1988 PLC(CS) 310

MUHAMMAD IRSHAD KHAN (MEMBER).‑‑ The relevant back‑ground giving rise to the present appeal is that the appellant then an Assistant Lineman in the Respondent‑Authority, on account of his ill‑health, made a request for premature retirement which was accepted by the competent authority and vide order dated 7‑11‑1982 he was allowed to proceed on Leave Preparatory to Retirement with effect from 1‑11‑1982 to 31‑10‑1983 and it was ordered that on expiry of the said leave, he shall stand retired from his service on 31‑10‑1983. His pension case was processed in the parent office of the appellant and was forwarded to the Budget and Accounts Department of the Respondent‑Authority. The Budget and Accounts Officer by a letter dated 24‑6‑1984 had rejected the pension claim of the appellant stating that the retirement of the appellant was due on 3‑9‑1985 on reaching the age of superannuation, and it is not understood by him how premature retirement of the appellant was ordered by the competent authority on completion of only 20 years, 7 months and 28 days' service by the appellant, hence, this appeal.

2 We have heard the learned counsel for the parties. The relevant provisions attracted to the case are rules 1 and 5 (Chapter‑III) of the WAPDA Pension Rules, 1977, which are reproduced below:‑

"1. Classification of pension.

Pensions are divided into four classes: (i) Compensation pension;

(ii) Invalid pension;

(iii) Superannuation pension; (iv) Retiring pension."

"5. Retiring pension.

A retiring pension is granted to a WAPDA employee who not being eligible for superannuation pension:‑

(i) opts to retire after 25 years qualifying service, or

(ii) is compulsorily retired from service by the Authority competent to remove him from service on grounds of inefficiency, misconduct, corruption or any other reason."

(Underlining is mine).

A plain reading of the above provisions makes it quite clear that although the appellant was not entitled to superannuation pension yet was eligible to retiring pension. The learned counsel for the Respondent‑Authority has, however, submitted that the appellant having been prematurely retired on the ground of his ill‑health, is not entitled to the retiring pension as, according to him, retiring pension is permissible only to an employee who opts to retire after twenty‑five years qualifying service or is compulsorily retired from service on the grounds of inefficiency, misconduct or corruption. It is, however, to be seen that the words "any other reason" occurring in the end of sub‑rule (11) of rule 5 ibid entitle also to an employee who is compulsorily retired from service by the competent authority for any reason other than inefficiency, misconduct or corruption and, in my view, the case of the appellant is covered by the said provision as he was compulsorily retired from service before reaching the age of superannuation by the competent authority on the ground of his ill‑health. This interpretation of the rule is in accord with the reason and justice also, for, if retiring pension can be granted to an employee retired on the grounds of inefficiency, misconduct or corruption, there is no justification for refusal of the same to an employee who retires on the ground of his ill‑health. I am, therefore, of the view that the impugned order of the Budget and Accounts Officer does not find support from the rules, on the contrary, it is violative of the rules and, therefore, cannot be sustained.

3. A preliminary objection was raised on behalf of the Respondent Authority that the appellant had not filed any departmental appeal and as such the present appeal is incompetent. The appellant claims to have filed a departmental appeal which, according to the Respondent‑Authority, was not received by them. Be that as it may, proviso (a) to section 4(1) of the Service Tribunals Act, 1973, bars an appeal to this Tribunal without availing the departmental appeal only when the relevant statute confers a right of appeal or representation to the departmental authority against the order sought to be challenged. Since there is no provision in the relevant statute providing for any departmental appeal or representation against the impugned order, it was not necessary for the appellant to avail the departmental remedy before approaching this Tribunal. Therefore, even if the appellant has filed this appeal without availing the departmental remedy it is competent and is held to be so. The preliminary objection is accordingly repelled.

4. In view of the foregoing the appeal is accepted, the impugned order is set aside and it is directed that the retiring pension shall be allowed to the appellant as permissible under' the rules.

5. No order as to costs.

6. Parties to be informed accordingly.

S.Q./394/Sr.F Appeal accepted