P L D 1967 Dacca 14 (PLP)

ABDULLA, J.‑This second appeal raises a rather im portant question of law. Plaintiff sued defendant, Province of East Pakistan, under which he was serving as a clerk in the Department of Civil Supplies. The suit was for arrears of pay up to the date of dismissal from service. A criminal case was instituted against plaintiff on various allegations which resulted in plaintiff's acquittal because, according to defendant's version witnesses could not be procured on behalf of the prosecution consequent upon independence, which divided India into two independent neighbouring States. Thereafter, upon a report in a departmental enquiry, plaintiff was dismissed. On appeal the order of dismissal was modified into one of discharge. On further appeal plaintiff was dismissed. The order of dismissal was, however, given a retrospective effect, which is obviously illegal. The plaintiff had, in the meantime, undergone a period of sus pension for near about eight years before a final order of dismissal was passed against him. During this period he was entitled to a subsistence allowance of th of the salary which he was receiving, amounting to about Rs. 45 a month plus dearness allowance. Although plaintiff asked for his entire salary, the learned Munsif, who tried the suit, did not give him a decree as prayed for, but obviously made a distinction between the salary as claimed by plaintiff and subsistence allowance which was payable to plaintiff under rules governing Government servants which constituted a part of the law of the country. Learned Munsif allowed the decree in part to the extent of the subsistence allowance due to the plaintiff plus the dearness allowance payable to him. On appeal the learned Subordinate Judge modified the decree on the ground that there was a miscalculation of the amount of subsistence allowance as also dearness allowance by the trial Court. He, therefore, affirmed the decree but modified the amount according to an appropriate calculation. Defendant, Government of East Pakistan, then preferred this appeal. At the hearing .of the appeal, learned Government pleader, argued that plaintiff could not claim subsistence allowance and dearness allowance which have been decreed as they formed part of his salary which has been consistently treated by the Supreme Court of Pakistan as a matter of bounty; See P L D 1958 S C 147; P L D 1960 S C 208 and P L D 1961 S C

445. It seems to us that this Court as well as the Supreme Court of Pakistan has been consistently saying that the Govern ment of Pakistan is under an obligation to fulfill an engagement entered with any party. Such a pious wish expressed by the High Courts of Pakistan and supported by the Supreme Court has been honoured more in the breach than in the fulfillment thereof. However, it has been strenuously argued before us that the present case involves a totally different point from that which was raised in cases where only salaries have been claimed by plaintiffs. It was submitted to us that subsistence allowance which is payable to a Government servant is not a salary but an obligation to allow such Government servant to keep his body and soul together during the period of his suspension. It is a special kind of legal contract although, it may not strictly amount to a contract under the Contract Act. It should be remembered, as embodied in the relevant rules of the Government service, that during the period of suspension a Government servant cannot undertake any other kind of employment in order to maintain himself. This position can hardly be contested. The question, therefore, arises: Would it be appropriate to call subsistence allowance as something which is in the nature of bounty, or, would it be more appropriate to describe it as a solemn legal obligation which Government has undertaken in respect of its servants, so that he can physically survive during a period of suspension? It is only when a Government servant is dismissed, he may quit his assignment and take to some other appointment. During the period of suspension the official is, under the law, compelled to remain in a state of suspended animation with regard to service where it is not permissible for him to seek any other kind of employment. This special kind of situation has been met by a special obligation undertaken by Government to allow him to keep himself alive by way of subsistence. The very nomenclature of the allowance is clearly indicative of the status which governs the party under the situation. Subsistence allowance is intended for the subsistence of the incumbent. It is, therefore, an allowance of a very special nature. It appears to us that it would be unduly stressing the concept of bounty to include subsistence allowance. The subsistence allowance provided in Rule 'I1 of the East Bengal Services Rules reads as follows: "A Government servant under suspension is entitled to subsistence grant at the rate of one‑fourth of the pay of the suspended Government servant." (Vide Fin. and Rev. Deptt. Notification No. 6877‑F, dated 19‑10‑54.) This has been amended by a subsequent notification dated 14th January, 1960, by which for the word "one‑fourth" the word "one /third" has been substituted. The word "entitled" clearly indicates that this Rule gives to the Government servant a legal right to the allowance. This amount is paid to the Government servant: not as remuneration but as a solemn undertaking by the Govern ment to see that its servant can, at best, keep himself alive during the period taken by Government to decide his case‑whether to dismiss him or to retain him in service. During the period of suspension, the Government servant does no work. There fore, there cannot be any question of receiving any salary. The dictionary meaning of the word "salary" is a periodical payment for service. During the period of suspension, the Government servant renders no service, yet the Rules provide that he be given an allowance which has no relation to his salary excepting that the quantum should not exceed the percentage of the salary laid down in the Rules. In these circumstances, it seems to us that there is a distinction between salary obtained by the Government servant and as subsistence allowance which is payable to him during a period of suspension which is compulsorily imposed upon him without the wherewithal for an alternative employment to keep himself alive. So far as the dearness allowance is concerned, that also has no relation to the salary excepting for the purpose of fixing the quantum on the basis of a certain percentage having regard to increasing cost of living. The dearness allowance was made available to Government Servants on account of the inordinate rise in price of commodities during the last great war. It was an attempt to reduce the gap between the purchasing power of lower paid employees and the phenomenal rise in the price of commodities. If the purpose of subsistence allowance is, as we have held above, to keep alive the Government servant during the period of his suspension, the "dearness allowance" must also be paid to him because this was an allowance necessitated by the high price of commodities. There is no indication that the prices of commodities had come down to disentitle him to the "dearness allowance". In fact the dearness allowance is being paid continuously to all Government servants entitled to it. Thus we hold that the‑ subsistence allowance and dearness allowance have no relation to the salary of the Government servant excepting that the quantum is fixed with reference to a certain percentage of the salary. Therefore, in our opinion, the contention of Mr. Jan Alam that these two allowances are also included in salary is not quite correct. As we have stated above, these two allowance have got no reference to rendering any service by the incumbent, they relate to the status of the incumbent as a Government servant and Government by its own rules have given a right to his servant to obtain these allowances and he is entitled to them as long as he is not dismissed. So far as the question of salary itself payable to a Govern ment servant, it is clear that under the Constitution it arises out of a contractual relationship between the Government and his ' servant and can no longer be treated as bounty. However, we have already indicated in a judgment of this Court in the case of the Province of East Pakistan v. Mvi. Mohammad Abed (17 D L R 331), to which one of us was a party, our views and we understand that, pursuant to the certificate granted by this Court, the appeal is pending before the Supreme Court. We are waiting for an adjudication upon that appeal. In the meantime the view that we have taken is that the question involved in this case is distingui shable from the points raised in the' decisions of the Supreme Court of Pakistan, cited before us. We, therefore, dismiss the appeal. We certify that this is a fit case for appeal to the Supreme Court under the provision of Article 58 (2) of the Constitution. We make no order as to costs. MURSHED, C. J.‑I agree. K. A. B. Appeal dismissed.