1989 PLP 129 (PLC)

"There remains no doubt that the case was registered mala fide which was without substance and poorly investigated. One fails to understand that Hasan Akhtar Baig, Permanent Way Inspector, was included amongst the accused persons as there is no allegation against him. In view of the above discussion, I am of the considered opinion that the prosecution has miserably failed to prove the case against the accused persons who are ordered to be acquitted."

3. In other words, all the accused persons, including the petitioner, were honorably acquitted because no case had been made out at all against them. After the acquittal the suspension order passed against the petitioner was cancelled on 29‑11‑1978 and the period of suspension from 30‑1‑1976 to 25‑10‑1977 was considered as duty. During the period of suspension the petitioner was given half pay as subsistence allowance. He, thereupon, submitted an application under section 15(2) of the Payment of Wages Act on 6‑5‑1978 claiming Rs.9,350.60 and ten times compensation. The Authority under the Payment of Wages Act, vide order dated 28‑1‑1979, allowed Rs.4,718.05 and not Rs.9,350.60 because half of the amount had already been paid to the petitioner. Against that order the petitioner filed an appeal before the Appellate Authority under the Payment of Wages Act/Punjab Labour Court No. 2, Lahore, which dismissed the same in limine on 1‑3‑1979.

4. Aggrieved by the above order, Ehsan‑ul‑Haq Khan, petitioner has preferred this revision petition.

5. The first point for consideration is as to whether the revision is competent. For the reasons mentioned in my judgment in the case, "Muhammad Ilyas Khan v. Divisional Superintendent, Railways, Multan 1979 P L C 1 the revision is competent and I have jurisdiction to entertain it.

6. Now the next point which requires determination is as to whether a person under suspension, who has been getting subsistence allowance is entitled to get full wages after his acquittal or only the remaining half of the wages. Rule 2003(27) of Pakistan Railways Establishment Code, Volume‑2 defines subsistence allowance as under:‑ "Subsistence grant" means a monthly grant made to a railway servant who is not in receipt of pay or leave salary. PAY DURING SUSPENSION.‑‑A railway servant under suspension is entitled to the following payment:‑ (a) In the case of a warrant officer, who is liable to be reverted to military duty, to the pay and allowance to which he would have been entitled had he been suspended while in military employment. (b) In the case of railway servants other than those mentioned in clause (a) above, the subsistence grant at such rates as the suspending authority may direct, but not exceeding one‑fourth of the pay of the suspended railway servant. This rule was amended later on and instead of one‑fourth, one‑half of the pay was substituted. The aforementioned clause (b) is applicable to the instant case. Rule 2044 (F.R. 54) reads as under:‑ 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 honorably 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.

7. In the case falling under clause (a), the period of absence from duty would be treated as period spent on duty. In the case falling under clause (b), it would not be treated as period spent on duty unless the revising or appellate authority so directs.

8. Now the question for interpretation is as to whether the word `may' underlined above, has to be read as `shall'. The Lahore High Court in the case "Divisional Superintendent (Workshop), P.W.R., Lahore v. Muhammad Shafi P L D 1971 Lah. 355 observed as under:‑ "The word `may' used in Fundamental Rule 54 for the purpose of grant of pay, etc., for the period of absence from duty has to be construed as `shall' in the case of the persons honorably acquitted and falling under clause (a). If this interpretation is not given to the word `may' in clause (a) it will render the entire sub‑clause (a) of Fundamental Rule 54 as wholly redundant. If the matter of pay and allowances of the persons honorably acquitted was to be left to the discretion of the revising or appellate authority, then it was not necessary to divide Fundamental Rule 54 into clauses (a) and (b). It would have been sufficient to say that the revising or appellate authority may grant to him for the period of his absence from duty such proportion of pay and allowances as it may prescribe. But the division of Fundamental Rule 54 into clauses (a) and (b) clearly denotes that the man who is honorably acquitted will be entitled to the full pay, etc. to which he would have been entitled if he was not dismissed, removed or suspended."

6. As already mentioned above, the petitioner, in this case, was honorably acquitted and his case fell under clause (a) and, therefore, he was entitled to full pay for the period of his suspension from 30‑1‑1976 to 24‑10‑1977 to spite, of the C fact that he had received subsistence grant during that period. Since he has already been granted Rs.4,718.05 by the Authority under the Payment of Wages Act, he is now entitled to another sum of Rs.4,632.55.

10. I accordingly, accept the revision petition, set aside the order of the Labour Court/Appellate Authority, modify the order of the Authority under the Payment of Wages Act and direct that the petitioner be given another sum of Rs.4,632.55. S.Q./592/Lb.P Petition accepted.