1994 PLP (C (PLC(CS))

Government of Pakistan."

4. Even fresh disciplinary proceedings remained fruitless and he was ultimately reinstated into service through Notification dated 12‑2‑1986 which makes the following readings:‑‑ No. 10‑19/80‑Admn.III.‑‑The competent authority has been pleased to order reinstatement into service of Mian Muhammad Shafa formerly Senior Population Welfare Officer now DDPWO (BPS‑17) with immediate effect. The period of his dismissal from 23‑11‑1981 to 21‑8‑1985 and the period of his suspension from 22‑8‑1985 to date on his reinstatement will be treated as leave with leave salary to the extent it is at his credit in terms of FR‑54(b). For the remaining period he will be allowed to draw 30 per cent. of his pay plus full allowances to which he was entitled immediately before his dismissal from service on 23‑11‑1981 in terms of FR‑54(b). The entire period of his dismissal to his reinstatement will be treated as period spent on duty and be counted towards pension and increments etc." (Muhammad Bashir Khan), Section Officer (Admn. III)"

5. The appellant was not satisfied with this order and sought its review by petition dated 9‑3‑1986 which was followed by certain reminders. Another notification was issued on 13‑9‑1988, which is to the following effect:‑‑ No. 10‑19/80‑Admn.III.‑‑In continuation of this Division's Notification of even number, dated the 22nd August, 1985, the competent authority has been pleased to decide that period of first suspension of Mian Muhammad Shafa, District Population Welfare Officer, District Population Welfare Office, Gujrat from 6th October, 1980 to 22nd November, 1981 shall be treated as period spent on duty in terms of FR‑54(a) and he shall be entitled to full pay and allowances for the said period at the rate which he was in receipt immediately before his aforesaid suspension." (Muhammad Bashir Khan), Section Officer (Admn. III)"

6. His departmental representation dated 9‑3‑1986 was ultimately rejected by the competent authority and he was informed of this fact through Memo., dated 2‑10‑1991. The case set up in the departmental representation was that he is entitled to full pay and allowances of the entire period from 6‑10‑1980 to 12‑2‑1986 under FR‑54(a) of the Fundamental Rules and that the provisions of clause (b) of this Rule are not attracted by the facts of the case.

7. In the present appeal, the relief sought is that Notification dated 12‑2‑1986 (Annexure C) and final order dated 2‑10‑1991 may be set aside and that the entire period from 6‑10‑1980 to 12‑2‑1986 be directed to be treated as having been spent on duty with full pay in accordance with FR‑54(a) of the Rules.

8. It is clear from the facts that correct decision of this case depends upon which provision of FR‑54 of the Fundamental Rules is applicable to the facts. It is reproduced because of its importance: "FR‑54.‑‑When the suspension of a Government servant is held to have been unjustifiable or not wholly justifiable; or When a Government servant who has been dismissed, removed, or suspended 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, 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 directs."

9. There is hardly any, ambiguity in these provisions and they do not present any difficulty. We are in no doubt that ‑the provisions of clause (a) are attracted by the facts on the ground that the appellant was acquitted of the charge against him. Although, the department claims that this was the result of benefit of doubt, we would hold that the acquittal is honourable within the meaning of this rule. As a matter of fact, all acquittals are honourable and the expression "honourable acquittals", occurring in clause (a) seems to be superfluous and redundant. It is one of the most valuable principles of criminal jurisprudence that for a judgment of conviction it is the duty of the prosecution to establish its case beyond all reasonable doubt. If it fails to do so, the accused will be entitled to acquittal and such acquittal will be honourable, even if it is the result of a benefit of doubt. The expression "benefit of doubt" is only suggestive of the fact that the prosecution has failed to exonerate itself of the duty of proving its case beyond all reasonable doubt.

10. In the present case, therefore, the appellant's acquittal of the charge of misconduct and his consequential reinstatement in service entitled him to full pay and remuneration of the entire period from 6‑10‑1980 to 12‑2‑1986 under FR‑54(a) of the Rules. We hold that the provisions of FR‑54(b) are not relevant and that they could not have been pressed into service by the Department in deciding the matter.

11. It was argued by the respondents' learned counsel that the Tribunal's judgment of 13‑4‑1985 authorised the Department to make a decision with regard to intervening period. It was no doubt so, but the mere fact that the department were to be at liberty to decide about the intervening period, did not suggest that that decision could be in violation of the rules. When the Tribunal said that in case of fresh disciplinary proceedings, the Department will be in its authority to make any decision about the intervening period; all it meant was that decision has to be in accordance with the rules. It is not possible to hold that the Tribunal's Judgment gave the department the licence to make any decision regardless of the rules. Facts of the case attracted the application of clause (a) rather than clause (b) of FR‑54 and the Department's decision should have been in accord with its provisions.

12. For these reasons, the appeal is accepted and the impugned orders of 12‑2‑1986 and 2‑10‑1991 are set aside with a direction to the Department that the entire period from 6‑10‑1980 to 12‑2‑1986 be treated as having been spent on duty with full pay and allowances in accordance with FR‑54(a) bf the Fundamental Rules. No order as to costs. Parties to be informed. H.B.T./902/Sr.F Appeal accepted.