1976 PLP [C (PLC(CS))

HAMZO KHAN M. KURESHI (CHAIRMAN).‑The appellant was appointed as Tappedar on 5‑3‑1944 in the Revenue Department of District Nawabshah and had been serving as such till August, 1955 when while posted as Tappedar in Taluka Naushahro Feroze, he was involved in 9 criminal cases by the Anti-Corruption Police allegedly at the instance of some big Zamindars. He was sus pended on 5‑8‑55 but after lengthy criminal trials he was acquitted in all the 9 cases. As a consequence of his acquittals he was, on his application dated 5‑11‑59, re‑instated and put to his former position by the Deputy Commissioner, Nawabshah vide his letter No. I B/Estt. 778 of 1959, dated 7‑12‑1959. Deputy Commissioner however, ordered a departmental inquiry against the appellant in all the nine cases. This inquiry was conducted by Deputy Collector Naushahro Feroze who gave him a clean slate in all the cases holding that he was not to blame in any manner. The appellant states that after the findings of the Courts of law and the Inquiry Officer in his favour he should have been paid his full salary and allowances and promoted according to his seniority and given all the other benefits, in spite of applications made by him nothing was done by the authorities. He submits that the Deputy Commissioner, Nawabshah had through his letter dated 2‑7‑73 reques ted the Board of Revenue for a decision with regard to the appellant's pay and allowances for the period of suspension. The Board of Revenue without giving any opportunity to the appellant passed an order on 10‑12‑73 holding that the period from 5‑8‑1955, to 18‑12‑1959 during which Muhammad Ayub (appellant) had remained under suspension, should be treated as period spent "under suspension" according to rule 152 (b) of the Sind Civil Service Rules Volume I. It is this order which is the subject matter of the present appeal. The appellant contends that the order dated 10‑12‑1973 passed by Board of Revenue was illegal and bad in law having been passed without notice to him. He states that after his re‑instatement and having been put in the former position, the question of deciding the nature of period of suspension could not arise because that question had already been settled and it could not be revised by the Board of Revenue without notice to him. Another contention of the appellant is that he was honourably acquitted in all the 9 criminal cases and even in the nine departmental inquiries on the same charges nothing was found against him hence there was no justification to pass the impugned order as nothing was proved against him at any stage. Further more the delay in passing this order after about 14 years was itself a proof of mala fides on the part of the respondents. Hence he prays that the Tribu nal may declare the order of the Board of Revenue dated 10‑12‑73 to be bad, illegal, mala fide, without jurisdiction and consequently without any effect against him. It is also prayed that the Tribunal may direct the respondents to promote the appellant according to his seniority and also to pay him all his dues from 5‑8‑55 to 18‑12‑

59. The respondents admit that the appellant was acquitted in all the nine criminal cases and that n6thing was found against him in the departmental inquiry on the same charges but he was "not honourably" acquitted in all the criminal cases. Their contention is that the appellant in some cases was acquitted on account of "benefit of doubt" only hence he was not entitled to his full salary and allowances during the period of suspension. The respon dents claim that the question of giving an opportunity to the appellant was not material as under the rules he was not entitled to claim any benefit while he was under suspension. It is also urged that the appellant had a bad record of service. This last contention is against the findings of the Courts of law and the Inquiry Officer. If he had a bad service record, the respondents could order a fresh inquiry against him after adopting the proper and legal procedure but they could not condemn him without bearing him. We have fully heard the learned advocates of both the parties and perused the relevant documents on record. The most debatable question is whether the acquittal of the appellant by the Court of law amounts to "honourable acquittal." We have gone through the original add appellate judgments of acquittal passed in all the nine cases filed against the appellant. Except in one appellate judgment, the words "benefit of doubt" do not appear in any other judgment. This means he got clear and honourable acquittals in those cases. The only case in which the High Court has given him "benefit of doubt" is criminal appeals Nos. 437, 492 and 493 which were disposed of by one judgment. In this judgment his Lordship hag been pleased to observe in para 7 as under:‑ "

7. The case of the appellant Muhammad Ayub (appellant) however, can be distinguished. There is no evidence to suggest as to what is the part played by him. The only evidence on record is that he had mutated the Record of Rights in the name of the appellant Muhammad Saleh. He by no means, can be said in conspiracy to have done it merely because there exists a clear order from the Mukhtiar kar as well as from the Head Munshi directing him to mutate the Record of Rights in the name of Muhammad Saleh. He being a petty subordinate had no other option open to him but to accept the orders of the superiors and mutate the record accordingly. It was none of his concern to have verified as to whether the orders passed by the Mukhtiarkar and the Head Munshi were passed on any valid document. According to me, the evidence against him does not establish the charges framed against him. I therefore give him benefit of doubt and acquit him." His Lordship was very much definite that there was no evidence to sug gest as to what was the part played by the appellant as he had acted on clear orders from the Mukhtiarkar and the Head Munshi and being a petty subordinate he had no other option but to accept the orders of his superiors. His Lordship has clearly concluded that "the evidence against the appellant doer not establish the charge framed against him." In the end however his Lord ship has been pleased to give him benefit of doubt and acquit him. Of course the word "benefit of doubt" does appear at the end but by reading the judgment as a whole one cannot but arrive at the conclusion that his Lordship could not have intended to allow any stain to remain against the appellant in view of his clear findings that the charges framed against the appellant were not established and that there was no evidence as to the part played by him and also that being a petty subordinate he had no option but to act according to the orders of his superiors. The other factor in favour of the appellant is that after his acquittal in this particular matter as well as in the remaining cases, departmental inquiries were held against him by Deputy Collector, Naushahro Feroze under the directions of the Deputy Commissioner Nawabshah but nothing was found against him. In all the 9 cases it was held by the Inquiry Officer in clear words that "the Tappedar cannot be blamed for it and that no punishment can be awarded to him as a result of these departmental proceedings." In view of the above clear find ings the Board of Revenue had no justification to say that the appellant was not "honourably acquitted." Their order is not tenable and must be set aside. It cannot be said that the appellant's case was covered by rule 152 (b) as held by the Board of Revenue, respondent No.

3. The appellant got a clear and honourable acquittal and, he is entitled to full salary and allowances for the period of his suspension from 5‑8‑1955 to 18‑12‑1955. Rule 152 (a) of Sind Civil Service Rules Volume‑I would be applicable to him. The inordinate delay in deciding the case of the appellant is another factor which has caused prejudice and hardship to him. We therefore come to the conclusion that the order of respondent No. 3, dated 10‑12‑1973 is not tenable and therefore inoperative against the appellant. It is set aside and the appeal of the appellant is allowed to the extent that he would be entitled to his full salary, allowances and other benefits from 5‑8‑1955 to 18‑12‑1959. This period should be treated as duty and the appellant should be paid all his dues for this period including his salary and other allowance after deducting what he has already got by way of subsistence allowance or otherwise. The other prayer regarding promotion cannot, however, be granted as this Tribunal has no jurisdiction to do so by virtue of proviso (b) of section 4 of the Sind Service Tribunals Act.