P L D 2000 Supreme Court 55 (PLP)

(On appeal from the judgment dated 13‑11‑1995 of the Lahore High Court, passed in W.P. No.3793 of 1981). (a) Fundamental Rules‑‑‑ ‑‑‑‑F.R. 53‑=‑Constitution of Pakistan (1973), Art.185(3)‑‑‑Payment of subsistence allowance to civil servant during the period he remained suspended‑‑‑Effect‑‑‑Leave to appeal was granted by Supreme Court to consider the effect of payment of subsistence allowance to civil servant during the period he remained suspended as well as the impact of Judgment of Supreme Court in case of Government of N.‑W.F.P. v. I.A. Sherwani and another PLD 1994 SC 72 wherein, while dealing with F.R.53, Fundamental Rights, it was ruled by the Shariat Appellate Bench of the Supreme Court that according to Injunctions of Islam "‑a suspended Government servant should be allowed full amount of his salary and all other benefits and facilities provided to him under the contract of service. Government of N.‑W.F.P. v. I.A. Sherwani and another PLD 1994 SC 72 ref. (b) Fundamental Rules‑‑‑ ‑‑‑‑ F.R. 53‑‑‑Suspension of civil servant‑‑‑Payment of salary etc. to such civil servant‑‑‑Principles‑‑‑Order of suspension of civil servant being not a penalty, would not violate any legal right vesting in the suspended officer‑‑‑If the suspension of a civil servant was not in order, at the most, he could make a claim for the balance of his unpaid salary for the period of suspension‑‑ "Balance" connotes that civil servant who had remained under suspension shall be entitled to salary for the period of suspension minus the susbsistence allowance paid to him during that period. Mian Muhammad Hayat v. The Province of West Pakistan PLD 1964 SC 321 and Abdul Khaliq Bangash v. The Secretary, Government of West Pakistan, Cooperative Department, Lahore and 2 others 1970 SCMR 103 quoted. (c) Pakistan Railways Establishment Code‑‑‑ ‑‑‑‑ Vol. II, Rr. 2043, 2044 & 2003‑‑‑Suspension of Railway employee‑‑ Payment of salary etc. to such employee‑‑‑Principles‑‑‑Railway employee, who ‑had remained under suspension, when re‑instated was entitled to full salary for the period of suspension minus the amount of subsistence allowance received by him during the period of suspension‑‑‑Payment of full salary including subsistence allowance paid during the period of suspension, would tantamount to making the double payment of the same claim to the extent of the subsistence allowance which he had already received during the relevant period. Pakistan Railways v. Aftab Ahmed and others 1988 PLC 960 approved. JUDGMENT. IRSHAD HASAN KHAN, J.‑‑‑This appeal with the leave of this Court is directed against the judgment dated 13‑11‑1995 of the Lahore High Court, passed in Writ Petition No.3793 of 1981.

2. The facts of the case are that Muhammad Halim respondent No. 1, now deceased, was employed in the Railway Workshops, Moghalpura, Lahore. He was suspended from service with effect from 31‑12‑1978. He approached the Labour Court No.2, Lahore for redress of his grievance under section 25‑A of the Industrial Relations Ordinance, 1969, which accepted his petition. In consequence, respondent No. I filed an application under section 15(2) of the Payment of Wages Act, 1936 (hereinafter referred to as the Act) claiming refund of a sum of Rs.3,164 in respect of his wages for the period from 31‑10‑1978 to 2‑7‑1979. The Authority under the Act allowed the application vide order dated 31,8‑1980 by directing the appellant to deposit a sum of Rs.3.,164 with it for onward payment to respondent No.

1. Being aggrieved, the appellant herein preferred an appeal against the aforesaid direction before the Punjab Labour Court No.2, Lahore which was, however, rejected by order` dated 20‑4‑1981. Dissatisfied with the above order the appellant filed Writ Petition No.5849 of 1981, which was dismissed on 13‑11‑1995.

3. Leave to appeal was granted to consider the effect of payment of subsistence allowance to a civil servant during the period he remained suspended, as well as the impact of the judgment of the Shariat Appellant Bench of the Supreme Court in the case of Government of N.‑W.F.P, v. I.A. Sherwani and another PLD 1994 SC 72 'in which while dealing with rule 53 of Fundamental Rules, it was ruled by the Shariat Appellate Bench of the Supreme Court that according to the Injunctions of Islam. "a suspended Government servant should be allowed full amount of his salary and all other benefits and facilities provided to him under the contract of service.

4. The question involved herein is whether a railway employee who has remained under suspension, when reinstated, is entitled to full salary for the period of suspension or to the salary for the said period minus the amount of subsistence allowance received by him during the period of suspension.

5. In the case of Mian Muhammad Hayat v. The Province of West Pakistan PLD 1964 SC 321 it was held that the order of suspension is not a penalty and it does not violate any legal right vesting in the suspended officer. The same view was reiterated in Abdul Khaliq Bang ash v. The Secretary, Government of West Pakistan, Cooperative Department, Lahore and 2 others 1970 SCMR 103; wherein Hamoodur Rahman, C.J. and Sajjad Ahmed, J. observed that "if the suspension of a civil servant is 'not in order, at the most, he can make a claim for, the balance of his unpaid salary' for the period of suspension". We are inclined to hold that the word "balance" used in the said observation connotes that a civil servant who has remained under suspension shall be entitled to salary for the period of suspension minus the subsistence allowance paid to him during the period.

6. The scope of Rules 2043, 2044 and 2003 of the Pakistan Railways Establishment Code, Volume II has been correctly interpreted in the case of Pakistan Railways v. Aftab Ahmed and others 1988 PLC 960, wherein it was held: "On the above analysis there seems to be no ambiguity and there is, thus, no justification to compel the petitioner to pay to the respondent full salary now although he has already received half of it during the period of his suspension. To hold otherwise would mean decreeing the same claim twice and compelling the petitioner to make a double payment of the same claim to the extent of half of the salary which they have already admittedly paid." The Lahore High Court was right in taking a similar view in the unreported judgment in Writ Petition No.4506 of 1982 decided on 4‑12‑1995.

7. Thus, visualised, in the light of case‑law discussed above, clearly the payment of full salary including subsistence allowance paid to respondent No.l during the period of his suspension would tantamount to making the double payment of the same claim to the extent of the subsistence allowance which he has already received during the relevant period.

8. In view of the above, we hold that respondent No. l continued to be in service in spite of his suspension and since he was ultimately reinstated, he was entitled to all the arrears of his salary which may be due to him for the period he remained under suspension minus the amount of subsistence allowance paid to him during the period of suspension in terms of Rule 2003 of the Pakistan Railways Establishment Code.

9. Resultantly, the impugned judgment to the above extent is set aside and the appeal is partly allowed with no order as to costs. M.B.A./D‑21/S Order accordingly.