IN THE HIGH COURT OF SINDH AT KARACHI
SUIT NO.1287 of 2006
Plaintiff: S.M. Khalid.
Through Mr. Shehensha Hussain Advocate.
Defendants: Pakistan Steel Mills Corporation (Pvt) Ltd &
others, through Mr. Akhtar Ali Mehmud,
Advocate.
Date of hearing : 17.09.2014.
Date of order : 24.09.2014
J U D G M E N T
SALAHUDDINPANHWAR-J, Instant judgment will decide Civil Suit No.1287/2006 whereby plaintiff, being employee of defendant No.1 (Pakistan Steel Mills Corporation Limited), prays as under :-
I. Declaration that the proceedings if any against the plaintiff before the Public Accounts Committee or any other enquiry proceedings against him are illegal, void and without lawful authority,
II. Declaration that defendant NO.1 is liable to pay to the plaintiff a sum of Rs.6,553,242/-
III. Direction to the defendant to pay to the plaintiff a sum of Rs.6,553,424.00.”
2. Succinctly, relevant facts are that plaintiff was working with defendant No.1 as Director (Admin & Personnel). On 15.12.1998 he was retired from service, on having attained the age of superannuation. He, being retired, was entitled to receive provident fund, gratuity, leave encashment and other dues. Defendant No.1 in the first instance demanded “no demand certificate” from its various departments, such certificate was submitted but his all outstanding dues were withheld by Defendant No.1 on the pretext that there was investigation initiated against the plaintiff regarding some irregularities, albeit no show cause notice was given to him and this aspect was communicated after six months of his retirement. The plaintiff made representation for payment of his dues but was declined on the plea that payment would be made after result of investigation, thereafter plaintiff approached Wafaqi Mohtasib, and Federal Services Tribunal by way of filing an appeal; the Tribunal by letter dated 30.06.2006 conveyed that appeal of the plaintiff stood abated and thus he should obtain relief from the forum available prior to addition of section 2-A in the Services Tribunal Act 1973. Plaintiff in para 6 claimed benefits as under:-
|
1 |
Provident fund |
|
|
a |
Own contribution |
Rs.600,000 |
|
b |
Corporation’s contribution |
Rs.600,000 |
|
c |
Interest/profit |
Rs.500,000 |
|
|
|
|
|
2 |
Gratuity for 17 years at gross pay of Rs.38,233/- |
Rs.649,961 |
|
3 |
|
|
|
a |
Encashment of 240 days leave at gross pay of Rs.38,233/- |
Rs.305,864 |
|
b |
Unavailed leave of 120 days |
Rs.152,932 |
|
|
|
|
|
4 |
Payment of lien of car |
Rs.350,000 |
|
5 |
Payment in lieu of telephone |
Rs.50,000 |
|
6 |
Profit due to delay in settlement for 9 years @ 10% per annum cumulative from Jan. 1999 to December 2006. |
Rs.3,869,485
______________ |
|
|
Grand total |
Rs.7,078,242 |
3. It is further case of the plaintiff that Defendant No.1 withheld outstanding dues on the plea that matter is pending before the Public Accounts Committee (PAC) therefore his dues are being withheld. Plaintiff was approaching from pillar to the post for redressal of his grievance but all in vain, hence cause of action accrued to plaintiff on 05.07.2006 to file this suit.
4. Summons and notices were issued to the defendants, pursuant thereto the Defendant No.1 filed written statement wherein in para 1 and 3, it is contended as under:-
“1. That it is not denied that plaintiff retired from service of the answering defendant on 15.12.1998 on attaining the age of superannuation. It is further submitted herein that furnishing of ‘No demand/Clearance Certificate’ is a requirement in accordance with the rules and regulation of the defendant and every person on attaining the age of superannuation has to file such certificate for clearance of his dues, if any.”
“3. That the proceedings / investigation in respect of the irregularities, detailed herein above, being committed by the plaintiff are underway and have not been concluded so far and for such reasons his final liability can not be determined in the absence therefore. However, without prejudice and subject to the above the details of service dues of the plaintiff and the dues recoverable from him, excluding the amounts to be determined after finalization of the investigation and decision in respect of the charges detailed herein above, is provided as under:-
DUES PAYABLE TO THE PLAINTIFF
a) Provident fund own contribution (Approx.) Rs.54,808.02
b) Corporation’s / defendnat’s contribution Rs.06,28,408.02
c) Gratuity for 17 years Rs.03,72,300.00
d) 240 days E/L encashment Rs.02,91,416.00
e) Cash payment in lieu of car Rs.02,00,000.00
GROSS TOTAL: Rs.15,46,932.04
DUES RECOVERABLE FROM THE PLAINTIFF
a) Income Tax Rs.12,500.00
b) Child transport Rs.600.00
c) Cola deduction Rs.2,000.00
TOTAL DEDUCTIONS: Rs.15,100.00
NET AMOUNT PAYABLE: Rs.15,31,832.04”
5. Out of the pleadings of the respective parties the following Issues were framed on 04.02.2009 which are as under :-
1). Whether the plaintiff is not entitled to receive his claim on account of provident fund, gratuity, fringe benefits and other dues as mentioned in para-6 of his claim?
2). Whether the proceedings if any against the plaintiff before the Public Accounts Committee or other enquiry proceedings are illegal, void and without lawful authority?
3). Whether the plaintiff is entitled for his dues as claimed by him?
4) What should the decree be?
6. The matter was referred to the Commissioner for recording of evidence and in compliance whereof plaintiff appeared before the learned Commissioner by filing affidavit-in-evidence; his examination in chief was recorded as PW-1 (Exhibit P/5) wherein he produced all relevant documents but no cross examination was held as none appeared on behalf of defendant. Thereafter Commissioner submitted report, contending therein that defendants have failed to cross examine as well produce any evidence, such report was taken on record. Worth to add that the defendant did not lead evidence so side of the defendant was closed and the matter was adjourned for final arguments.
7. Heard learned counsel for plaintiff and defendant No.1, perused available record.
8. Although, the claim and stand of the plaintiff went unchallenged yet the principle of law is that the plaintiff has to prove his own case hence mere absence of the defendants’ evidence shall not absolve the plaintiff from his / her duty to prove his / her case. Accordingly, it would be proper to examine the evidence with regard to the issues, framed in the matter. My findings on the issues with reasoning are as under:-
F I N D I N G S
Issue No.1 ‘Negative’
Issue No.2 ‘Not proved’
Issue No.3 ‘Affirmative’
Issue No.4 partly decreed.
ISSUE NO.1
Before stepping upon the merits of this Issue, I find myself compelled to say that a legitimate and legal right of a person cannot be with-held or denied except under exceptional circumstance where the authority would require to justify with-holding such legitimate and legal right of an individual. There can be no denial to the legally established position that ‘service benefits’ are the legal and legitimate entitlement of an outgoing servant.
Candidly the defendant No.1 has not brought any thing on record to justify with-holding or delaying such service benefits of the plaintiff whereas in respect of instant issue, plaintiff examined himself and produced relevant record which shows that no demand certificate was produced as Annexure A/4 which is available at page 25. Moreover, it reflects that Defendant No.1 has admitted the claim of the plaintiff to the extent of Rs.15,31,832.04. Order of the Mohtasib reflects that complaint of plaintiff was dismissed for want of jurisdiction however before Services Tribunal defendant No.1 submitted reply showing therein that plaintiff was involved in illegal disbursement of payment. Annexure “G” at page 65 which is letter issued by Ministry of Industries and Production wherein para 5 and 6 show as under:-
“5. The main hurdle in the release of legal dues of Mr. Khalid is draft audit para raised by Govt. Auditors. The PAC in its meeting held on 27 and 28 October 2000, directed this Ministry to submit the inquiry report, fix the responsibility and take action against the persons responsible for over payment of Rs.11,994 million to M/s. MLC.
6. Since resolution of the above issue is linked with the settlement / clearance of Audit para of PAC, it is requested that the requisite para may kindly be got cleared/settled with PAC at any early date to enable the affected rights which has been denied to him for want of settlement of this audit para.”
9. Besides this the para 2 and 3 of annexure G/1 at page 63 show as under :-
“2. In June 2001, the management finally constituted a four member committee to resolve this issue. The committee was unanimous that allegation of tampering the record and undue favour of back benefits to 15 reinstated officers against him is not correct. However, the committee was divided on the allegations of releasing of retention money to Rs.33.95 lacs and excess adhor/advance payment of Rs.25,00,000/- to M/s. MLC. Two out of three members of committee absolved Mr. SM Khalid from the allegation / responsibility attributed to him. The convener of the committee did not offer any comments on the divergent views of the committee members on the plea that he had no background of accounts and finance. On the recommendation of the convener, this controversial issue was referred to General Manger (Finance) who also supported the majority’s opinion regarding release of final dues to Mr. SM Khalid. Copies of the committee’s report and relevant portion of notings are placed at Annex-C & D.
3. The case for settlement of final dues of Mr. SM Khalid is hanging since long. There appears to be hardly any ground to withhold dues of Mr. SM Khalid on the basis of findings of enquiry committee report and documents available on record. Mr. SM Khalid worked in Pakistan Steel for over 20 years in various senior positions i.e. General Manager (Audit), Corporate Secretary, Director (A&P) etc and enjoyed good reputation.”
The above reflects that a committee was formed but no decision could be made due to bifurcation of committee thus mater was referred to General Mange of defendant No.1 who voted in favour of plaintiff. Moreover, benefits of plaintiff are unchallenged.
10. Besides nothing has come on record which could be taken as a ‘sufficient cause’ to delay or keep a legitimate and legal right pending for an indefinite period, except that of pendency of an inquiry. It is worth to mention here that plaintiff is an old aged person waiting for his pensionary benefits. It would be meaningful to add here that usually the people remain stuck in service (s) for service benefits and on that hope plan number of things with reference to such service benefit (s) amount. The service benefit (s) are not merely an award but it is with an objective to help an old aged person to stand well with his obligations in rest of his days because on having attained age of superannuation it is believed that such person is not fit to tackle with hard jobs. It is always the duty and obligation of the department to ensure prompt payment of all service benefit (s) to such a person as the dignity of a pensioner mostly depend upon his such benefits or use thereof. The word ‘life’ is of wider meaning. The right to life with human dignity encompasses within its fold, some of the finer facets of human civilization which make life worth-living. The defendant No.1 cannot be said to be legally justified to keep the plaintiff out of his legitimate and legal rights in name of some inquiry particularly when entitlement of plaintiff is not denied. The legitimate and legally admitted rights of a person cannot be kept hanging for an indefinite period in name of some inquiry because the result of inquiry would require resort to legal course or procedure for penal or other permissible action (s) against guilty. Therefore, the objection of the learned counsel for the defendant with reference to pending inquiry with APC is not sufficient to keep plaintiff away from his legitimate and legal entitlement particularly when claim of the plaintiff is unchallenged. At this juncture it is pertinent to mention here that failure to submission of no demand certificate could not justify the department to with-hold dues of the plaintiff where plaintiff served for 17 years. The department is always obliged to see clearance of the dues where the department is involved as guarantor or where certain benefits are with reference to ‘services’ in department. Such all claims and obligations can never be believed to be without knowledge and notice of the department therefore, there should be made a mechanism by the department to have all dues upon a retiring servant so that service benefits of a pensioner be made available after deducting / adjusting such dues. The employee and employer should not act as a king but should act positively while parting after their long journey, undertaken together. Accordingly, the Issue No.1, is answered in ‘Negative’.
ISSUE NO.2
Regarding the Issue No.2, it would suffice to say that to conduct an inquiry or have an inquiry onto any allegation of corruption or corrupt practice is not the prerogative of the authority but is legal obligation. However, the authority is always required to follow the procedure while performing any act. Such authority shall continue to stick with legal position that even, in matters of inquiry, there should be no deviation from normal course or discrimination. Having said so, what appears from the evidence of the plaintiff that he brought nothing on record to establish that there has been any illegality in initiating the inquiry by the department on an allegation of corruption of millions of rupees. In absence of such proof, the procedure of inquiry cannot be held to be illegal. Accordingly, the issue No.2 is answered as ‘not proved’.
ISSUES NO.3
In view of discussion (s) and findings on issue No.1, the issue No.3 is answered in ‘affirmative’.
ISSUE NO.4
In view of above discussions and findings on above Issues, the suit of the plaintiff is decreed to the extent of Rs.15,31,832.04 which is admitted amount while is dismissed for relief, sought with regard to prayer clause (b). Let such decree be drawn.