P L D 1972 Lahore 756 (PLP)

'. . . That the appeal be allowed, with costs throughout, and that the judgment and decree of the High Court being reversed, the appellant shall be granted in place of the decree awarded by the trial Court, and later modified in appeal by the Senior Civil Judge, a decree for a declaration that the termination of his service by the notice of the 24th August 1953, was void and inoperative, and that the appellant remained a Foreman Grade III in the service of the North Western Railway on the date of the filing of his suit'." Rule 2044 provides for cases in which a railway employee is suspended or removed from service as a result of a disciplinary action. Clause (a) lays down that if the employee is 'honourably acquitted' the revising or appellate authority may grant to him the full pay to which he would have been entitled if he had not been dismissed, removed or suspended' under clause (b)‑ -'if otherwise such proportion of such pay and allowances as the revising or appellate authority may prescribe'. The Railway authorities treated the appellant's case under clause (b) and allowed him 5 % of his pay and allowances for the period of his absence from duty. The High Court on the contrary held that the appellant's case fell under clause (a), but on the view that the use of the word 'may' vested an unfetterd discretion on the revising or appellate authority to grant any percentage of pay and allowances declined to quash the impugned order of the Railway authorities. The construction placed by the High Court on rule 2044 is ex facie open to exception, but it is unnecessary to dwell on this aspect of the case as in the view formed by us, the appellant's case is not at all covered by this rule. The order terminating his services has been set aside as `void' and `inoperative' and he has been granted a declaration that he 'remained a Foreman Grade III in the service of the North Western Railway on the date of the filing of his suit'. The appellant's claim for payment of full salary and allowances is, therefore, based on the general principle of law and may possibly be covered by rule 2013 which provides: "2013. (F. R. 17). Pay and allowances.‑Subject to any exceptions specifically made in these Rules and to the provision of sub‑rule (2), a railway servant shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties. (2) The date from which a person recruited overseas shall commence to draw pay on first appointment shall be determined by the general or special orders of the authority by whom he is appointed. In consequence of the decree passed in favour of the appellant be remained a Foreman Grade III on the date of the filing of his suit and as he was not allowed to assume the duties of that post under an illegal order passed by the General Manager it could not be said that he had ceased to discharge those duties to attract the concluding clause of the rule."

5. The Government of West Pakistan not being satisfied with the aforesaid view of the Supreme Court filed Civil Review Petition No. 8 of 1969, which was dismissed by order dated the 3rd of June 1969. It is instructive to reproduce the relevant portion of the Supreme Court order :‑ "This petition for review by the Government of West Pakistan and others arises in the following circumstances:‑ The respondent herein Kh. Ghulam Sarwar, was employed as a foreman Grade III in Pakistan Western Railway Work shop, Mughalpura, Lahore. The services of the respondent were terminated on the 24th August 1953. The order of termination was declared to be void and inoperative by the judgment of this Court delivered on the 19th March 1962 in an appeal arising out of a suit filed by the respondent. It was further declared that the respondent remained a foreman Grade III in the service of the North Western Railway on the date of the filing of his suit." The respondent claimed payment of full pay and allowances ‑for the period of his absence from duty. The Railway Administration, however, found that his case was covered by clause (3) of Rule 2044 of the West Pakistan Railway Establish ment Code. He was, therefore, allowed only 5 % of his full pay. The respondent challenged the above order of the Railway Administration in a writ petition filed in the High Court of West Pakistan. The High Court took the view that the respon dent's case fell under clause (a) of rule 2014 but maintained the order of the Government as it was found that clause (a) was merely an enabling provision which empowered the revising or the appellate authority to grant any sum up to the full amount of pay which became admissible to a railway employee on his being honourably acquitted. Special leave to appeal from the judgment of the High Court was granted to consider the question of law of general importance which arose in the case. The appeal came up for hearing on the 31st March 1965. On that date after hearing the learned counsel for the parties this Court found that the case of the respondent did not at all fall within the purview of rule 2044. It was pointed out that `rule 2044 provides for cases in which railway employee is suspended or removed from service as a result of a disciplinary action'. The termination of the respondent's service was effected by serving a notice on him and therefore this Court took the view that his case did not fall within rule 2'

044. It was further pointed out that the respondent's case `may possibly be covered by rule 2013'. It was then observed that as in consequence of the decree passed in favour of the respondent he remained a foreman Grade III on the date of the filing of his suit and as he was not allowed to resume the duty of that post under an illegal order passed by the General Manager it could not be said that he had ceased to discharge those duties to attract the concluding clause of rule 2013 disentitling him to draw his full pay. The ground on which review of our decision dated the 31st March 1969, has been sought may be quoted from the petition itself. It is in the following terms:‑ "This learned Court's judgment is silent as regards the Government of Pakistan, Railway Board's letter dated 20‑9‑63 (Annexure 'L' to the writ petition at p. 29 of the Paper‑book which lass down the policy as regards persons who produce decrees of Courts to the effects that their termination is null and void and who are therefore only to be paid 5 of their pay and allowances for the period that they have not peen on duty. This policy decision, which had received the sanction of the Government of West Pakistan, had been acted on by the Railway vis‑a‑vis the appellant, by its decision dated 9‑12‑63, which was the impugned judgment in the writ petition. This policy decision was also gazetted in the P. W. R. Gazette, Extraordinary, dated 31‑5‑1966. The absence of any reference to the Government's policy letter dated 20‑4‑63 or the notification dated 31‑5‑1966 in this Court's judgment leaves the decision un-authoritative qua the changed position as contained in these instruments and further is likely to lead to complications should the present decision be produced in subordinate Courts. The question whether the policy decision is not applicable qua tine appellant or not applicable at all to any person similarly placed even in the future is a question which should be made clear in the judgment." We have considered the notification dated the 31st May 1966, which appears on page 8 of the present paper book. The heading of the notification is 're‑instatement of employees on a Court of Law's order on account of procedural flaws etc.' Clause (i) of the notification states that only those employees who produce s decree from a Court of law to the effect that the termination of the service was null and void should be permitted to resume duty. Clause (ii) says that employees permitted to return to duty should be allowed 5% of the pay and allowances from the date of the expiry of notice of termination of his service or from the date up to which he has been paid in lieu of notice to the date he is allowed to resume duty or has attained the age of superannuation, whichever is earlier. This notification, in our view, was issued only to nullify the decree passed by this Court holding that the respondent must be deemed to have been in office as a foreman Grade III on the date he filed his suit. The conclusion that the petitioner was in service on the day the suit was filed was arrived at by this Court on a consideration of the constitutional provisions which were available to the respondent as a person in service of Pakistan. We are unable to accept the contention that the notification disentitled the respondent to receive his full pay in spite of the decision of this Court holding that the appellant remained a foreman Grade III. in the service of North Western Railway on the date of the filing of his suit. We are, therefore, of opinion that no ground for reviewing our order dated the 31st March 1969, has been made out. The review petition is, therefore, dismissed.

6. Thereafter pursuant to certain observations made by the Supreme Court the Railway Administration sent a cheque for the entire amount of arrears of salary due to Kh. Ghulam Sarwar to the Supreme Court, which was allowed to be received by Kh. Ghulam Sarwar. This will show that rule 2044 had no application to a case of the kind involved herein and order of the respondent withholding the salary of the petitioner for that reason would be without lawful authority.

7. Reference at this stage may be made to another judgment of the Supreme Court in Civil Appeal No. 172/69 Didayat Ali Khan v. Inspector‑General of Police, West Pakistan, Lahore, dated the 2nd July 1971. The relevant passage in the Supreme Court judgment is as follows:‑ "The appellant again applied for re‑instatement. He was re‑instated by an order of the 5th August 1965 but the period spent by him out of employment was treated as 'leave of kind due'. He was also not given the increments in pay which he would have earned in the normal course. He accordingly, refused to draw his salary. His case was then referred to the Ins lector‑General of Police but no decision was taken thereon in spite of repeated reminders and a lawyer's notice served by the appellant. In these circumstances, the appellant invoked the special jurisdiction of the High Court under Article 98 of the Constitution of 1962 by his Petition No. 312 of 1966. The High Court, however, refused to interfere on the ground that the salary of a Government servant was in the bounty of the State, as held by this Court in the cases of Pakistan v. Mehraj-ud-din P L D 1959 S C (Pak.) 147 and Pakistan v. Nasim Ahmed P L D 1961 S C

445. Leave was granted in this case to re‑consider the decision of this Court in the case of Pakistan v. Mehraj-ud-din in the light of certain observations made in the subsequent case of Pakistan v. Mohammad A. Hayat P L D 1962 S C 28 and the change introduced by the Constitution of 1962 which by clause (3) of Article 178 now provided that the rules framed for the purposes of clause (2) of the said Article shall be so framed so as to ensure that the terms and conditions of a person, in so far as those terms and conditions related to remuneration or the age fixed for superannuation shall not be varied to his disadvantage. Neither the learned counsel nor the Advocate‑on‑Record appearing on behalf of the appellant are present but the learned counsel appearing on behalf of the respondent concedes that this case is now covered by the decision of this Court, in the case of Pakistan v. Mrs. A. V. Issacs P L D 1970 S C 415 which overruled the decision in Mehrajuddin's case and laid down that a civil servant always had the right to recover from the State salary already accrued due to him, in spite of the fact that he held service during pleasure. The principle that was laid down in that case was as follows:‑‑ 'If the dismissal was wrongful then it was due to no fault of the servant that he was prevented from serving the State. If he is to be treated by virtue of the declaration given by the Court as being still in service, then I see no reason why he should not also be given by way of consequential relief the salary for the period as if he was actually rendering service. This is the basis on which arrears of pay were allowed to Suraj Narain Anand by the Federal Court. If during this period he has accepted other employment or engaged in other profitable business, then any amount earned by way of salary from such employment or as profits of such business would, of course, have to be set off against the salary due for two reasons. Firstly, because a Government servant cannot without the permission of Government serve any other master or engage in any other business and secondly, because on general principles too, a person cannot be allowed to reap a double advantage. According to this principle the appellant would be entitled to his arrears of salary for the period he was prevented by the appointing authority itself from rendering service by reason of his wrongful dismissal. The department will, of course, be entitled to set off against this salary, if it can show that during this period the appellant was employed somewhere else or was engaged in some other business, such amount as he may have earned by way of salary from the other employment or by way of profits from the business, if any, carried on by him. The onus of establishing this will, however, be on the department. So far as the appellant's present appeal is concerned it must, therefore, succeed as conceded by the learned counsel appearing on behalf of the State. This appeal is, accordingly, allowed and a writ is directed to issue to the department concerned to fix the pay of the appellant in accordance with law after giving him all the increments lawfully earned by him since his wrongful dismissal and to pay to him without any undue delay his arrears of salary as may be found due, but there will be no costs as no one has appeared on behalf of the appellant. The department will, we hope, now proceed to take action according to the principles laid down in the case of Mrs. A. V. Issacs and pay the appellant not only the arrears of his salary but also grant the Increments in pay that he would have earned had he not been wrongfully dismissed and prevented from continuing in service. Let a copy of this judgment be sent to the Inspector‑General of Police, Punjab."

8. In Pakistan through General Manager, P. W. R., Lahore v. Mrs. A. V. Issacs (P L D 1970 S C 415) the Supreme Court has held that where the removal order was illegal or void then the civil servant concerned was to be considered still in service and his salary was not to be reduced on the ground that he had not rendered any service or that the period when the Government itself did not allow him to render service he would be considered on leave or forced leave. In view of the abundant authority of high value on the subject, the action of the respondent in not allowing full salary to the petitioner for the first period hereinbefore mentioned is not justified.

9. Taking up the second period from 2‑12‑1961 to 22‑8‑1962, there again the position is not different. The order dated 2‑12‑1961 terminating the services of the petitioner was of the same kind as was involved in Kh. Ghulam Sarwar v. Pakistan. Since the Supreme Court had struck down the order in Khwaja Ghulam Sarwar's case, therefore, accepting the verdict of the Supreme Court, the Government in the case of the present petitioner itself withdrew that order and accepted his earlier removal to be illegal and re‑instated him. As a matter of fact they kept the matter of the petitioner pending for a good deal of time stating that it will be dealt with after Kh. Ghulam Sarwar s case. For this period again the refusal to grant full pay to the petitioner and granting him only 5 % of his pay would be clearly without lawful authority. In Pakistan v. Mrs. A. V. Issacs, the pay to Mrs. A V. Issacs was granted on the basis of her Last Pay Certificate i.e. the pay which she was drawing at the time when the illegal order of removal was passed against her. Applying the law declared and the principles enunciated by the Supreme Court to the facts and circumstances of the present case, here too, the respondent is liable to pay salary to the petitioner at the normal rates without any deduction of the kind mentioned hereinbefore with the usual increments,

10. The upshot of the above discussion is that the present writ petition is accepted. The impugned orders whereby full pay was not paid to the petitioner are declared to be without lawful authority and the respondent is directed to pay salary to the petitioner in accordance with law, on the basis of his normal pay i.e., last pay which he was drawing without any deduction of the kind involved herein along with law usual increments lawfully earned by him.

11. An attempt was made to raise arguments regarding the confirmation and promotion of the petitioner, but as these claims cannot form the subject‑matter of a petition under Article 98 of the Constitution of 1962 as held in Inspector‑General of Police, West Pakistan. Lahore and another v. Muhammad Idris Khan and 2 others (P L D 1970 S C 279) no orders are passed about them and the petitioner in this respect is left to follow the departmental remedy or remedies by making proper application or representation to the Government, which it is expected, will be duly taken into consideration in accordance with law, keeping in view the verdict of this Court on the main subject of salary and increments. Similarly, I do not propose to pass any order with regard to pensionary benefits claimed by the petitioner or the claim of the department for "refund of Provident Fund dues received by him", because these matters may need re‑thrashing or re‑decision in the light of the present judgment. Since the case of the petitioner has already been much delayed by the department, the respondent is directed to decide these matters expeditiously.

12. The petitioner shall get his costs from the respondent. Petition accepted.