' Syed Arshad Ali, Member .--The appellant through the instant appeal assailed the impugned order issued vide No, 730- E/555/PRP/7121-26 dated 19.07.201 1 whereby the intervening period during which he remained off duty w,e,f, 27.04.2009 to 07.12.2010 (590 days) was decided as leave without pay alongwith the awaiting period to join duty w,e,f, 24.11.2010 to 08.12.2010. The appellant preferred departmental representation dated 15.08.201 1 for treating the period as spent on duty which was rejected vide order dated 16.01.2012; hence, this appeal praying that the impugned order dated 19.07.201 1 be set aside and the intervening period w,e,f, 27.04.2009 to 07.12.2009 (590 days) and awaiting to join duty period w ,e,f, 24.1 1.201 1 to 19.07.201 1 be also treated as spent on duty .
2.Pursuant to the pronouncement of judgment of this Tribunal dated 15.11.2010 in Appeal # 89(K)CS/2009 filed by the appellant against the impugned order of his dismissal from service vide order dated 28.04.2009, the appellant was reinstated in service and the respondents were directed to conduct denovo proceedings within a period of 120 days after receipt of the copy of the judgment. The appellant was allowed to join duty on 08.12.2010. The Deputy Superintendent Railways Police (A) was appointed as inquiry officer to conduct denovo proceedings vide order dated 08.12.2010.The inquiry of ficer issued, statement of allegations reproduced as under:- "That you had stolen one suit case of lady passenger namely Mst. Sanober Ali containing golden ornaments & other articles while on train escort duty with train 146-Down "Sukkur Express" on 09.10.2008 as a result of which Case FIR No, 21/2008 u/S. 379, PPC and 14 HO was registered against you on the complaint of the said lady passenger at RPS Padidan on 05.1 1.2008.
' You also remained absent from duty from 05.1 1.2008 to 29.12.2008 (55) days without any or prior permission"
' In response thereof, the appellant submitted reply to the charge sheet/statement of allegations to the inquiry officer. The inquiry officer exonerated the appellant from the charges levelled against the appellant. The Respondent # 2 disagreed with the report of inquiry officer exonerating the appellant issued a show-cause notice on 07.06.201 1 reproduced here as under:- "That you stolen one suit case of lady passenger namely Mst. Sanober Ali containing golden ornaments & other articles from train 146-Down "Sukkur Express" on 09.10.2008 during your train escort duty with the train. As a result of which Case FIR No, 21/2008 u/S. 379, PPC and 14 HO was registered against at RPS/Padidan on the complaint of said lady passenger regardin g stolen her suit case which is under trial in the Court. In the meanwhile you remained absent from duty from 05.11.2008 to 29.12.2008 (55) days without any or prior permission. I do not agree with the denovo departmental proceeding finding/report conducted by the Acting DSRP-A. Sukkur"
' The above show-cause notice too was responded by the appellant rebutting the charges. The respondents through an impugned order dated 19.07.2 011 decided the intervening period w,e,f, 27.04.2009 to 07.12.2010 (590) days as leave without pay and no decisio n was taken for the awaiting period of the appellant before the appellant was allowed to join duty w,e,f, 24.11.2010 to 08.12.2010 in pursuance of the judgment of this Tribunal. In the meanwhile, on 09.08.201 1, the judicial magistrate, Khairpur acquitted the appellant in criminal case registered in FIR # 21/2008 at Padidan. The appellant sent his representation against the impugned order for decision under FR-54 on 15.08.201 1 to the Respondent # 1 which was rejected vide office order dated-16.01.2012; hence this appeal.
3. The respondents in parawise. Comments submitted that the appellant was involved in case FIR # 21/2008 dated 05.11.2008 under Section-379, PPC and 14 EHO of RPS Padidan on the complaint of Ms.Sanober Ali regarding theft of her suit-case containing valuable articles which were stolen by the appellant while he was on train escort duty from Sukkur to Tando Adam Section in train 146-Down Sukkur Express. They have admitted that the appellant submitted reply to show-cause notice on 14.01.2009 which was disagreed by the competent authority being non- convincing/implausible. It was also admitted that the appellant was heard in orderly room on 27.04.2009 by the competent authority but his version was found un-satisfactory due to which he was awarded the punishment of dismissal from service passed by the Respondent # 2 vide order No, 730-E/555-PRP dated 28.04.2009. It was submitted that after denovo departmental inquiry proceedings; matter of appellant for deciding absence period from 27.04.2009 to 07.12.2010 (590) days was considered by the Respondent No, 2 (the then SRP/Sukkur) who, disagreeing with the finding of inquiry officer issued show-cause notice to the appellant on 07.06.201 1 upon which the appellant tendered his defense reply . On receipt of his reply the appellant was heard in Orderly Room on 04.07.201 1 but his written as well as oral explanations were found unsatisfactory and his out of service period from 27.04.2009 to 07.12.2010 i,e, 590 days was decided as leave without pay vide order No, 730-E/555-PRP/7121-26 dated 19.07.201 1. They have also admitte d that on 09.08.201 1 judgment was passed by the Court of Family Judge & Judicial Magistrate, Khairpur in case FIR No, 21/2008 dated.
05.11.2008 under Section 379, PPC & 14 HO of RPS/Padidan registered against the appellant. As per said judgment, the appellant was given benefit of doubt and acquitted honorably and that the appellant sent his representation to the Respondent # 1 for deciding of his absence period under FR-54 but the same was rejected vide PRP/CPO/Lahore': Letter No, A-5/1428-PRP dated 16.01.2012.
4. The learned counsel for appellant had submitted written arguments and pleaded as well; his arguments centered round the Fundamental Rule-54 (FR-54) which stipulates that if acquittal is honorable, the appellant is to be reinstated and given, all back benefits. Reliance was placed on FR-54, 1999, SCMR 1873, 2001 SCMR 269, 2011 TD (Service) 281, 2012' TD (service) 181 and 2015 SCMR 77 .
5. Fundamental Rule-54 (FR-54) reproduced hereunder as:- "Where a Government Servant has been dismissed or removed is reinstated, 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 or 'removed and by an order to be separately recorded, any allowance of which he was in receipt prior to his dismissal removal; or
(b) if otherwise, such portion of such pay and allowances as the revising or appella te 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 appellate authority so directs."
' As it transpires from the paradise comments submitted by the respondents that an inquiry officer, Divisional Superintendent Railways Police (A) was appointed as inquiry officer to conduct denovo proceedings who exonerated the appellant but the authori ty did not agree with the findings and issued show-cause notice on the same charges. On receipt of reply , the appellant was heard in orderly room and his written as well as oral explanation were found unsatisfactory and his out of service period w,e,f, 27.04.2 009 to 07.02.2010 was decided as leave without pay. The inquiry conducted in such a fashion is suggestive of that no formal or regular inquiry seemingly had been conducted, no witnesses were examined and fair opportunity was allowed to the appellant to defend himself. Moreover , no report of inquiry in whatsoever mode conducted is available on record to substantiate the standpoint.
6. The crux is that the acquittal from criminal Court is honourable as held in a case reported 2001 SCMR 269 where it was held that, ' "...Acquittal--All acquittals are "honourable" and there can be no acquit tal which can be termed as "dishonourable". coupled with the inquiry officer exonerated the appellant though the report is not available on record but it transpires from the respondent's statement. The period w.e.f, 24.07.2009 to 07.12.2009 cannot be treated as leave without pay in terms of FR-54. The appeal is, therefore, allowed. The impugned order is set aside and the period w.e.f, 24.11.2011 to 19.07.2011 alongwith awaiting period shall be treated as spent no duty. No order as to costs.
7. Parties be informed informed accordingly .