1. M. SALEEM CHAUDHRY (CHAIRMAN).----In this appeal instituted on 12-2-1977, the appellant is aggrieved of the order of the Deputy Commis--sioner, Lahore, dated 4-5-1976, refusing to pay him arrears of pay for the period he remained dismissed from service, i.e. From 26-1-1967 to 4-5-1976.
2. He is also aggrieved of the order of the Commissioner, Lahore Division, dated 3-1-1977 rejecting his appeal against the aforesaid order. The brief facts of the case are that the appellant, a Junior Clerk employed in the office of the Deputy Commissioner, Lahore, was involved in a criminal case under section 161, P. P. C. Read with section 5(2) of the Prevention of Corruption Act 1947 in which he was Convicted by the Special Judge, Anti-Corruption and sentenced to 6 months' R. I. With a fine of Rs.
3. 200 on 26-1-1967. The Deputy Commissioner, Lahore dismissed him from service, w.e.f. The date of his conviction. The appellant, however, challenged his conviction and sentence before the Lahore High Court in an appeal which was accepted by Mr. Justice Gulbaz Khan, on 23-12-1974, holding as under :- "Under these circumstances, it cannot be said that the statement of Sahib Din P. W. Could be accepted without independent corroboration. There is no evidence to the effect that this amount had been passed on as illegal gratification and the accused had promised to show favour to Sahib Din P. W. The statements of the Magistrate and the Police Inspector cannot be taken to be a corroborative piece of evidence. Their statements would simply show that the tainted currency notes had been recovered from the appellant. The recovery was not denied by the appellant. Since there is no evidence as to what talk took place between the accused and Sahib Din P. W. And the fact of loan given to Sahib Din P. W. Stood established from the evidence on record. I hold that the case was not free from doubt."
4. It appears that the appellant, after his acquittal in the above case, approached the Deputy Commissioner, Lahore, for re-instatement, who rejected the plea of the appellant vide his order dated 5-2-1975, holding that this was not a case of honourable acquittal. However, on an appeal to the Commissioner, Lahore Division, vide his order dated 19-6-1975, remanded the case with the direction to reconsider the case in the light of SGA & I Department letter No. S(R) 1-13/51-SO.-XXII, dated 10-1-1959, which provided requisite guidance in such cases. On reconsideration, the Deputy Commissioner, Lahore, vide his order dated 4-5-1976, held that the appellant was entitled to re- instatement, but observed that since the acquittal of the appellant did not appear to be quite honourable, therefore, he was not entitled to any salary for the period he did not work, vie. From 26- 1-1967 to 4-5-1976. Further appeal to the Commissioner, Lahore Division, was also rejected on 30-1- 1977 holding that according to S&GAD letter referred to above, the burden of proof was on the appellant to satisfy that he was honourably acquitted. Since he had failed to do so, therefore, he was not entitled :o any salary for the period in dispute. The learned counsel for the appellant, however, relied upon the acquittal order passed by the Lahore High Court, in this case in which it was held that there was no evidence as to what transpired between Sahib Din P. W. And the appellant at the time of exchanging the money and it was also established on record that the said Sahib Din P. W. Had taken loan from the appellant. According to the learned counsel for the appellant, the aforesaid findings lent considerable support to the defence version that the money in question was received by the appellant in lieu of the loan which Sahib Din P. W. Owed to him. He thus submitted that the prosecution case having been disproved it was a clear case of honourable acquittal. He also relied upon the decision of this Tribunal in Appeal 872/488 of 1974 in which instructions of the S&GAD dated 10-1-1959, referred to above, were considered and the Tribunal had held that the instructions in question had been issued at a time when the concept prevailed that the salary was not the right of a civil servant but the bounty of the State. The said concept had since undergone a change as held by the Lahore High Court in In re : Mrs. A. V. Isaacs (PLD 1970 SC 415), thus the arrears of salary were allowed. The learned counsel also relied upon the decision of the Sind Service Tribunal reported as 1976 PLC (C. S. T.) 107 to support the proposition That if the acquittal of the appellant was based on the finding that the evidence did not establish the charge but the judgment of acquittal purported to give benefit of doubt to the accused it could be examined and it could be held that the accused should be treated to have been honourably acquitted with full benefits of pay and allowances, treating tire entire period having been spent on duty. The following observations from the aforesaid order were relied upon :-- "In view of the above clear findings the Board of Revenue had no justification to show that the appellant was not honourably acquitted. Therefore, the order in question is covered by rule 152(6), as held by the Board of Revenue, respondent No. 3. The appellant got a clear honourable acquittal and he is entitled to full salary and allowances for the period of suspension from 5-8-1955 to 15-5- 1959 and rule 152(a) of Sind Civil Service Rules, Volume I, should be applicable to him."
5. The learned Government pleader, on the other hand, argued as held by the Supreme Court of Pakistan in PLD 1976 SC 202 that the departmental authorities had the powers to examine and to decide the issue in each case. He also invited our attention to the provisions of rule as contained in rule 7.3 of the C. S. R. (Punjab), Volume I, Part I, which was to the following effect:--- "7.3. When the suspension of a Government servant is held to have been unjustifiable or not wholly justifiable ; or When a Government servant who has 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 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.
6. In a case falling under clause (a), the period of absence from duty will be treated as period spent on duty. In a case falling under clause (b), it will not be treated as a period spent or: duty unless the revising or appellate authority so directs."
7. After hearing both the parties, we are of the view that no doubt the provisions Contained in rule 7.3 above, empowered the provincial Government to examine the nature of the acquittal of the appellant in Court proceedings and the Supreme Court of Pakistan in the ruling relied upon by the Govern--ment pleader also has upheld the contention of the Department in this behalf, 'but on the facts of the case, we find that the learned Judge while deciding the criminal appeal filed by the appellant had observed that- " . . . . The material point for decision is as to whether the accused had received this money as illegal gratification or it was the amount of loan which was paid to Sabib Din P. W. Through Taj Din.
8. This is also clear from the various applications that the accused was not in a position to show any favour to Sahib Din as the disputed land had been put to auction and purchased by Ghulam Sadiq.
9. Sahib Din admitted in cross-examination that he had received a sum of Rs. 100 from Taj Din of Kahna Kachha because his wife was sick."
10. After the above observations, the learned Judge came to the conclusion that--- ". . . , there was no evidence to the effect that this amount had been passed on as illegal gratification and the accused had promised to show favour to Sahib Din P. W.".
11. In this state of facts, it is difficult to hold that the learned Judge had any doubt about the defence plea that the money in question represented the return of the loan due to appellant from Sahib Din complainant. We are in complete agreement with the views of Sind Service Tribunal expressed in 1976 PLC (C. S. T.) 107 that the judgment had to be seen in substance and if the same showed that the charge had not been proved, the acquittal has to be treated as `honourable'. We hold that in this case, the charge was not established against the appellant and thus the acquittal was honourable. We accordingly accept this appeal and the order of the Deputy Commis--sioner and Commissioner, Lahore Division, are therefore, set aside. Consequently, the appellant is held to be entitled to the salary and allowances admissible for the period he remained dismissed from service. However, there will be no order as to costs.