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Civil Appeal No. 32 of 1959, decided on 11th November 1959,

(On appeal from the orders of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 7th November 1957, and 9th January 1959, in Writ Petition No. 633 of 1957 and Supreme Court Petition No. 48 of 1958).

Arrears of salary‑Pay after re‑instatement, for period of suspension‑(Government servant: Railway employee) Claim negatived by Divisional Superintendent on strength of rule which was inapplicable‑Mandamus granted directing consider ation and decision of case under proper rule‑Pakistan Railway Establishment Code, Rule 2044 (F. R. 54)‑Constitution of Pakistan (1956), Art. 170.

S. M. Sohail Advocate Supreme Court instructed by Shujjat Ali Attorney for Appellant.

Respondent No. 1 not represented.

Khalid Ishaq Additional Advocate‑General West Pakistan instructed by Muhammad Ali Syed Attorney for Respondents Nos. 2 & 3.

Date of hearing: 11th November 1959.

.‑--This is an appeal by special leave from an order of a Karachi Bench of the High Court of West Pakistan summarily dismissing the appellant's application for a writ of mandamus.

The appellant, Ghulam Mustafa Shah, who was in the service of the N.‑W. Railway was first reduced from the rank of Assistant Station Master to that of Signaler and then dismissed from service. He filed a civil suit challenging the validity of both the orders and on counsel for the Railway admitting the claim the suit was decreed by a declaration that the reduction of the appellant from the rank of Assistant Station Master to the lower rank of Signaler and his subsequent removal from service were void and inoperative. For the period during which he remained absent from duty due to his suspension and sub sequent dismissal the appellant put in a claim for salary, but the claim was negatived by the Divisional Superintendent, N.W.R., Karachi on the ground that the period in question had been treated by him as extraordinary leave without allowances within the meaning of rule 2026‑R‑I1 read with rule 2022‑R‑II of the Pakistan Railway Establishment Code, Volume 11 (1952), and that no salary for that period was admissible. Being aggrieved by this order the appellant applied for a Writ of Mandamus but the application was summarily dismissed by the High Court.

It is now conceded before us by Mr. Khalid Ishaq who appears for the Department that neither of the rules referred to in the order of the Divisional Superintendent was applicable and that the matter is governed by rule 2044 (F. R. 54) which reads as follows :‑

"Pay after re‑instatement.‑When the suspension of a railway servant is held to have been unjustified or not wholly justifi able ; or

when a railway servant who had been dismissed, removed or suspended is re‑instated ;

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.

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 direct."

It is perfectly clear from this rule that it is within the discretion of the revising or appellate authority to grant to a railway servant who has been dismissed, removed or suspended such proportion of his pay and allowances as that authority may prescribe. Since the appellant's claim was negatived by the Divisional Superintendent on the strength of a rule which is inapplic able and the rule that governs the situation was not at all present to the mind of that authority, it is obvious that the case must be reconsidered in order to determine whether the appellant entitled under rule 2044 to any proportion of the pay an allowances for the period during which he remained out of office. We, therefore, set aside the order of the High Court dismissing the application for a Writ and issue a writ of mandamus directing the General Manager, N.‑W. R., Lahore, to place the case before the revising authority for consideration and decision under rule 2044 of the Pakistan Railway Establishment Code Volume II (1952). The parties will bear their own costs in this Court.

A. H. Mandamus issued.

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