1. Through instant revision petition, judgment and decree dated 18.11.2015, passed by learned Appellate Court has been assailed, whereby judgment and decree dated 18.10.2014 passed by learned trial Court was reversed.
2. Brief facts of the case, as set out in this petition, are that petitioner was in the employment of respondent department and retired in BPS-20 on 14.12.2004. During his posting as Medical Superintendent of Social Security Hospital, Gujranwala, Muhammad Anwar, Accounts Clerk of the Hospital misappropriated an amount of Rs.244,681/- and, thereafter, he absented from duty with money. The recovery proceedings were also set in motion against the petitioner, being Incharge of the Hospital at the relevant time and consequently, the amount was deducted unauthorizedly. Petitioner’s representation against the said deduction was accepted by the competent authority on 10.01.2005, and it was ordered that the amount be refunded to the petitioner. Petitioner retired from service on 14.12.2004 and his pension was sanctioned on 15.12.2004. He had been drawing his pension, however, through an order dated 09.02.2011, the respondent, in supersession of order dated 10.01.2005, directed the petitioner to deposit the amount which had already been refunded. The petitioner made representation but of not avail. Feeling aggrieved, petitioner filed a suit for declaration with consequential relief, which was contested by the department and, out of divergent pleadings, issues were framed. Learned trial court, after recording evidence of parties and hearing the arguments, decreed the suit on 18.10.2014. Being aggrieved, respondent department filed appeal, which was accepted vide judgment and decree dated 18.11.2015. The said judgment and decree has been assailed through instant revision petition.
3. Learned counsel for the petitioner submits that in the hierarchy of department, Commissioner is final authority in respect of pension matter, who had already ordered the refund of amount, illegally recovered from the petitioner. He further submits that the element of misappropriation had already been investigated and another employee had been found responsible. He adds that after 6/7 years of retirement, the impugned coercive measures for recovery of the disputed amount could not have been taken against the petitioner, when issue had already been laid to rest by the competent authority. He contends that the impugned judgment and decree is not sustainable in the eye of law.
4. On the other hand, learned counsel for the respondent department defends the impugned judgment and decree and submits that petitioner has failed to point out any illegality or legal infirmity in the impugned judgment, thus, the same is liable to be upheld under the law.
5. Arguments heard. Record perused.
6. The operative part of impugned judgment, reads as under:
“7. Question under determination before this court is whether respondent is immune from depositing the amount shown to be un-reconciled or not. Notwithstanding issuance of Ex.P.1 letter No.SS.MP.I (228)73 9728 dated 10.01.2005 it has been noted that commissioner despite being supervisory authority of the hospital has no authority to resolve the financial issue particularly regarding audit etc. Respondent in his testimony admitted liability regarding the impugned amount during course of recording cross examination. Plea of the respondent that provision of PEEDA Act, 2006 absolve matter from any liability as the said Notifications have been issued after period of about 6/7 years and in terms of Section 1 of the PEEDA Act, 2006 proceedings can be initiated against a government employee within one year of his retirement and not thereafter. In my humble view that provision mentioned supra are not applicable to the present circumstances as proceedings against the respondent are not going to be initiated under the said Act but he has been required to pay back money encashed by him and remained un-reconciled and was ordered to be deducted by the competent Auditing authority. Relevant provision of law applicable to the circumstances of the case of the section 3(2) of Punjab Civil Services Tribunal Act, 1974 which reads as under:
“The tribunal shall have exclusive jurisdiction in relation to matters relating to the terms and conditions of service of civil servants including disciplinary matters.”
8. Plea of the respondent that no notice was given to him before issuance of office order No.SS.MP.I(228)/73/1494 dated 09.02.2011 Ex.P.3 and he was condemned unheard and consequently unheard is concerned, Ex.P3 is based upon audit para maintained by the concerned authority and as such, there was no requirement to issue the notice to the respondent/ plaintiff as Ex.P.3 tantamount to intimation regarding this recovery of embezzlement which was ordered to be deducted by the concerned auditing team. Respondent/plaintiff by all means was responsible to owed funds/money used during his tenure. The observations and findings recorded by the learned trial court are reversed on this issue.”
7. Perusal of reproduced part of impugned judgment shows that learned Appellate Court, after appraisal of evidence brought on record, came to the conclusion that petitioner is responsible for the amount.
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