Syed MUNIR HUSSAIN SHAH vs SECRETARY, LIVESTOCK DAIRY AND DEVELOPMENT DEPARTMENT, GOVERNMENT OF THE PUNJAB and 2 others

' The appellant, Syed Munir Hussain Shah, Director (Retired) Extension, Livestock and Dairy Development Department, Rawalpindi proceeded on retirement on 5-4-1992 on attaining the age of superannuation respondent No,1 while sending pension papers of the appellant to the D.A.O.

Rawalpindi (respondent No,3) on 5-5-1994 directed him to withhold an amount of Rs,2,56,101.99 from the pension of the appellant as it was stated to be outstanding against him. Accordingly respondent No,3 while issuing pension payment order withheld the amount of Rs,2,56,101.99 from the pensionary benefits of the appellant.

2. Aggrieved by it the appellant, after exhausting the departmental remedy brought the instant appeal against withholding the abovesaid amount from his pensionary benefits.

3. The learned counsel for the appellant contended that withholding of the amount from his pensionary benefits was against the statutory provisions contained in section 18 of the Punjab Civil Servants Act, 1974 which entitles the appellant to receive pension as prescribed under the rules. It could be only withheld if the appellant had been removed or dismissed from service. The counsel continued to state that section 18, subsection (1) of the Punjab Civil Servants Act, 1974 creates an indefeasible right in favour of a retiring civil servant to receive pension on his retirement it says that he "shall be entitled to receive pension " Obviously it cannot be denied to him except on the grounds specified in subsection (3) thereof i.e, dismissal or removal from service for reasons of discipline. These grounds are really formidable in their ramifications. The appellant admittedly does not suffer from any of these penalties. Therefore, he would have a right to get pension.

Conversely, it would mean that dismissal or removal from service of a civil servant is a condition precedent for withholding his pension. In the instant case the appellant has not been awarded any of these penalties and as such in view of the provisions of section 18(3) ibid his pension could not be withheld. Lastly the learned counsel for the Appellant placed reliance on a judgment of this Tribunal in the case of `Malik Ehsan-ul-Haq v. Government of the Punjab (1994 PLC (C.S.) 454) in this behalf.

4. The learned District Attorney submitted that Rule 1.8 of the Pension Rules nonetheless authorised withholding or withdrawing pension and that the action was taken in accordance therewith. I am afraid the rule could not be given dominance over the statutory provisions enshrined in section 18 of the Act ibid which empower withholding of pension only in the two contingencies referred to above. If those contingencies are not satisfied no such action could be taken. The corollary was that in their absence the rule might not be consistent with the statute.

5. For the foregoing reasons the impugned order of withholding pension is held to be illegal and void ab initio. Resultantly I allow the appeal, and set aside the impugned order. The appellant shall be given full pensionary benefits with effect from 5-4-1992 the date of his retirement. No order as to costs.