' This Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 arises out of the following facts :-
2. The respondents 3 to 10 are employees in the Pakistan Railways, out of them respondent 3 is serving as train examiner whereas respondents 4 to 10 are cleaners in the carriage branch of Pakistan Railways at Mirpurkhas. They were arrested on 2nd August, 1974 under sections 19 and 20 of Maintenance of Public Order, 1960 and sections 120 and 121 of Railway Act and section 10 of Essential Services Act, 1971. They were placed under suspension as a result of their arrest with effect from the day of their arrest and payment of 50% wages during the period of their suspension was made to them. The Police after usual investigation sent up the respondents to stand trial in the Court of S. D. M., Mirpurkhas. But subsequently the case against them was withdrawn by the Government and they were discharged under section 253. Cr. P. C. They were re-instated as a result of discharge from the case and put on duty by the Railway Administration with effect from 20th May, 1975. They put in an application on 16th January, 1976 for payment of' the arrears of their salaries for the period of suspension i,e, from 2nd August, 1974 to 20th May, 1975. The Revising/Appellate Authority of the Railway Administration treated the period of their suspension as leave without pay and did not make any payment for this period. The respondents then filed their applications under section 15 read with section 16 of Payment of Wages Act before the respondent No, 2 for a direction to the petitioner for the payment of the arrears of their salaries for the abovesaid period of suspension. The petitioner contested the claim of the respondents on the ground that their case having been treated as leave without pay they were not entitled to the wages. The respondent No, 2 after hearing the parties allowed the application for the respondents on 4th May, 1977. The petitioner filed the appeal before the respondent No. 1 who also dismissed it under his order dated 1st November, 1977.
' The case set up by the petitioner before the respondents Nos. 1 and 2 was that the respondents had acted illegally and without lawful authority therefore the railway administration was bound to suspend them after their arrest and they were therefore not entitled to arrears of the wages for their suspension period as their acquittal was not honourable and that the finding of the respondent No, 2 was without jurisdiction. The defence of the respondents was that they were suspended on the very day of their arrest without serving any show-cause notice or charge-sheet on them. They were not served with any charge-sheet even during their suspension period and they were directly allowed to resume their respective duties on withdrawal of case. Therefore their arrest as well as suspension were not justified.
3. The learned counsel for the petitioner contends that respondents were entitled to full pay only in case of honourable acquittal which is not the case of the respondents. Such cases have been dealt with under rule 2044 (F. R. 54) of Pakistan Railway Establishment Code. He has placed his reliance on PLD 1961 Lah.
664. The rule 2044 has given discretion to the Revising/Appellate Authority to grant full pay or otherwise as it deemed fit in view of the circumstances of each case. Since the acquittal of the respondents has been held to the "not honourable Acquittal" by the Revising/Appellate Authority of the Railway Administration it was not within jurisdiction of the respondent No, 2 to have interfered with his discretion and the conclusions of the respondent No. 1 were also erroneous and hot warranted by law.
4. Mr. Sadiqally G. Khoja, the learned counsel for the respondents has on the other hand contended that the arrest of the respondents was not in any offence involving moral turpitude. Moreover the railway administration has not conducted any enquiry involving their acts which led to their arrest by the police. They were not even charge-sheeted for it. As far as the withdrawal of case against them is concerned, they were let off even before any charge was framed against them and the effect of such withdrawal would be a "discharge" of the respondents and question of acqtal, 'honourable or not' did not arise. Moreover their arrest and suspension were without jurisdiction and the in all fairness were entitled to the full pay to which they would have been entitled if they had not been suspended. The refusal by the Revising/Appellate authority of the Railway administration was undoubtedly mala fide and has been rightly treated as such by the Courts below under the circumstances of the case. He relies upon PLD 1977 Kar.
83.
5. I have heard the learned counsel for the petitioner as well as respondents 4 to 10. The respondent No, 3 is absent and service by publication has already been held good in his case. I have also gone through the citations referred to above by the learned counsel for the parties and have considered their contentions. The point which requires consideration before coming to the conclusion about honourable acquittal or otherwise is, if the respondents' suspension was justified and if proper enquiry into the circumstances which led to their arrest and suspension of the respondents was ever held. I don't think every arrest resulting in suspension of it the railway employee would be sufficient to deprive him of his full pay in terms of rule 2044 of Pakistan Railway Establishment Code unless such suspension has been held to be justified after enquiry. In this case, the respondents have not been even served with any charge-sheet. Moreover they were not arrested in any offence involving moral turpitude. Their arrest is on the charges which have never been enquired into either by the Court or by the railway administration. The order of the Revising appellate Authority of the Pakistan Railway, depriving the respondents of their full pay has rightly been treated as mala. Fide. I think, it is against natural justice also as the order in question has been passed without holding any enquiry and affording opportunity to the respondents to put in their case before the Authority. It seems that the respondents were discharged under section 253, Cr. P. C., as stated by the petitioner in para. 5 of this petition, therefore question of acquittal honourable or otherwise did not arise under the circumstances of the case. The respondents Nos. 1 and 2 have arrived at right conclusion and do not find any fault with their orders which are accordingly maintained. The citation referred to above by the learned counsel for the petitioner will not be of any help to him as the facts and circumstances in this case are quite different from the above. Reported case.
6. In the result I do not find any force in this petition and accordingly dismiss i.