P L D 1966 (W (PLP)

FARUQUI, J.‑

This revision application under section 115, C. P. C. by the Divisional Superintendent, Pakistan Western Railway, Karachi against its employee Bashir Ahmad, arises in the following circumstances. The respondent Bashir Ahmed, who was employed as an Assistant Station Master at the Railway Station Bandhi, was charge‑sheeted and suspended for an alleged' misconduct which consisted of unauthorised detachment of 5 extra wagons at the Bandhi Railway Station by him. He was eventually discharged from the service of the applicant with effect from 1st August 1956. Bashir Ahmed challenged the order of discharge by a Civil Suit instituted in the Court of the, First Class Sub‑Judge, Nawabshah (Suit No. 39/57). That suit was decreed by the learned Sub‑Judge who granted a declaration to Bashir Ahmed to the effect that he order dated 28‑7‑56 removing him (Bashir Ahmed) from service was illegal and inoperative and that he continues to be in the service of the defendant, North‑Western Railway. The defendant did not prefer any appeal against this decree. The judgment in this case was delivered on 30th November 1959 and the present respondent Bashir Ahmed was reinstated in service on 18‑3‑60 and was posted as Assistant Station Master, Tando Jam in the Karachi Division of the N. W. R. The intervening period from 1‑8‑56 to 17‑3‑60 was not treated as a period spent on duty and the Divisional Superintendent allowed to Bashir Ahmed 1/10th of his pay for this period under rule 2044 of the Pakistan Railway Establishment Code, Vol. II. This amount was paid to Bashir Ahmed on 8‑1‑

60. Bashir Ahmed then filed and application under section 15 of the Payment of Wages Act and claimed that he was entitled to full salary for the period 1‑8‑56 to 17‑3‑

60. This application was made before the Commissioner under the Payment of Wages Act and was numbered as Miscellaneous Application No. 1/60. The learned Commissioner by his order dated 31st May 1961, dismissed the application upon two grounds: firstly, that the application was barred by time allowed by the second proviso to subsection (2) of section 15 of the Payment of Wages Act, and secondly, that the competent authority had, under clause (b) of rule 2044, exercised discretion and allowed 1/10th of the pay for the period in question and it was not open to him to interfere in the discretionary power of the said competent authority. Bashir Ahmed then filed an appeal under section 17 of the said Act in the Court of the District Judge, Hyderabad, who allowed the appeal and held that the employee's case was governed by clause (a) of rule 2044 and not by clause (b) and, therefore, he was entitled to full pay. He also held that the application before the Commissioner was within time. The Divisional Superinten dent has challenged the legality of the order of the learned District Judge in this revision application.

2. Mr. Z. A. Suhrawardy, the learned counsel for the applicant, has not pressed the ground of limitation before us and rightly so. What he contended was that the applicant in making his order for payment of 1/10th of pay to the respondent Bashir Ahmed had deducted the remaining 9/ 10th of the pay, which deduction was permissible under clause (h) to subsection (2) of section 7 of the Payment of Wages Act and this was done by him while acting under rule 2044 of the Pakistan Railway Establishment Code. It was pointed out by him that subsection (1) of section 7 itself provides that the wages of an employed person shall be paid to him without deductions of any kind ' except those authorised by or under this Act, and that being the deduction in' question being permissible under clause (h) of subsection (2)'it was not open to the respondent to claim anything more than what had been paid to him. It was reiterated that the exercise of powers under rule 2044 was of a discretionary character and the appellate authority under the Payment of Wages Act could not question the percentage or proportion of pay which was allowed to the respondent under clause (b) of the aforesaid rule 2044.

3. In order to appreciate these contentions it would be necessary to quote section 7 (1) and (2) of the Payment of Wages Act and sub‑clause (h) of subsection (2) and also rule 2044 of the Pakistan Railway Establishment Code: "7. (1) Notwithstanding the provisions of subsection (2) of section 47 of the Railway Act, 1890 (IX of 1890), the wages of an employed person shall be paid to him without deductions of any kind except those authorised by or under this Act. Explanation.‑Every payment made by the employed person to the employer or his agent shall, for the purposes of the Act, be deemed to be a deduction from wages. (2) Deductions from the wages of an employed person shall be made only in accordance with the provisions of this Act, and may be of the following kinds only, namely (h) deduction required to be made by order of a Court or other authority competent to make such order." Rule 2044‑Pay after reinstatement.‑When the suspension of a railway servant is held to have been unjustified or not wholly justifiable; or When a railway 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 direct."

4. The question which falls for determination is whether the deduction of the 9/10th of the pay of the employee‑respondent was a deduction permissible under clause (h) to subsection (2) of section 7 of the Payment of Wages Act. The answer to that question must depend upon a finding whether such a deduction could be validly made in this case by the application of rule 2044 of the Pakistan Railway Establishment Code. If the finding is in the affirmative a further question would arise whether the Divisional Superintendent was right in applying clause (b) of the said rule and not clause (a) as held by the District Judge acting as the appellate authority.

5. The contention of Mr. Mushtaq Hussain for the respondent employee was that rule 2044 was wholly inapplicable to the case of a railway servant whose dismissal or discharge had been found by the Civil Court to have been void and as a result of which finding it was declared that the servant continued to be in service of the railway. In the alternative he argued that clause (a) of rule 2044 would apply in which case the respondent would be entitled to full pay for the period in question. Mr. Suhrawardy on behalf of the applicant drew our attention to two judgments of the Supreme Court, both reported in 1963 volume of the P L D. The first of these is the case of Ghulam Mustafa Shah (P L D 1963 S C 268). In that case Ghulam Mustafa Shah who was in service of the North‑Western Railway had upon dismissal from service filed a civil suit which was decreed and a declara tion was given to him that his removal from service was void and inoperative. He then put in a claim for salary for the period during which he remained absent from duty due to suspension and subsequent dismissal. That claim was rejected by the Divisional Superintendent upon the ground that the period in question had been treated by him as extraordinary leave without allowance within the meaning of rule 2026‑R‑11 read with rule 2022‑R‑1I of the Pakistan Railway Establishment Code and that no salary for that period was admissible. The railway servant then applied for a writ of mandamus in the High Court which having been summarily rejected he preferred an appeal to the Supreme Court: When the case came up for hearing before the Supreme Court the Additional Advocate‑General M. Khalid Ishaque straightway conceded that neither of the two rules relied upon by the Divisional Superintendent were applicable and the matter was governed by rule 2044. Upon this concession having been made Muhammad Munir, C. J. who wrote the judgment of the Court, after reproducing rule 2044, observed that it was perfectly clear that it was within the discretion of the revising or appellate authority to grant to a railway servant who has been dismissed, removed or suspended such proportion of his pay and allowance as that authority may prescribe. However, the learned Chief Justice went on to hold that since the servant's claim was negatived by the Divisional Superintendent on strength of a rule which was inapplicable and the rule that governed the situation was not present to the mind of that authority, the case must be reconsidered in order to determine whether the appellant was entitled under rule 2044 to any proportion of the pay and allowance for the period during which he remained out of office. Accordingly a writ of mandamus was issued to the General Manager, N. W. Railway.

6. It must be observed that; the above judgment proceeded upon the concession made by the Additional Advocate‑General that rule 2044 was applicable r in the present case and the appellant in that case was content to have his case considered by the Railway authorities with reference to that rule. It is no doubt true that the Supreme Court granted a mandamus directing the Railway to consider the case of the appellant with reference to rule 2044. But we venture to think that the question whether this rule was at all applicable to a case of a Railway servant who had obtained a decree from the Civil Court declaring that his removal was void and he continued to be in service was not considered upon a contest as to the applicability of the rule.

7. The second case is that of Divisional Superintendent, N. W. R. v. Muhammad Sharif (P L D 1963 S C 340). In that case the main, question was whether the term `wages' as defined under the Payment of Wages Act meant' only "earned wages" and their Lordships upon an exhaustive examination of the provisions of the Payment of Wages Act came to the conclusion that there may be cases where the employee without rendering service may be entitled to his remuneration, e.g. where the employee is ready and willing to render service and yet may not do so because the employer for, some reason does not give him opportunity to render that service. It was held that in such a case the mere fact that the employee is not given work or cannot render service will not derogate from his right to receive wages from the employer. However, in answer to the contention that the contract of service of a Railway employee was subject to the rules laid down in the Pakistan Railway Establishment Code and that rule 2044 thereof dealt with the question of pay after re‑instatement, their Lordships after reproducing the rules held that as the Railway Administration had not elected to make any order under this rule after the re‑instatement of the employee, the Authority under the Payment of Wages Act was justified to hold that the servant was entitled to the payment of full wages for the relevant period. It may be noted that in this case as well the question was not raised whether rule 2044 was at all attracted in such a case. Before us, since the question has been raised that rule 2044 is not applicable to a case where a Railway servant upon his removal or discharge had obtained a declaration from the Civil Court that his removal, or discharge was void and that he continued to be in service, we must in fairness note the reasons which were advanced at the Bar in support of this contention These we now proceed to do.

8. Rule 2044 has been reproduced above and it provides that when a Railway servant who has been dismissed, removed or suspended is re‑instated "the revising or the appellate authority may grant to him for the period of his absence from duty." Then follow clauses (a) and (b) of the rule. Clause (a) provides for cases of honourable acquittal in which the servant in stated to be entitled to full pay as if he had not been dismissed, removed, etc. Clause (b) provides: "if otherwise such proportion of such pay and allowances as the revising or appellate authority may prescribe". The argument was that this rule would apply to cases where the employee who had been dismissed, removed or suspended is re‑instated by an order of Railway authority acting in exercise of its revisional or appellate powers. It was contended that this rule has no application where such an employee has been removed from service by the order of the Railway authority itself, which removal or dismissal has been held by a Civil Court to have been void and a declaration is given that such an employee continues to be in service. It was urged that in such a case the re‑instatement follows the declaration of the Civil Court and not an order of the appellate or revising authority and that being so, the rule which contemplates re‑instatement upon a decision of the appellate or revising authority cannot be applied. The argument proceeded that in view of the declara tion by the Civil Court the employee is deemed to have continued in service without any break and if he was not allowed to work though he was willing to do so his case cannot be considered‑ upon the basis that he was absent from duty. Support for this last argument was sought from the judgment of the Supreme Court in the case of Muhammad Sharif. It was next pointed out that this rule 2044 is a reproduction of fundamental rule 54 with necessary adaptation, which fundamental rule is quoted in the Railway Establish ment Code along with rule 2044. Our attention was. then drawn to the Government decision noted under fundamental rule 54 which appear at page 89 of the Fundamental Rules, Vol. I, 1st edition (reprint) and it was urged that the appellate or the revising authority contemplated in this rule was the authority which itself decided the appeal or revision of the Government servant. Reliance was placed by Mr. Mushtaq Hussain upon three judgments of the Indian jurisdiction, as having a persuasive value, in similar cases. The first of these is the case of State v. Abdul Majid (A I R 1954 S C 245) decided by the Supreme Court of India. In that case a Sub‑Inspector who had been dismissed by the D.I.G. had filed a suit for a declaration that the order, of his dismissal from service was illegal and void. The Government had in the meantime re‑instated the servant and as regards his salary for the relevant period it was urged that the claim could only be made according to the procedure prescribed under rule 95 of section 4 of Chapter IV of Bihar and Orissa Service Code. This rule 95 has been reproduced in the judgment of the Supreme Court and is analogous to rule 2044 which we are considering. It was held that considering that the servant had not been re‑instated by the order of any revising or appellate authority but only as a result of the filing of the suit rule 95 obviously had no application.

9. In another case of Risal Singh v. Union of India (A I R 1958 Pb. 155), it was held that rule 2044 was clearly intended to be applicable in cases where the employee, who had been dismissed, removed or suspended, was re‑instated by some Railway officer acting as a revising or appellate authority and that it would not be applicable in a case where an employee removed from service by the order of the Railway officer is restored to service by decree of a Civil Court declaring his removal to be illegal and inoperative. The last decision cited is a judgment of the Allahabad High Court in the case of Divisional Superintendent, N. Rly v. Nand Lal (A I R 1963 All. 123) in which after an examination of a number of decisions the same view was taken as by the Punjab High Court.

10. If rule 2044 was not applicable in the present case it would follow' that the deduction of 9/10th of the pay of the respondent would not be a deduction under clause (h) of sub section (2) of section 7 of the Payment of Wages Act and, therefore, he would be entitled to be paid without any deduction as provided by subsection (1) of section 7.

11. The contentions raised by Mr. Mushtaq Hussain are not without force, but we cannot overlook the fact that in the two judgments of the Supreme Court to which we have referred it was assumed that rule 2044 would be applicable to the case of a Railway employee whose removal from service was declared to be void by the Civil Court upon which the re‑instatement had taken place. The view that we take is that if rule 2044 is applicable the finding of the learned District Judge (appellate authority) that clause (a) would apply and not clause (b), is not such with which we would interfere in the exercise of our C revisional jurisdiction under section 115, C. P. C. even assuming that it applies. The declaration by the Civil Court that the removal from service of the respondent was void and that he continued to be in service would be more in keeping with the situation contemplated in clause (a) which provides for cases of honourable acquittal than clause (b) ‑which presupposes finding that some blame attaches to the employee.

12. For the reasons given we dismiss this revision with costs. K.B.A. Petition dismissed.