1988 PLP 960 (PLC)

(b) any contribution paid by the employer to any pension fund or provident, fund; (c) any travelling allowance or the value of any travelling concession; (d) any sum paid to the person employed to defray special expenses entitled on him by the nature of his employment; or (e) any gratuity payable on discharge." The learned counsel argued that in case of suspended employee the quantum of wages remains the same. Payment is split up. Portion of wages to the extent of half is paid to the employee during the period of his suspension as "subsistence grant while the remaining half or balance remaining unpaid would be payable rf and only if the suspension ends as a result of an honourable acquittal from the charge he was facing in a criminal inquiry. Honourable acquittal means that the accusations against him had no merit and or were brought out without justification. In other words no such disability or infirmity ever existed in the eye of law and as such he should not be subject to suffer any prejudice for an ill‑advised or misconceived action. Once he is absolved of these misconceived accusations by his honourable acquittal he is treated in a manner as if this disability had never occurred and as if he had remained on active service during the period of suspension entitling him to restoration of all the emoluments or benefits which he would have earned or enjoyed if this unfortunate mishap had not occurred. The counsel contends that on no rationale and on no process of reasoning he should be awarded any sums in addition to his salary or other contracted benefits. To hold otherwise would mean to encourage payees to invite their suspensions in order to gain advantage at the expense of employer. So, the learned counsel puts it. The respondent has appeared in person and has pleaded his case personally. He invited our attention to rule 2043 under which he has received the "subsistence grant" and rule 2044 under which he claims his full salary now after his honourable acquittal. He submits that the rule requires full payment of his salary of his reinstatement and the words "The appellate authority may grant to him for the period of his absence from duty the full pay to which he would have been entitled if he had not been dismissed, removed or suspended" do not admit of any deduction from the amount of the full salary. I have given anxious consideration to the two contentions advanced before us and have examined carefully the view expressed in the two judgments in favour of the respondent in this case as well as the judgment of the Labour Tribunal Punjab referred to above. While according full respects to the view taken in these decisions I find it difficult to concur with the interpretation placed on these two rules. If the two rules are carefully read it would be clear that they do not seek to carve out a new contract of employment between the parties nor the payment of the subsistence grant is intended to be a penal consequence for initiating a misconceived action against the employee or rewarding the employee for suffering inconvenience on account of that abortive action. The rules merely seek to maintain an even balance within the framework of the contract. No fresh entitlement is created by rule 2044. Under this rule the authority simply "grants" the relief of full pay to the employee for period of his suspension without specifying when and how this relief should be implemented. The words "appellate authority may grant to him for the period of his absence from duty, if he is honourable acquitted, the full pay to which he would have been entitled if he had not been dismissed, removed or suspended" do not talk of any payment or reimbursement. Nor indeed there is any direction of payment in the decision taken. The relief is of a declaratory nature. Payment of full salary must be ensured. Whether this amount is paid partly before and partly after tile order is immaterial. A close study of the two rules would show that the payment received by the employee during the period of his suspension is nothing but a part of his salary. In rule 2003 (27) the term "subsistence grant" has been defend. The definition runs as follows: "Subsistence grant" means monthly grant made to a railway servant who is not in receipt of pay or leave salary. Now let us proceed to analyse the two rules. The first and opening part of rule 2043 is "PAY DURING SUSPENSION." This clearly shows that what is being paid to the employee during his suspension as "subsistence grant" is nothing but a part of his PAY. The whole thing would become very clear if the opening few words of rules 2043 and 2044 arc put in sharp focus. Both rules start thus:‑ Rules 2043 starts with the words "PAY DURING SUSPENSION" Rule 2044 starts with the words "PAYAFTER REINSTATEMENT". Under both the rules it is the "PAY" which is being handed over to the employee. The time and stage of this payment is different. A portion is paid as subsistence grant during suspension and so far as the balance is concerned it is being with held. If the employee gets honourable acquittal "The revising or appellate authority may grant to him for the period of his absence from duty the full pay to which he would have been entitled if he had not been dismissed, removed or suspended OR "(b) If otherwise, such proportion of such pay and allowances as the revising or appellate authority may prescribe." All the manoeuvrability starling from the date of suspension and ending in his acquittal would be within the limits of his salary. If the suspension ends in "honourable acquittal" he may be granted a relief of entitlement to the extent of full amount of his salary "if otherwise such proportion of such PAY and allowances as the revising or appellate authority may prescribe" 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 tile extent of half of the salary which they have already admittedly paid, Some cases were cited at the bar but none is applicable to the case before us. In Divisional Superintendent P W R Karachi v. Abdul Haq reported in P L D 1974 S C 1 the point involved was whether Rent Rules framed by P W R in exercise of powers under section 157 Pakistan Railway Establishment Code for charging house rents in excess to the prescribed scale were repugnant to sections 7 and 11 of the Payment of Wages Act. It was held as follows:‑‑ "After carefully considering the argument advanced on behalf of the appellant, we have come to the conclusion that the railway authority are not entitled to deduct more amount than what has been provided, of clause (d) of subsection (2) of section 7 and section 11 of tile Payment" Wages Act. They are not entitled to rely on clause (h) for the purposes of enhanced charges. Their claim to do so is against the provisions of Payment of Wages Act. In view of this the Rules framed by the Railway authorities under para 157 of the Pakistan Railway Establishment Code arc repugnant to the provisions of Payment of Wages Act, and the view of the subordinate Courts on this point appears to be correct. We, therefore, see no ground to interfere in the matter. The appeals are dismissed. The parties are left to bear their own costs." The point involved before us is totally different. No deductions are being made out of the total wages earned and duly paid by the petitioner. Another case is Divisional Superintendent N.W.R., Lahore v. Muhammad Sharif reported in P L D 1963 S C

340. The question involved in this appeal before the Supreme Court was whether an employee who had been dismissed from service but whose dismissal was held to be illegal by decree of a Civil Court and was consequently restored to his post again, was entitled to the salary for the period he remained off duty. The contention of the Railways was that the employee, remaining away from work had not "earned any wages." The contention was repelled. The Court made following observations at page 344:‑‑ "There may, however, be cases, where the employee without rendering service may be entitled to his remuneration. For example where the employee would be 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. In such a case the mere fact that the employee is not given work or cannot render service to employer will not derogate from the right to receive wages from the employer." Again, no such deductions are made in the present case and the principle laid down by the Hon'ble Supreme Court is in no way violated. Another case cited in P L D 1971 Lahore

355. In this case the word "May" used in rule 2004(F.R. 54) was interpreted to mean, "Shall". No such interpretation is involved as the petitioner, have allowed the respondent full salary for the period of suspension. The next case is Sardar Ali Bhutto v. Pakistan through General Manager, N.W.R Lahore reported in P L D 1961 Lah.

664. Rule 2004 (F.R. 54) fell for interpretation in this case before a D.B. of Lahore High Court. It was held that the word "may" used in this rule was not to be read as "shall". The Court declined to interfere with the findings of the competent authority on the question whether the acquittal should be treated as acquittal simpliciter or "honourable acquittal". The petitioner had prayed for a declaration to be issued to the competent authority to declare that the petitioner was "honourably acquitted", by the Magistrate before whom he had secured a discharge for lack of evidence against him. This case is not relevant for the decision of the point involved before us in this petition. Another case placed for our consideration is Divisional Superintendent, Pakistan Railways v. Wazir Ahmed decided by Mr. Z.A. Channa sitting as Labour Appellate Tribunal. It is reported in 1981 P L C.

618. Respondent Wazir Ahmed was involved in a murder case and remained in prison for about two years. He was given the benefit of doubt and acquitted by the Sessions Court. His contention that such an acquittal should be treated to be "honourable acquittal" entitling him to the benefits in clause (a) of rule 244 was accepted by the Labour Court and he was allowed full salary for the period of suspension. The Railway appealed against this order of the Labour Court. The appeal was allowed by the Tribunal. The following passage from the judgment of the Tribunal may be profitably reproduced:‑‑ "In the instant case a bare perusal of the judgment of the Sessions Court shows that the respondent was not honourably acquitted but was given the benefit of doubt. The respondent, therefore, would not be entitled to full wages for the period of his absence unless otherwise directed by the competent authority. In the instant case, the competent authority had directed that he would be paid only the suspension allowance for the Intervening period. If there had been no such order, the principle enunciated by their lordships of the Supreme Court in the case of Divisional Superintendent, N W R v. Muhammad Sharif (P L D 1963 S C 340), may have been attracted, but since there is a specific order of the competent authority in accordance with the provision of rule 2044 to the effect that the respondent would be allowed only suspension allowance during the intervening period, the appellants, were right in not allowing full wages to him for the intervene period Moreover, an employee can be allowed full wages even for the period for which he has not actually worked when he was ready and willing to work. 1n the instant case since the respondent was in jail, obviously he was not in a position to perform his duties for the appellants:" All the cases cited at the Bar and discussed above do not clinch the point involved in the present petition and as such are not of much assistance. The upshot of the above discussion is that this petition is allowed and the two orders Annex. A and B dated 21‑t)‑198 And 9‑4‑ 1983 arc hereby quashed and set aside. The action taken by the petitioner does not call for interference. The i full salary allowed to respondent by the Authority should be paid, if not already paid after deducting the payments made during suspension period in terms of rule 2003. In the circumstances parties are to bear their own costs. A.E./P‑64/K Petition allowed.