1970 PLP 742 (PLC)

The employee should therefore be put back to duty and if considered necessary action may be taken `de novo'. Please a knowledge receipt."

2. From the above order it appears that the respondent was discharged from service in an illegal manner and the order of the Divisional Superintendent Workshop, P. W. R., Moghalpura, Lahore was held ultra vires of the rules by the appellate authority. The charges against the respondent were also considered so flimsy that the appointing authority did, not choose to start a de novo enquiry against him although a direction to this effect was contained in the order of the appellate authority. The respon dent was therefore, re‑instated to his original job on the 28th of August 1963 but he was not paid any wages for the period for which he wag kept ;away from his duty by an illegal order.

3. The respondent was, therefore, compelled to seek his redress before the authority under the Payment of Wages Act where he succeeded. But the order was challenged before the appellate authority, which was heard by the learned District Judge, Lahore. After considering the entire merits of the case and the relevant law on the subject the learned District Judge came to the conclusion that the appeal of the petitioner had no merit and the respondent was entitled to his full wages for the period he was kept away from his duty in an illegal manner.

4. In this revision, learned counsel for the petitioner argued 'that the observation of their Lordships of the Supreme Court relied upon by the learned District Judge were not attracted to the facts of the present case as those observations applied to an employee whose case fell under clause 1(a) of Fundamental. Rules of 2044 (F. R. 54) of the Pakistan Railway, Establishment Code, Volume II. In order to appreciate this argument it will be useful ‑ at this stage to reproduce (F. R. 54):‑ "2044. (F. R. 54). Pay after re‑instatement.‑When the suspension of a railway servant is held to have been unjustified or not wholly justifiable; of when a railway servant who has been dismissed, removed or suspended is re‑instated; The revising or‑appellate authority may grant to him for the period of‑his absence from duty‑ (a) if he is honourably acquitted, the full pay to which he would have been entitled if he had not been dismissed, removed or suspended and, by an order to be separately recorded, any allowance of which he was in receipt prior to his dismissal, removal or suspension; or (b) if otherwise such proportion of such pay and ‑allowances as the revising or appellate authority may prescribe. In a case falling under clause (a), the period of absence from duty will be treated as a period spent on duty. In a case falling under clause (b), it will not be treated as a period spent on duty unless the revising or appellate authority so direct."

5. The appellate authority, in its order had clearly held that there was a serious legal flaw in the order of discharge of the respondent and, as such, it was illegal and ultra vires of the rules and he should be put back to his duty. The petitioner gave full effect to the order of the re‑instatement and also did not start a de novo enquiry against the respondent. It is, thus, clear that the respondent was exonerated of all the charges and he was honourably acquitted: When the order of his discharge was held to be illegal and he was directed to be put back to duty, that order acted retrospectively and it was not necessary that the appellate authority should have recorded a separate order regarding his pay for the period he was kept off duty. The observations of their Lordships of the Supreme Court relied upon by the learned District Judge are, therefore, fully attracted to the present case and were rightly applied.

6. The case of the respondent is on a higher level than the case of a person who is honourably acquitted after regular enquiry or trial and is re‑instated by the revising or appellate authority. The respondent was discharged from service without regular enquiry as prescribed by law and the truth of allegations for, which he was discharged "vas never put to test. Moreover, in spite of the appellate authority's indication that the regular enquiry may be started against him de novo, no effort was made by, the petitioner in the last seven years to institute a second enquiry against him. It is, thus, ‑that‑ the petitioner had no material at his disposal to substantiate the charges against the respondent which could justify any departmental action against him. I am, therefore, of the view that the case of the respondent is better than the case of the persons falling under clause (a) of Funda mental Rule 54.

7. The word `may' used in Fundamental Rule 54 for the purpose of grant of pay etc., for the period of absence from duty has to be construe, as 'shall' in the case of the person honourably acquitted and falling under clause (a). If this interpretation is not given to the word 'may' in clause (a) it willl render the entire sub‑clause (a) of Fundamental Rule 54 as wholly redundant. If the matter of pay and allowances of the persons honourably acquitted was to be left to the discretion of the revising or appellate authority, then it was not necessary to divide Fundamental Rule 54 into clauses (a) and (b). It would have been sufficient to say that the rev‑sing or appellate authority may grant to hint for the period of his absence from duty such proportion of pay and allowances as it may prescribe. But the division of Fundamental Rule 54 into clauses (a) and (b) clearly, denotes that the man who is honourably acquitted will be entitled to the full pay etc., to which he would have been entitled if he was not dismissed; removed or suspended. If the intention of rule‑making authority was to leave it to the discretion of revising or appellate authority that it may or may not give the pay and allowances to the person who had been re‑instated as a result o honourable acquittal it would not have been necessary to classify the cases under the above‑mentioned two categories. The words that the appellate authority 'may' has, therefore, to be read as 'shall' for the cases of the persons acquitted honourably.

8. I am fortified in this interpretation by the last paragraph of Fundamental Rule 54 also. In this paragraph it is laid down that in a case falling under clause (a`, the period of absence from duty will be treated as a period spent on duty. The word "will" used in this sub‑clause does not leave any option or discretion with the appellate or revising authority not to treat such a period otherwise than a period spent on duty. Once a period of absence in case of honourable acquittal is treated as a period spent on duty, the employer is bound under the law to make payment of wages to its employee for the p; rind so spent on duty.

9. As I have interpreted the word 'may' as 'shall' in Fundamental Rule 54 and the respondent employee is entitled to be treated‑as on duty throughout the period, his application for the grant of wages for the period he was illegally kept off duty was rightly allowed by the authority under the Payment of Wages Act and the learned District Judge was perfectly correct in dismissing the appeal of the petitioner. Dismissed in limine.