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Appeal No. 7 of 1982, decided on 12th October, 1982.

‑‑ R. 152‑Arrears of pay‑Appellant caught accepting illegal gratification in raid by Anti‑Corruption Special Police‑Special Judge, Anti‑Corruption acquitting him finding that case was not fit for conviction on account of quality of evidence‑No indication in judgment that case considered as false or there was possibility of attempt on part of complainant to get him falsely implicated -Suspension period not treated as duty and allowed only subsistence allowance already drawn during suspension period‑Held Appellant, in circumstances, could not be said to have been honourably acquitted hence cl. (a) of r. 152 not applicable and order passed under cl. (b) of r. 152 refused to be interfered with by Service Tribunal‑Sind Service Tribunals Act (XV of 1973), S.4.

Naimatullah Qureshi for Appellant.

A. A. Muhammadally, A. A.‑G. for the Government.

Date of hearing: 12th October, 1982.

The appellant was posted as Senior Clerk in the office of Survey Superintendent, Khairpur. One Bakshal Sether alleged that the appellant had demanded from him illegal gratification of Rs. 300. The Special Police Anti‑Corrup tion arranged the trap. In presence of a Magistrate, the tainted money was recovered from the cot inside the house of the accused. The appellant was then challaned before the Special Judge, Anti‑Corruption. During the trial, appellant was placed under suspension by Director, Settlement from 9th May, 1977 to 8th May, 1978. The case was finally decided by Mr. Abdul Jabbar Bachani, Special Judge, Anti‑Corruption, Sukkur on 7th April, 1981. In the opinion of the Judge it was not a fit case for conviction because the Magistrate himself was accused in corrup tion cases after the trap and evidence of the Mashie and complainant did not inspire confidence. There were also discrepancies in the evidence of the Circle Inspector and the Magistrate regarding the fact as to who prepared the mashirnama of securing the tainted money.

By an order dated 19th July, 1981 of the Secretary to Government of Sind Revenue Department, the suspension period from 9th May, 1977 to 8th May, 1978 of the appellant was to be treated as one spent under suspension and for that period the subsistence allowance already paid to him was considered sufficient. Against this order the appellant preferred a review petition before the Secretary Revenue Department which was rejected on 24th October, 1981. On the same day the appellant preferred an appeal to the Chief Secretary and on expiry of 90 days the present appeal under section 4 of the Sind Service Tribunals Act, 1973 was filed.

The only question arising for decision is whether the order regarding payment of arrears for the period of suspension is illegal or unjust or the direction determining the proportion of pay and allowances has not been properly exercised.

The case regarding payment of arrears on setting aside the order of suspension is governed by rule 152 of the Sind Civil Service Rules Volume I, Chapter VIII. Under this Rule if the suspension of the 0overnment servant is held to have been unjustifiable or not wholly justifiable or when a Government servant who has been dismissed, removed of suspended is re‑instated, the revising or appellate authority may grant for the period of absence from duty :‑

(a) If he is honourably 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.

In a case falling under cause (a) the period of absence from duty will be treated as a period wept on duty. In a case falling under clause (b), it will not be treated to be a period spent on duty unless the revising or appellate authority so direct.

In the present case the appellate authority namely the Secretary Revenue Department has treated the period under clause (b) as one not spent on duty.

It has been argued by Mr. Naimatullah Qureshi on behalf of the appellant that the said period should have been considered as period spent on duty, and since he appellant had subsequently after reinstate ment been honourably acquitted according to the judgment of the Special Judge, Anti‑Corruption he should have been allowed full pay and allowance for the period. On perusal of the judgment we find that the learned Special Judge has not considered the case to be fit for conviction on account of the quality of evidence that was produced before him. The Magistrate was not considered reliable because there were Anti‑Corrup tion cases filed against him. While the evidence of Circle Inspector, mashir and the complainant was also not found to be worthy of evidence. There are no indications in the judgment that the case was considered to be false or that there was possibility of an attempt on the part of the complainant to get the appellant falsely implicated. The circumstances were, that the complainant had been admitted into the private house of the appellant and the tainted money was found lying on the cot on which they were sitting. It cannot, therefore, be said that the appellant has been honourably acquitted. Clause (a) of rule 152 has, therefore, no application to the case of the appellant. Under the circumstances there is no ground for interference with the exercise o the discretion by the revising or appellate authority.

In the result the appeal is dismissed with no order as to costs.

Appeal dismissed.

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