once two years period was lapsed and no final order was passed, provisions of Punjab Employees Efficiency, Discipline and Accountability Act, 2006 would not be applicable to the employee---After two years the proceedings initiated under Punjab Employees Efficiency, Discipline and Accountability Act, 2006 stood abated and competent authority would become functus officio and could not pass orders---Impugned orders were set aside being passed without lawful authority and of no legal effect---Government was directed to release all the retirement benefits of employee---Constitutional petition was allowed in circumstances.
PLD 1996 SC 182; M/s Super Asia Muhammad Din Sons (Pvt.) Limited through Chief Executive v. Collector of Sales Tax Gujranwala and another 2008 PTD 60; Secretary Education (Schools) Government of Punjab Lahore v. Muhammad Akhtar, Ex-Head Master 2006 SCMR 600; Sami ur Rehman v. Chief Secretary Government of Sindh and 2 others 1983 PLC (CS) 832; Parveen Javaid v. Chairman WAPDA and 5 others 2011 PLC (CS) 1527; Roshan Dani and 11 others v. WAPDA through Chairman and 3 others 2015 PLC (CS) 263 and Muhammad Siddique v. Division Forest Officer Okara 2014 PLC (CS) 253 rel.
(b) Punjab Employees Efficiency Discipline and Accountability Act (XII of 2006)---
----Ss. 2(h)(i) & 19(i)---Constitution of Pakistan, Art.199---Constitutional petition---Maintainability---Employee of Punjab Local Government Board---Jurisdiction of Service Tribunal was not available to the employee of the Board and only adequate remedy available to the employee was constitutional jurisdiction of High Court---Constitutional petition was maintainable.
Muhammad Amin and another v. Government of Punjab and others 2015 PLC (CS) 1082 rel.
(c) Punjab Employees Efficiency, Discipline and Accountability Act (XII of 2006)---
----S. 21, proviso---Word "shall" contained in S.21 of Punjab Employees Efficiency, Discipline and Accountability Act, 2006---Scope---Word "shall" used in proviso to S.21 of Punjab Employees Efficiency, Discipline and Accountability Act, 2006 would make the said provisions mandatory.
(d) Interpretation of statutes---
----Words and phrases---Word "may" would involve a choice and "shall" an order---Word "may" would become mandatory when the object of the power was to effectuate a legal right---Where time frame was prescribed to do certain act by public functionaries then same would be directory---If such act was not likely to effect the rights of any person, where public functionary was empowered to create liability or impose penalties against any person within prescribed time then time so prescribed would not be directory but mandatory.
(e) Administration of justice---
----Every person should follow the law as laid down and should not exceed the limit of law for any reasons whatsoever.
Junaid Jabbar Khan for Petitioner.
Muhammad Naeem Khan for Respondent No.3.
Barrister Khalid Waheed Khan, Assistant Advocate General for Respondent.
Date of hearing: 2nd February, 2016.
JUDGMENT
ABID AZIZ SHEIKH, J.--- This constitutional petition is directed against the order dated 9.2.2015 passed by respondent No.1 whereby major penalty under section 4(1)(b)(i) of Punjab Employees Efficiency, Discipline and Accountability Act, 2006 ("PEEDA") was imposed and order dated 26.10.2015 passed by respondent No.2 whereby departmental appeal of the petitioner was dismissed.
2. Brief facts are that Petitioner was performing his duties with Punjab Local Government Board ("Board") as Tehsil Municipal Officer ("TMO") and was compulsorily retired on 05.01.2013. After his retirement, petitioner was served with a charge sheet dated 28.01.2013 under provisions of PEEDA. The said charge sheet was replied in which allegations were denied, however, after inquiry and show cause notice, major penalty was finally imposed upon the petitioner on 09.02.2015 for recovery of equal share out of total loss of Rs.3,21,90,809/- under section 4(1)(b)(i) of PEEDA. The appeal filed by the petitioner was also dismissed on 26.10.2015, hence this constitutional petition.
3. Learned counsel for the petitioner argued that petitioner is employee of the Board and was proceeded under PEEDA, therefore, in view of law laid down by august Supreme Court in Muhammad Amin and another v. Government of Punjab and others (2015 PLC (CS) 1082), this constitutional petition is maintainable. He further argued that petitioner stood retired on 05.01.2013 and was charge sheeted after his retirement on 28.01.2013 and the impugned major penalty was imposed after expiry of two years of his retirement on 09.02.2015. He submits that under proviso to section 21 of PEEDA, the proceedings were to be finalized within two years of retirement and after two years, the proceedings stood abated and the competent authority also became functus officio, therefore, no order could be passed against the petitioner under PEEDA. On merits, he argued that none of the allegations against the petitioner were proved and the petitioner was only found negligent by the inquiry officer, however, the major penalty was imposed on the petitioner for recovery of equal share of total loss of Rs.3,21,90,809/-. He submits that even otherwise, the loss calculated was not actual loss suffered by department but was based on presumptions and guess work to the effect that this much amount would have been recovered from the cattle market, therefore, the said recovery being based on presumptions and surmises could not be imposed on the petitioner, especially after his retirement and lapse of statutory period prescribed under section 21 of PEEDA. He further contends that impugned order dated 09.02.2015 was passed under section 4(1)(b)(i) of PEEDA which is only applicable to in-service employees and regarding retired employees, the provision applicable was section 4(1)(c) of PEEDA which was never invoked against the petitioner. He concluded that petitioner has also been treated discriminately as the inquiry officer held both the petitioner (TMO) and then Administrator being negligent but no action whatsoever has been taken against the Administrator whereas major penalty has been imposed on the petitioner.
4. Learned counsel for respondent No.3 does not deny that petitioner being employee of Board is not a civil servant, therefore, this constitutional petition is maintainable. He however contends that there were serious allegations against the petitioner which also stood proved in inquiry proceedings, therefore, major penalty was lawfully imposed on the petitioner. On the question of limitation prescribed u/s 21 of PEEDA, he submits that after compulsory retirement on 05.01.2013, the inquiry proceedings were initiated on 28.01.2013, which were though finally concluded on 09.02.2015 after lapse of two years from the date of petitioner's retirement, however, the delay was only of few days which was also not attributable to the department. He further submits that the time limit prescribed u/s 21 of PEEDA being directory and not mandatory, impugned orders are valid and legal.
5. Learned Assistant Advocate General (Punjab) in principal supported the arguments of learned counsel for respondent No.3, however, contends that petitioner has remedy before Service Tribunal. Further submits that the provisions of section 21 of PEEDA are directory in nature as the word "shall" and not the word "must" has been used by legislation in said provision.
6. I have heard learned counsel for the parties and perused the record with their able assistance.
7. It is admitted position between the petitioners learned counsel and learned counsel for the Board that petitioner was employee of the Board and as per provision of section 2(h)(i) read with section 19(1) of PEEDA, the jurisdiction of Service Tribunal is not available to such employees. In the circumstances, the constitutional jurisdiction is the only adequate remedy available as per law laid down by the august Supreme Court in Muhammad Amin and another v. Government of Punjab and others supra, therefore, this constitutional petition is maintainable.
8. The primary legal question involved in this case is whether after lapse of two years from date of petitioner's retirement on 05.01.2013, major penalty could be imposed on 09.02.2015 under PEEDA, notwithstanding the proviso to section 21 of the PEEDA. It is not disputed that petitioner stood retired on 05.01.2013 and inquiry was initiated against him on 28.01.2013 and final order of major penalty was passed on 09.02.2015, which was almost 40 days beyond limitation period of two years prescribed under proviso to section 21 of the PEEDA. The contention of the petitioner is that the provision of section 21 of PEEDA being mandatory, after two years the proceedings were abated and competent authority also became functus officio. Whereas respondents are claiming that provision of section 21 of PEEDA is only directory in nature and does not affect the final order passed beyond period of two years of petitioner's retirement. In order to better appreciate respective contentions of the parties and to resolve this legal issue, it is expedient to reproduce sections 1(4)(iii) and 21 of PEEDA as under:-
1. Short title, extent, commencement and application.
This may be called the Punjab Employees, Efficiency, Discipline and Accountability Act, 2006.
(4) It shall apply to--
(iii) retired employees of government and corporation service; provided that proceedings under this Act are initiated against them during their service or within one year of their retirement.
21. Proceedings under this Act. Subject to this Act, all proceedings initiated against the employees having retired or in service, shall be governed by the provisions of this Act and the rules made thereunder:
Provided that in case of retired employee, the proceedings so initiated against him shall be finalized not later than two years of his retirement.
(2) The competent authority may, by an order in writing, impose one or more penalties specified in clause (c) of section 4, if the charge or charges are proved against the retired employee.
9. Bare perusal of section 1(4)(iii) of PEEDA shows that PEEDA will apply, if proceedings under it are initiated against retired employees of Government and Corporation during their service or within one year of their retirement. Whereas proviso to section 21 of PEEDA postulates that in case of retired employee, the proceedings so initiated "shall" be finalized not later than two years of his retirement. The word "shall" used in proviso to section 21 PEEDA is a term of art which when appears in a statute, it makes provisions mandatory. It is repeatedly held by apex Court that word "may" involve a choice and "shall" an order. Sometime even an enabling word like "may" become mandatory, when the object of the power is to effectuate a legal right. It is also settled law that where a time frame is prescribed to do certain act by public functionaries, the same is directory if such act is not likely to effect the rights of any person, however, where public functionary is empowered to create liability, or impose penalties against any person within prescribed time as in present case, then the time so prescribed is not merely directory but mandatory. In this regard, reliance is placed on (PLD 1996 SC 182) and M/s Super Asia Muhammad Din Sons (Pvt.) Limited through Chief Executive v. Collector of Sales Tax Gujranwala and another (2008 PTD 60). For above reasons, I have no manner of doubt that time prescribed in proviso to section 21 of PEEDA is mandatory. It is also mandatory for the reason that it intends to safeguard the interest of retired employees and pensioners, so that the sword of Damocles should not hang upon them for an indefinite period.
10. Besides PEEDA, various other service laws also prescribe time limit for initiating and conclusion of disciplinary proceedings against employees who are either on verge of retirement or already stood retired. The consistent view of apex Court and this Court is that time limit so prescribed under those laws are mandatory. It is expedient to cite some of such precedents and law laid down therein as under:-
(i) Secretary Education (Schools) Government of Punjab Lahore v. Muhammad Akhtar, Ex-Head Master (2006 SCMR 600) where it is held by apex Court as under:-
"The Department has failed to examine as to whether such a disciplinary inquiry could have been initiated after a lapse of one year of the retirement of the respondent and if so under what circumstances in view of the relevant pension rules"
(ii) Sami ur Rehman v. Chief Secretary Government of Sindh and 2 others (1983 PLC (CS) 832) where it is held as under:-
"If a Government servant who has been suspended pending inquiry into his conduct attain the age of superannuation before the completion of inquiry, the disciplinary proceedings against him shall abate and such government servant shall retire with full pensionary benefit and period of suspension shall be treated as period spent on duty."
(iii) Parveen Javaid v. Chairman WAPDA and 5 others (2011 PLC (CS) 1527) where it is held as under:-
"It is settled law that an employee cannot be penalized for any action which is subject-matter of an inquiry which was not completed before his retirement. Reference in this regard may also be made to rule 54-A of the Fundamental Rules of Service which provides that on attaining the age of superannuation, disciplinary proceedings which have not been completed, automatically abate and the civil servant is entitled to receive all pensionary benefits. In this regard, reference may usefully be made to the cases of Muhammad Anwar Bajwa, Executive Director, Agricultural Development Bank of Pakistan, 1-Faisal Avenue, Zero Point, Islamabad v. Chairman, Agricultural Development Bank of Pakistan, Faisal Avenue Zero Point Islamabad (2001 PLC (C.S) 336), Bilquis Nargis v. Secretary to Government of the Punjab, Education Department (1983 PLC (C.S) 1141), Syed Abdus Salam Kazmi v. Managing Director WASA, Multan and another (2005 PLC (C.S) 244), Haji Muhammad Ismail Memon Advocate Complainant's case (PLD 2007 SC 35) and Muhammad Zaheer Khan v. Government of Pakistan through Secretary, Establishment and others (2010 PLC (C.S.) 559), in which it has been held that the disciplinary proceedings against an employee must be completed before his date of retirement. An employee cannot be penalized for an action which was subject matter of an inquiry and was not completed before his retirement. Reference may also be usefully made to Muhammad Zaheer Khan v. Government of Pakistan through Secretary Establishment and others (2010 PLC (C.S.) 559).
(iv) Roshan Dani and 11 others v. WAPDA through Chairman and 3 others (2015 PLC (CS) 263) where it is held as under:-
"In view of the above all pending inquiries against an officer abates on retirement of the said Officer. This principle has been repeatedly re-affirmed by the superior Courts of our jurisdiction in Noor Ahmad Shah's case (2003 PLC (C.S.) 1400), Muhammad Anwar Bajwa's case (2001 PLC (C.S.) 336) and finally by the apex Court in Muhammad Zaheer Khan's case (2010 SCMR 1554)."
(v) Muhammad Siddique v. Division Forest Officer Okara (2014 PLC (CS) 253). In this case while interpreting provision of PEEDA, it is held as under:-
"The afore-cited provisions evince that proceedings under PEEDA may be initiated against a retired employee of government provided the same are: (i) initiated against him during his service or within one year of his retirement; and, (ii) finalized not later than two years of his retirement. The time lag inserted in the above referred provision of law is manifestly intended to safeguard the interest of the pensioners so that the sword of Damocles should not hang upon them for an indefinite period. It is an admitted fact that the petitioner stood retired as Forest Guard on 14.5.2004; the pension was sanctioned on 11.6.2004; and, the proceedings under PEEDA were initiated after a lapse of about four years, from the date of retirement, against the petitioner. In these attending circumstances the provisions of PEEDA were not applicable to the petitioner as neither the proceedings under PEEDA were initiated against him during his service nor within one year of his retirement. Thus, due to lapse of time the proceedings under the PEEDA could not be initiated against the petitioner and resultantly no punishment could be inflicted thereunder".
11. The rule of law requires that things should be done as they are required to be done or not at all. Every person in execution of law should follow strictly the law as laid down and should not exceed the limit of law for any reasons whatsoever. Admittedly in this case, the impugned order of major penalty dated 09.02.2015 was passed after prescribed period of two years limitation under section 21 of PEEDA from the date of petitioner's retirement. Once two years period was lapsed and no final order was passed, the provisions of PEEDA were not applicable to the petitioner any further in view of section 1(4)(iii) read with section 21 of PEEDA. The legal consequence was that after two years, the proceedings initiated under PEEDA stood abated and competent authority under PEEDA also became functus officio and could not pass the impugned orders.
12. In view of above discussion, the writ petition is allowed and the impugned orders are set aside being passed without lawful authority and of no legal effect. Consequently respondents are also directed to release all retirement benefits of the petitioner.
ZC/R-8/L Petition allowed.