2/11/25, 12:38 AM 2024 P L C (C

2024 P L C (C.S.) 1178

[Supreme Court of Pakistan]
Present: Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi and Irfan Saadat
Khan, JJ
MUHAMMAD YOUSAF
Versus
PROVINCE OF SINDH and others
Civil Petition No. 982-K of 2021, decided on 12th June, 2024.
(Appeal against the order dated 19.04.2023 passed by the High Court of Sindh
Bench at Sukkur in C.P. No. D-1289 of 2022).
(a) Constitution of Pakistan---
----Art. 10A---Due process and fair trial---Object, purpose and scope---Due process
is a prerequisite that needs to be respected in all stratums---Right to fair trial is a
fundamental right in case of stringency and rigidity in affording such right---It is
the function, rather a responsibility of Court to protect such right, so that no
injustice and unfairness is done to anybody---Concept of natural justice is intended
to restrain arbitrary actions within the bounds of upholding and protecting
supremacy of law---Such fundamental principle is consistently and squarely
applicable to proceedings, whether judicial quasi-judicial or administrative, except
where law specifically and unambiguously excludes its application in peculiar facts
and circumstances of a case---Solitary pragmatic importance of rule of natural
justice is to prevent injustice and miscarriage of justice and ensure that justice is
not only done, but it is also manifestly and undoubtedly seen to be done.
(b) West Pakistan Civil Services Pension Rules, 1963---
----Rr. 1.8(a) & 2.11(c)---Pension---Object, purpose and scope---Withholding of
benefits---Absent without leave---Petitioner/civil servant was aggrieved of order
passed by authorities withholding pensionary benefits on the ground of his absence
from duty without leave---Order of the authorities was maintained by High Court---
Validity---Pension articulates payment of fixed amount, according to scheme of
pension in accordance with law, rules and regulations, or pension scheme in vogue,
which is recompensed on regular basis to a person on his superannuation---
Foremost and predominant strength of mind is to afford and safeguard economic
refuge and shelter and recuperate old age security---In general phenomena,
superannuation or stepping down is considered a second innings in which a retired
person aspires to live up to his highly anticipated imaginings or dreams and devote
time to his kith and kin and friends---After retirement, timely payment of pension is
considered as main source of income or livelihood---Despite serving for a long time
with sheer commitment, if pensionary benefits are delayed or denied without any
lawful justification or without assigning any reason or providing any opportunity of
hearing, it would be a very sorry state of affairs, rather an appalling and deplorable
situation for a person who performed his duties with utmost dedication and
enthusiasm throughout his career but at the eve of his retirement, he was treated

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inhumanly, coldheartedly and gets nothing on the pretext of totally misconceived

interpretation of some rule---Pension could not have been denied to petitioner/civil
servant without issuing show cause notice and providing opportunity of hearing---
Petitioner/civil servant was deprived of his pensionary benefits despite serving the
department for at least 24 years, 05 months and 15 days without adjustment of his
earned leaves---Payment of pensionary benefits are protected under the law, rules
and regulations, even in private sector, where scheme of pension in vogue is
according to the organizational/management policy---Where pension is payable, it
is a vested right and not charity, alms or donation by the employer, but a
compensation of services rendered assiduously by giving blood, sweat, toil and
tears---Supreme Court set aside order passed by High Court and the authorities
ensured payment of pension to petitioner/civil servant---Petition for leave to appeal
was converted into appeal and allowed.
Shahla Zia v. WAPDA PLD 1994 SC 693 and Haji Muhammad Ismail Memon's
case PLD 2007 SC 35 rel.
Petitioner in person.
Sagheer Abbasi, A.A.G., Hakim Ali Shaikh, A.A.G. along with Ghulam
Muhammad, Accountant Local Government, Sukkur, Khursheed Ahmed, Section
Officer, Finance Department and Sikandar Hassan, Chief Law Officer for the
Respondents.
Date of hearing: 12th June, 2024.
JUDGMENT
MUHAMMAD ALI MAZHAR, J.---This Civil Petition for leave to appeal is
directed against the Order dated 19.04.2023, passed by the learned High Court of
Sindh, Sukkur Bench, in Constitutional Petition No. D-1289 of 2022, whereby the
constitution petition filed by the petitioner for the relief of pensionary benefits was
dismissed.
2. According to the sequence of events narrated by the petitioner, he was initially
appointed as a Sanitary Worker by the Sukkur Municipal Corporation, vide Office
Order dated 14.09.1993, on leave vacancy basis and his engagement was
discontinued vide order dated 11.11.1992. However, he was re-appointed as a
sanitary worker, on a permanent basis, in SMC, Sukkur, vide order dated
14.09.1993. On 23.05.2019, he was retired from service with effect from
28.02.2018 but as a matter of fact, his date of superannuation was 06.04.2019. It
was further alleged that the absence of the petitioner with effect from 01.12.2015 to
11.01 2016 was beyond his control as during this period, he was lodged in Central
Jail due to enmity in a false case registered under Section 506/2 of the Pakistan
Penal Code, 1860. It is further contended that at least 811 earned leaves were at his
credit which were not taken into consideration and the petitioner was deprived of
his pensionary benefits without the issuance of any show cause notice or providing
any right of audience, the same being a violation of relevant pension rules. The
petitioner challenged the action of the departmental appeal in the Sindh High Court,

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Sukkur Bench, vide Constitution Petition No. D-1289/2022 but the petition was
dismissed by means of impugned order.
3. The petitioner, in-person, argued that the High Court failed to consider,
despite availability of record, that the petitioner was booked in a false criminal case
and his own son was murdered. He was also confined in jail, and if his 811 earned
leaves are taken into consideration or adjusted, there is no justification to deprive
him of the pensionary benefits. He further argued that before forfeiting the service
to make him disentitled of pension, neither any show cause notice was issued nor
was any opportunity of hearing provided. He further addressed that the High Court
ignored its own order dated 14.12.2022 which indicates that the advocate appearing
for Sukkur Municipal Corporation stated that the calculation of pensionary benefits
have been made and sent to the Auditor, Local Fund Audit Department,
Government of Sindh, for verification, but no further action was taken.
4. The learned Additional Advocate General ("AAG") referred to the concise
statement and argued that the petitioner remained absconded from duty since
28.02.2018 and his services were terminated on 23.05.2019 and thereafter he
applied for early retirement. He also referred to Rule 2.11 (c) of the West Pakistan
Civil Services Pension Rules, 1963 ("Rules"), which is related to the "Forfeiture of
past service" in case of absences from duty without leave. He also relied on Rule
1.8 (a) of the same Rules and argued that under this Rule good conduct is an
implied condition of every kind of pension. It was further averred that the
Government may withhold or withdraw a pension or any part of it if the pensioner
is convicted of a serious crime or is found to have been guilty of grave misconduct.
5. Heard the arguments. According to the Rules, Rule 1.8(a) articulates that good
conduct is an implied condition of every kind of pension and the Government may
withhold or withdraw a pension or any part of it if the pensioner be convicted of
serious crime or be found to have been guilty of grave misconduct either during or
after the completion of his service, provided that before any order to this effect is
issued, the procedure regarding imposition of the penalty of removal from service
shall be followed. In addition, thereto, under clause (b), it is provided that the
Government reserves the right of recovery from the pension on account of losses
found in judicial or departmental proceedings to have been caused to the
Government by the negligence, or fraud of such Government pensioner during his
service, provided that such departmental proceedings shall not be instituted after
more than a year from the date of retirement of the Government pensioner. While
according to clause (c), if the amount of pension granted to a Government servant
is afterwards found to be in excess of that to which he is entitled under the rules, he
shall be called upon to refund such excess. Whereas clause (d) provides that except
with the previous sanction of the Provincial Government, no pensioner shall, within
a period of two years from the date of his retirement, take part in any election or
engage in political activity of any kind. It is further elucidated that in future all
Civil Servants who are under enquiry be excluded from the enquiry proceedings
under the Civil Servants (Efficiency and Discipline) Rules, 2020, after attaining the
age of superannuation and they may be allowed full pensionary benefits as
provided under the rules. However, it has further been decided that if some
pecuniary loss caused to the Government is likely to be proved against a

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Government Servant who superannuates before the decision of the case against
him, an FIR should be lodged against him for judicial proceedings immediately after
the date of superannuation and exclusion of his name from the departmental enquiry.
Rule 2.11 of the same Rules is germane to the "Forfeiture of Past Service" wherein a
Government servant forfeits his past service in the following cases: (a) resignation of
a post unless it is to take up another post service which counts for pension; (b)
removal or dismissal from service; (c) absence from duty without leave. An
explanatory note is also appended to this Rule that "The authority which sanctions
the pension may commute retrospectively periods of absence without leave into
extraordinary leave". While Rule 2.7 relates to leaves wherein it is clearly provided
that all leave (other than extraordinary leave) counts as qualifying service for
purposes of pension.
6. According to the respondents, the service of the petitioner was forfeited due to
absence from duty without leave, but it is also a ground reality which was not
controverted that the petitioner already had 811 earned leaves at his credit which
were not counted or adjusted which seems to be a violation of the aforesaid rules in
which all leaves (other than extraordinary leaves) are to be reckoned as qualifying
service for the purposes of pension. It is also an admitted position that the
petitioner had performed his duty as a sanitary worker for 24 years, 05 months and
15 days while the threshold for pension entitlement is 25 years. A plea was taken by
the respondent that the petitioner remained absent for 16 months. When we asked
the learned AAG whether before taking this drastic action any show cause notice
was issued to the petitioner; as according to the niceties of the aforesaid rules, before
any order to this effect is issued, the procedure regarding imposition of the penalty of
removal from service shall be followed, which in our view includes the issuance of
the show cause notice, providing right of hearing and even holding of inquiry as may
be required to be conducted. However, the learned AAG, on instructions, responded
that no show cause notice was ever issued nor any right of personal hearing was
afforded to the petitioner and the action was taken without any information or
intimation to him.
7. Due process is a prerequisite that needs to be respected at all stratums. Right
to fair trial is a fundamental right. In case of stringency and rigidity in affording
this right, it is the function, rather a responsibility, of the court to protect this right
so that no injustice and unfairness is done to anybody. The concept of natural
justice is intended to restrain arbitrary actions within the bounds of upholding and
protecting the supremacy of law. This fundamental principle is consistently and
squarely applicable to the proceedings, whether judicial, quasi-judicial or
administrative, except where the law specifically and unambiguously excludes its
application in the peculiar facts and circumstances of the case. The solitary
pragmatic importance of the rule of natural justice is to prevent injustice and
miscarriage of justice, and ensure that justice is not only done, but is also
manifestly and undoubtedly seen to be done. The learned High Court also did not
advert to the crucial question that before taking such a drastic action, the petitioner
was neither issued any show cause notice nor provided any right of hearing. Had
the petitioner been provided the right to an audience and submit a reply, he could
have presented valid reasons of his absence and claimed the adjustment of his 811

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earned leaves as a matter of right permissible under the Rules. The learned High
Court, in a slipshod manner, relied on the comments of the department and
observed that the petitioner remained absconded from duty since 28.02.2018 and
his services were terminated on 23.05.2019, and thereafter he applied for his early
retirement but at the same time the learned High Court observed that the qualifying
service for pension is 25 years, while the petitioner rendered 24 years, 05 months
and 15 days, but nothing was said with regard to the adjustment of his 811 earned
leaves on his credit which were quite enough to accommodate the situation.
8. According to Article 9 of the Constitution of the Islamic Republic of Pakistan,
1973 ("Constitution"), to enjoy the protection of law and to be treated in
accordance with law is the inalienable right of every citizen and (a) no action
detrimental to the life, liberty, body, reputation or property of any person shall be
taken except in accordance with law; (b) no person shall be prevented from or be
hindered in doing that which is not prohibited by law; and (c) no person shall be
compelled to do that which the law does not require him to do. In the case of
Shahla Zia v. WAPDA (PLD 1994 SC 693), this Court held that the word "life" is
very significant as it covers all facets of human existence. The word "life" does not
mean, nor can it be restricted to, only vegetative or animal life or mere existence
from conception to death. The word "life" includes all such amenities and facilities
which a person born in a free country is entitled to enjoy with dignity, legally and
constitutionally. According to Article 3 of the Universal Declaration of Human
Rights (UDHR), everyone has the right to life, liberty and security of person, while
under Article 23, everyone has the right to work, to free choice of employment, to
just and favourable conditions of work and to protection against unemployment;
everyone, without any discrimination, has the right to equal pay for equal work;
everyone who works has the right to just and favourable remuneration, ensuring for
himself and his family an existence worthy of human dignity, and supplemented, if
necessary, by other means of social protection and everyone has the right to form
and to join trade unions for the protection of his interests. In our view, right of
accrued pension in accordance with law is also an integral part of one's lifeline for
sustenance and salvation and after serving a long period, its denial without any
lawful justification amounts to denying the right to life of a retired person who, on
attaining the age of superannuation, solely depends on his pension for his
livelihood as a source of income. The immensity of the expression "life" embedded
in the Constitution under Article 9 has a manifold and multifarious understanding
and interpretation, and it cannot be read in a restricted or limited sense, rather it
should be read in its wholeness with all the fundamental rights, privileges, and
obligations, and in case of any deprivation of lawful or accrued right, it amounts to
cause serious impairment and defacement to the right to life.
9. In the case of Haji Muhammad Ismail Memon (PLD 2007 SC 35), this Court
observed in paragraph 07 that it is a pathetic condition that Government servants,
after having served for a considerable long period during which they give their
blood and sweat to the department, had to die in a miserable condition on account
of nonpayment of pension/pensionary benefits, etc. Thus, everyone who is
responsible in any manner in delaying the case of such retired officers/official or
widows or orphan children for the recovery of pension/gratuity and G.P. Fund has

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to be penalized. In the end, this Court issued strict directions that all the
Government Departments, Agencies, and Officers deployed to serve the general
public within the limit by the Constitution as well as by the law shall not cause
unnecessary hurdle or delay in finalizing the payment of pensionary/retirement
benefits cases in future and violation of these directions shall amount to criminal
negligence and dereliction of the duty assigned to them.
10. It is well-known that the catchword "pension" articulates the payment of a
fix amount according to the scheme of pension in accordance with the law, rules
and regulations or the pension scheme in vogue which is recompensed on a regular
basis to a person on his superannuation. The foremost and predominant strength of
mind is to afford and safeguard the economic refuge and shelter and recuperate old-
age security. In general phenomena, the superannuation or stepping down is
considered a second inning in which a retired person aspires to live up to his highly
anticipated imaginings or dreams and devote time to his kith and kin and friends.
After retirement, the timely payment of pension is considered as the main source of
income for livelihood. Despite serving for a long time with sheer commitment, if
the pensionary benefits are delayed or denied without any lawful justification or
without assigning any reason or providing any opportunity of hearing, it would be a
very sorry state of affairs, rather an appalling and deplorable situation for a person
who performed his duties with utmost dedication and enthusiasm throughout his
career but at the eve of his retirement, he is treated inhumanly, coldheartedly and
gets nothing as done in this case, on the pretext of totally misconceived
interpretation of some rule, even then, the pension could not have been denied
without issuing show cause notice and providing opportunity of hearing to the
petitioner. Quite the reverse, the unfortunate petitioner has been deprived of the
pensionary benefits despite serving the department for at least 24 years, 05 months
and 15 days without adjustment of his earned leaves.
11. The payment of pensionary benefits are protected under the law, rules and
regulations even in the private sector, where the scheme of pension in vogue is
according to the organizational/management policy, so in all fairness, where the
pension is payable, it is a vested right and not charity, alms or donation by the
employer but a compensation of services rendered assiduously by giving blood,
sweat, toil, and tears. It is time and again seen in Court in various cases that after
serving for a long period, when a person reaches his superannuation and submits
his papers for starting pension, instead of fulfilling the requirements and helping
out the past employee, the department started raising unwarranted glitches or
complications to delay the pensionary benefits resting on unmerited or trivial
pretexts including financial crunch, which has nothing to do with a retired
employee. Even the widows and orphans of retired employees are faced with such a
terrible and disgraceful situation for the payment of family pension which is a right
and not charity. On the contrary, the employer is bound to process the pension
claim as soon as the pension papers are filed after fulfilling all the requisite
formalities but due to inordinate delay, this Court shows displeasure and observed
in the case of Haji Muhammad Ismail Memon (supra) that everyone who is
responsible in any manner in delaying the case of such retired officers/official or
widows or orphan children for the recovery of pension/gratuity and G.P. Fund has

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to be penalized. Under the exactitudes of pension rules and regulations, the

concerned department is obligated to immediately process the pension papers
without putting it on hold or throwing it in shelves for an unlimited period of time.
At the same time, it is also the onerous duty and obligation of the head of the
department/competent authority and all other persons in the department who are
engaged in the completion process to keep a vigilant eye in order to ensure the
swift payment of pensionary benefits without unreasonable delay for protecting and
safeguarding the interest of the retired employees and their families. They should
also remember that in the near future, they will also relish the flavor of retirement
and file their own papers for pension and step into the shoes of retired employees.
In the self-accountability process with the honest motto of not dragging the
payment of pensionary benefits of others, the persons responsible in order to
change the culture of making delays should maintain a clearheaded policy to
complete the process for pension fairly within a sensible time. If a swift process
really comes into fashion by means of their sincere efforts then hopefully, at the
time of their retirement, they may not face the same problems and hindrances that
their past colleagues faces. As the saying goes, "as you sow, so shall you reap".
12. In the wake of the above discussion, while we were setting aside the
impugned order of the learned High Court which does not reflect the correct
exposition of law and has also failed to advert to cardinal points at issue, the
learned AAG at this juncture came to rescue with other officers present in the Court
and they jointly undertook and assured us that the case of the petitioner will be
processed for grant of pension and within three weeks the payment will be made to
him after adjustment of the 811 earned leaves and submit the compliance report to
the Assistant Register of this Court at Branch Registry, Karachi, for our perusal in
Chambers. This Civil Petition is converted into appeal and disposed of accordingly.
MH/M-33/SC Appeal allowe

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