2001 PLP 269 (SCMR)

NAZIM HUSSAIN SIDDIQUI, J.

This appeal with leave of this. Court is directed against the judgment, dated 1-9-1997 passed by learned Federal Service Tribunal in Appeal No.295(L) of 1997.

2. Leave to appeal was granted to consider if the Fundamental Rule No.54(b) already having been declared as repugnant to Injunction' of Islam as per judgment, dated 11-11-1990 of Federal Shariat Court passed in Shariat Petition No.4/1/1988 and this finding having been affirmed by this Court through judgment, dated 2-6-1998 reported as Dr. Muhammad Islam. Instructor, Animal Husbandry In-service Training Institute, Daudzai, Peshawar District of N.-W.F.P. (1998 PLC (C.S.) 1430) could be invoked. Fundamental Rules Nos.53 and 54, which are relevant for this case are reproduced below for reference:

"F.R. No.53.--A Government servant under suspension is entitled to the following payments:-- (a) In the case of [an employee of the Armed Forces] who is liable to revert to Military duty, to the pay and allowances to which he would have been entitled had he been suspended while in military employment. (b) In the case of a Government servant under suspension, other than that specified in clause (a), he shall be entitled to full amount of his salary and all other benefits and facilities provided to him under the contract of service, during the period of his suspension. "F.R. No.54.--Where a Government servant has been dismissed or removed is reinstated, 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 or removed and, by an order to be separately recorded, any allowance of which he was in receipt prior to his dismissal/removal; or (b) if otherwise, such portion 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 sent on duty. In a case falling under clause (b), it will not be treated as period spent on duty unless the revising appellate authority so directs. Explanation.

In this rule, "revising authority" means the "authority" or "authorised Officer" as defined in the Government Servants (Efficiency and Discipline) Rules, 1973, who passes the final order on the case and not the authority who passes an order on appeal. "

3. In F. R. 53, clause (b) was substituted by the S.R.O. 1173(1)/94, dated 21-9-1994, Gazette of Pakistan, Extraordinary, Part II, dated 5-12 1994 and FR No.54 substituted by S.R.O. 718(1)/93, dated 2-8-1993 Gazette of Pakistan, Extraordinary, Part II, page No.1339. August. 22, 1993. (Effective from 30th June, 1993)."

4. The relevant facts for decision of this appeal are that the appellant previously was working as Senior Clerk, VVAPDA, Operation Division, Kot Addu, District Muzaffargarh. On 24-4-1982, F.I.R. No.31 P.S. FIA, Multan under section 161, P.P.C. read with section 5(2) of the Prevention of Corruption Act, 1947 was registered against him with an allegation of having accepted illegal gratification from one Ghulam Abbas, complainant. Vide judgment; dated. 17-10-1991 of learned Special Judge (Central) Multan, the appellant was acquitted extending him the benefit of doubt.

5. He on 8-5-1982 was suspended and reinstated on 4-11-1982. Again on 20-8-1984 he was suspended and reinstated on 20-9-1993. While reinstating, the respondent No.3, Superintending Engineer (E), WAPDA, Multan Circle, Multan ordered that nothing shall be paid to the appellant over and above the subsistence allowance already paid to him during suspension period. On the contrary, the appellant claimed that he was entitled to full dues during the suspension period and above order denying him any payment over and above the subsistence allowance, was contrary to law. He preferred departmental appeal on 11-10-1993, which was rejected on 5-6-1997. The department maintained that respondent No.3 had rightly held that the appellant was not entitled to any amount over and above the subsistence allowance already paid to him. A plea was also taken by the department that the appellant was simultaneously proceeded under WAPDA (E&D) Rules and was reverted as LDC for one year, hence was not entitled to full dues under F.R. No.54(b).

6. The matter was taken up to the Federal Service Tribunal and learned Tribunal maintained the above order and rejected the appeal by the judgment, which has been impugned in this appeal.

7. Adverting to the leave granting order, it is noted that the leave was granted to consider whether under the circumstances, Rule 54(b) could be invoked. It is significant to note that in the case of Dr. Muhammad Islam the following was observed:-- "It may also be noted that the provisions of F.R. 54(a) have been .declared un-Islamic by the Shariat Appellate Bench of the Court vide Government of N.-W.F.P. v. I.A. Sherwani and another (PLD 1994 SC 72). In other words, the F.R. 54(a) under which the appellant has been deprived of his pay and other financial benefits, does not exist on the statute book, It is admitted by the learned counsel for the parties that term "acquittal" shall be pressed into service."

8. It appears that in the case of Dr. Muhammad Islam reliance was I placed upon the case reported as Government of N.-W.F.P. v. I.A. Sherwani and another (PLD 1994 SC 72). In the latter case the Fundamental Rules under consideration was 53 and not

54. Both the rules are on the statute book. The scope of both these rules is distinct. Under the existing rule 53(b) a Government servant under suspension shall be entitled to the relief mentioned therein. In fact, since 21-9-1994 when clause (b) was substituted by S.R.O. 1173(1)/94, a Government servant under suspension shall as a matter of right, be entitled to full amount of his salary and all other benefits and facilities provided to him under the contract of service.

9. The import of F.R. No.54 (b) is that an authority may withhold part of allowance and pay of a Government servant on his reinstatement. This rule may be invoked by the departmental authority in appropriate cases. It is noted that under clause (b) of F.R. No.54, if the Government servant is not honourably acquitted and his case is not covered by clause (a) of said Rule, still the revising or appellate authority may grant to him for the period of his absence from duty such portion of such pay and allowances as it deems fit. Normally the period of absence from duty in a case covered by clause (b) is not to be treated as period spent on duty, but in deserving cases, the revising/appellate authority can so direct.

10. It is an admitted fact that the appellant was acquitted by learned Special Judge (Central), Multan from the charges which were levelled against him. This Court, in the case of Dr. Muhammad Islam has laid down a dictum that all acquittals are "honourable" and there could be no acquittal which I could be termed as "dishonourable".

11. SGA&I Department, Government of Punjab, in Curricular No.1-90/87, dated 4-2-1988 on the subject 'Treatment of period under suspension' stated:-- "It has been decided that since a person acquitted by the Court by giving him benefit of doubt has no judicial remedy available to him to get such acquittal declared as honourable, all acquittals including those based on benefit of doubt should be treated as honourable for the purposes."

12. Learned Service Tribunal declined the relief to the appellant on the basis of its judgment in Appeal No.246(L) of 1992, wherein it was held that where a penalty is imposed under the Efficiency and Discipline Rules, the appellant would not be entitled to full emoluments of the period of suspension. It was also held that for entitlement to full pay, acquittal should not only be in the criminal case, but also in the proceedings under the Efficiency and Discipline Rules.

13. It appears that the Tribunal was of the view that, since after registration of the case, the appellant was placed under suspension, as such, the penalty imposed by the respondent No.3 was altogether separate than the findings in the criminal case. The record does not show that any different charge was levelled against the appellant in the departmental proceedings. On the contrary, it is evident that subject-matter was the same and action against appellant was taken on the basis of said criminal proceedings. Where the criminal charges are not established before a competent Court of Law and the accused is acquitted on those specific charges, the departmental proceedings exactly on the same charges, would be wholly irrelevant and unjustified. Since the appellant was acquitted by the Competent Court of Law, it shall be deemed that he had not been suspended and would be entitled to all pay and allowances, admissible under the rules, minus the amount which he had already drawn.

14. Under the circumstances, the impugned order of the Tribunal is set I aside and the appeal. is allowed with above observations. Q.M.H./M.A.K./A-102/S Appeal allowed