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Appeal No. SUK‑200 of 1979, decided on 2nd March, 1981.

‑‑ Ss. 25‑A & 37‑Railway employee‑Claim for wages of suspen sion period‑Employee placed under suspension due to being in Police custody on account of criminal case but re‑instated after acquittal by criminal Court‑Labour Court holding that acquittal was to be construed as honourable acquittal and allowing claim for full pay for entire suspension period‑Judgment of Criminal Court indicative that acquittal was on account of benefit of doubt‑Order of competent authority allowing only suspension allowances, in circumstances, upheld, and order of Labour Court set aside by Labour Appellate Tribunal‑‑Pakistan Railways Establishment Code, Vol II, rr. 2043 & 2044.

Sardar Ali Bhatti v. Pakistan P L D 1961 Lah. 664 and Divisional Superintendent, N. W. R. v. Muhammad Sharif P L D 1963 S C 340 rel.

Shabbir Ahmad Awan for Appellants.

Nemo for Respondent.

Date of hearing: 2nd March, 1981,

The respondent, who was employed as a Loco Muawan at the Loco shed Rohri, was arrested in a private murder case on or about 9th June, 1974. It. appears that he remained in custody in connection with that case upto 12th April, 1977, when he was released on bail. Ultimately he was acquitted by the Sessions Court whereafter he reported for duty. The appellants, while permitting the respondent to resume his duties, have allowed him only suspension allowance during the period that he was in custody and was not working for the appellants, on the ground that the respondent had been placed under suspension during the intervening period and though the orders of suspension had been withdrawn, since the respondent had not been honourably acquitted, he was not entitled to full wages for the said period. The respondent brought his claim before the learned Labour Court which has taken the view that an acquittal in a criminal case is to be construed as an honourable acquittal and that as a matter of fact there is no distinction between honourable acquittal and acquittal simpliciter. The learned Labour Court has, therefore, directed that the respondent be paid full wages for the person that he was under suspension. Aggrieved by this decision the appellants have come up in appeal to this Tribunal.

2. I have heard Mr. Shabbir Ahmad Awan, who appeared for the appellants while the respondent has chosen to remain absent and un represented.

3. The case rests on the interpretation of rule 2044 of the Pakistan Railways Establishment Code, Volume II, rules 2043 and 2044 in the said code read as follows:‑

"2043. (F. R. 53). 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 revert to military duty, to the pay and allowances to which he would have been entitled had 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 rate as the suspending authority may direct, but not exceeding one‑fourth of the pay of the suspended railway servant

Provided that the suspending authority may direct that the Government servant under suspension shall be granted in addition such compensatory allowances as the Governor General may sanction by general or special order for issue under this proviso.

2044. (F. R. 54) Pay after re‑instatement.‑‑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, re moved or suspended is reinstated, the revising or appellate authority may grant to him for the period of the absence from duty :‑‑

(a) If he is honourably acquitted, the full pay to which he would have been entitled if be 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 directs."

4. A bare perusal of the above Rules makes it clear that if an official is placed under suspension then he is entitled to full wages only if he is honourably acquitted, but if the acquittal is not honourable, his absence will not be treated as a period spent on duty unless the revising or the appellate authority so directs.

5. The term "honourably acquitted" As appearing in rule 2044 came up for consideration before a Division Bench of the Lahore High Court in the case of Sardar Ali Bhatti v. Pakistan (P L D 1961 Lah. 664). In this behalf their Lordships observed as follows :‑

"The expression honourably acquitted' is not defined in the rules or anywhere else. We shall, therefore, give the same meaning to it as : it conveys in its ordinary and natural sense. Its ordinary meaning is that it has been found that the person concerned had been accused of the offence maliciously and falsely, and that after his acquittal no blemish whatsoever attaches to him. In cases where the benefit of doubt is given to him or where he is acquitted because the parties on account of some extraneous influence have resiled from their statements, then we think that in spite 'of the acquittal the person concerned cannot be deemed to have been "honourably acquitted". This expression is not recognized in the Code of Criminal Procedure. There only the word acquittal' is used. It is, therefore, obvious that it is not the function of the Criminal Court to declare that the person concerned has been honourably acquitted or not. Having regard to the scope and meaning of the aforesaid rule, we think that it is for the revising or Appellate Authority to form its opinion on the material placed before it, whether such a person has been honourably acquitted or not. It is left to the absolute subjective discretion of the authority. If the authority takes the decision by using its discretion and judgment, that the person concerned has not been honourably acquitted, then in exercise of writ jurisdiction this Court cannot convert itself into a Court of appeal and substitute its opinion for the opinion of the competent authority. But in the circumstances of the present case, and in the light of what has been stated above as to the meaning of the expression honourably acquitted" it is difficult to hold, even if we had the power to substitute our opinion, that the decision of the competent authority is wrong."

6. 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 authori ty 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 ease 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 authori ty in accordance with the provision of rule 2044 to the effect that the respondent would be allowed only suspension allowance during the inter vening period, the appellants were right in not allowing full wages to him for the intervening period. Moreover, an employee can be allowed full wages even for the period for which he has not actually worked when h was ready and willing to work. In the instant case since the responder was in Jail, obviously he was not in a position to perform his duties for the appellants.

7. For the reasons discussed by me above, I would set aside the decision of the learned Labour Court and allow the appeal.

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