This appeal is directed against the decision of the learned VIth Labour Court, given on 23rd November, 1982, dismissing the grievance petition of the appellant workman in which be had claimed full wages for the period of his suspension.
2. The appellant, who was employed in the Railway establishment as Electrical Helper, was suspended from service on account of a criminal case being filed against him by the Watch & Ward Department of the Railway administration in respect of theft of certain article from a railway wagon. The appellants, who was arrested by the police in that case, was placed under suspension.
As required by rule 1711 of the Railway Establishment Code. He remained under suspension with effect from 6th February, 1979, up to 22nd October, 1979. Ultimately, he was acquitted by the Criminal Court under section 241. Cr. P. C., vide its order, dated 13th November, 1980. The appellant claimed full wages for the period that he was placed under suspension, but his request was not accepted and instead the suspension period was treated as leave due. Not satisfied with this decision of the competent authority in the Railway administration, the appellant, preferred a grievance petition before the learned Labour Court , which has been dismissed by it, as already indicated. Mr. Easahat Hussain Rizvi, the learned counsel for the appellant submitted that inas--much as the appellant was honourably acquitted by the Criminal Court, he was entitled to full wages for the period of suspension. A perusal of the order of the Criminal Court indicates that the appellant was given the benefit of doubt, partly because 2 of the prosecution witnesses who had testified against the appellant were not believed by the Criminal Court and partly because the remaining witnesses failed to appear before the Criminal Court in spite of the fact that the criminal proceedings against the appel--lant lingered on over a period of 20 months. However, even if the appel--lant had been honourably acquitted then also he is not entitled to full wages for the period of his suspension, as admittedly he had not performed any duties during this period. Rule 2044 of the Railways Establishment Code empowers the competent authority to grant full pay for the period of absence from duty of a Railway servant if he is honourably acquitted. However, this Rule merely confers discretionary powers upon the compe--tent authority to grant full pay to the Railway servant who so remains A absent from duty but does not entitle the Railway servant to full 'pay for the period of absence. I am fortified in my view by the decision of the Lahore Bench of the then High Court of West Pakistan in the case reported as Sardar Ali Bhatti v. Pakistan through General Manager N. W. R. (PLD 1961 Lah.664), in which their Lordships observed as under :- "There is another obstacle in the way of the petitioner whit h is equally formidable. According to the rule, it is left to the discretion of the competent authority to grant full pay or not, to the employee concerned for the period of his absence from duty, even though the authority may come to the conclusion that he has been honourably acquitted. The reason for this rule is so patent that it need not detain us for long. During the period of absence the employee does not perform any duty. The authority concerned is bound to suspend such a person because rule 1711 of Pakistan Railways Establishment Code, Vol. I, provides that as soon as a railway servant is arrested or committed to prison, he shall be suspended. The suspension in these circumstances cannot, therefore, be said to be unjustified, and no blame can be attached to the Railway Depart--ment for it. It is for these reasons that the discretion is given to the authority concerned whether to grant full pay to such an employee or not for the period of his absence from duty.
If the intention of the rule-making authority was to make it obliga--tory, it would have been so stated expressly in the rule by using the word `shall' instead of the word `may'. Rule 2043 provides that a railway servant under suspension is entitled to the payment men--tioned in clauses (a) and
(b) of the rule. This clearly shows that it is obligatory on the authority concerned to give pay to the employee concerned as provided in this rule. But in rule 2044, the word `may' has been purposely used leaving it to the discretion of the revising or appellate authority to grant full pay or otherwise as it deems fit. It is not the case of the petitioner that the order had been passed by the authority concerned mala fide or capriciously or arbitrarily. If that had been the case then this Court would have had the jurisdiction to interfere with that order, because in that case the order would not have been passed under the rule, and would have been void and illegal. Having regard to the provision of rule 2044, we are clearly of the opinion that no legal right vests in the petitioner and no corresponding statutory or public duty is involved."
3. I have respectfully followed the above view in the case of Khushal Khan v. Divisional .Superintendent, Pakistan Railways, decided on 14th November, 1982. 1 would reiterate the view expressed by me in the said case.
4. It was next submitted by Mr. Rizvi that inasmuch as the appel--lant was placed under suspension by the Railway administration and was not allowed to perform his duties, he would be entitled to full wages for the period that be was nbt so allowed to perform his duties. A short answer to this contention is that rule 1711 of the Railways Establishment B Code makes it mandatory to place under suspension a railway servant who is arrested or committed to prison pending trial by a Criminal Court. The said Rule reads as follows:- "1711-Suspension.-(a) A railway servant shall be placed under sus--pension when be is arrested or committed to prison pending trial by a Court of law and he shall remain under suspension until judg--ment is delivered by the Court, unless in the event of his release on bail, the authority competent to suspend him decides to allow him to resume duty pending decision of the Court."
5. For the reasons discussed by me above, I find no merit in this appeal and would. Dismiss the same in limine.