The record and proceedings of Appeal No. 14/78, Khushal Khan versus Divisional Superintendent, Pakistan Railways, Karachi, under section 17, Payment of Wages Act, 1936, have been called for, in the exercise of the suo motu powers of revision of this Tribunal 'under subsection (3-a) of section 38..1. R. O., in order top examine the legality, propriety and correct--ness of the order passed by the appellate authority, particularly in respect of 2 issues, firstly, whether the appellate authority was competent to condone the delay in the filing of the appeal, and secondly, whether an employee, who had been suspended for being involved in a prosecution unconnected with his official duties, on acquittal, is entitled to full wages for the period of suspension under rule 2044 read with rule 1711 of the Pakistan Railways Establishment Code.
2. The facts which have led to the present proceedings, shortly stated, are that respondent Khushal Khan, while he was on sanctioned leave, was arrested by the Kotli Police on 9th September, 1971 and was released on bail on 10th September, 1971. It appears that he was again arrested on 3rd October, 1971 and released on bail on 3rd November, 1971. According to respondent Khushal Khan, he informed the Railway authorities on 18th November, 1971 that he had been involved in certain criminal cases at Murri. On the basis of this information, the Assistant Personnel Officer, Karachi, vide his letter, dated 20th March. 1972 directed the Station Superintendent, Karachi City, to place respondent Khushal Khan under suspension. Accordingly he was placed under suspension. On acquittal from the criminal charges in the cases at Murri, Khushal Khan resumed duties with the Railways on 8th November, 1973 and claimed wages minus the suspension allowance already drawn by him for the period from 9th September, 1971 to 5th November, 1973, during the whole of which period he had remained under suspension. As the railway authorities rejected his prayer, Khushal Khan filed an application for the recovery of his dues before the Payment of Wages Authority. Karachi, claiming an amount of Rs. 5,594 as wages for the said period with 10 times compensation. His application, however, was dismissed by the said Authority, by its order, dated 15th January, 1978. On appeal by Khushal Khan, the learned Vth Labour Court , by its order, dated 8th March. 1980, remanded. The case back to the Authority for a decision in the light of rules 2043 and 2044 of the Pakistan Railways Establishment Code. On remand, the Payment of Wages Authority, by its order, dated 15th August, 1981, allowed the application of Khushal Khan and granted him an amount of Rs. 2,782 as wages for the suspension period with 4 times compensation, i.e. a total amount of Rs. 13.910. This time the railway administration preferred an appeal against the decision of the Authority. On the basis of its interpretation of rules 1.711, 2043, and 2044 of the Railways Establishment Code, the learned Labour Court, acting a: Appellate Authority under the Payment of Wages Act, came to the conclusion that respondent Khushal Khan was not entitled to the amount claimed by him and hence allowed the appeal of the railways and rejected his claim. On information received, this Tribunal has called for the record and proceeding of the case in the exercise of its sou motu powers of revision.
3. It was contended by Mr. A. T. Mahmood, the learned counsel for the Railway administration,. That the revisional powers of this Tribunal under subsection (3-a) of section 38,
1. R. O., do not extend to appellate orders passed by the Labour, Courts under the Payment of Wages Act, 1936. In support of his contention. The learned counsel relied upon the decisions in the cases reported as Jannat Textile Mills Ltd. v. Sind Labour Appellate Tribunal (PLD 1979 Kar.725) and Pakistan through Chairman. Pakistan Railways Board v. Maqsood Ali and 8.2 others (1981 PLC 307). I have been unable to appreciate how the decision in the forma case supports the contention of Mr. A. T.
Mahmood. In that case, the question which arose for consideration by the Divisional Bench of the Karachi High. Court, of which I was a member, was whether the sweep of subsection (3-a) of section 38,
1. R. O., extended to only original orders pas3ed by the Labour Courts or even to the appellate orders passed by Labour Courts particularly orders passed on appeal against the decisions of the Junior Labour Courts. It was held -as no qualification or limitations have been placed upon or added to the word "order" as used in the above subsection, the sub motu jurisdiction of the Labour Appellate Tribunal extends both to the original as well as to the appellate orders of the Labour Courts. A distinction was also drawn in that case between sub motu exercise of the revisional powers and the exercise of the revisional powers on the application of a party. The issue whether sub motu powers of revision could be exercised in respect of appellate orders passed by the Labour Courts under the Payment of Wages Act, 1936, was neither an issue in that case nor was the issue considered or examined by the Division Bench.
4. The decision by a learned Single Judge of the Lahore High Court in the case of Maqsood Ali, however, seem, to support the contention of Mr. A. T. Mahmood, for it has been held in that case that the Labour Appellate Tribunal cannot revise the decision of the Labour Court, acting as an appellate authority under the Payments of Wages Act, within the ambit of powers granted to it under section 38 (3-a),
1. R. O.
5. Mr. Muhammad Ahmed, the learned counsel for respondent Khushal Khan, however, sought to argue that the sub mote powers of revision of this Tribunal under the I. R. O. Extend not only to orders passed by the Labour Courts under the I. R. O., but also the orders passed by them under any law, including the Payment of Wages Act, 1936. Vie, however, was unable to cite any authority in support of his contention. The matter, however, has been set at rest by a Division Bench decision of the Karachi High Court in the case of National Cement Industries Ltd. v. Sind Labour Appellate Tribunal C. P. No. D-1499/79, decided on 2nd April, 1981. In that decision, the Division Bench, after a careful review of the law on the subject, f has held that the revisional jurisdiction of this Tribunal under subsection (3-a) of section 38, I. R. O., extends to the appellate orders of the Labour Courts passed under the Payment of Wages Act, 1936
6. It was next argued by Mr. A. T. Mahmood that- the learned Labour Court was empowered to condone the delay in the filing of the appeal in the circumstances of the case, notwithstanding the fact that the provisions of section 5 of the Limitation Act have not been made applicable to appeals under the Payment of Wages Act, 1936. The learned counsel sought to place reliance on the decision in the case reported as Hatim Ali v. Zulekhabrbi and others (PLD 1964 Kar.399). It was held in that case that since the period of limitation prescribed for filing an appeal under the West Pakistan Urban Rent Restriction Ordinance was not different from the one prescribed under Article 158 of Schedule I to the Limitation Act. The provisions of section 29 (2), Limitation Act, 1908, would not be applicable to such appeals so as to exclude the provisions of section 5 of the Limitation Act. A more direct authority, however, is the case of Sher Ali v. P, I. D. C.
Collieries (1973 PLC 399).. In that case, a learned Single Judge of the Karachi High Court sitting at Quetta has held that as the period for filing an appeal under the Payment of Wages Act is the same as the period prescribed in Article 152 of the Schedule to the Limitation Act, section 29 of the Limitation Act, 1908, would not be applicable to an appeal under the Payment of Wages Act, 1936.
Relying on the above 2 authorities, 1 am of the opinion that the learned Labour Court was empowered to condone the delay m the circumstances of the case.
7. It only remains to be considered whether under the Rules, respondent Khushal Khan was entitled to full wages for the period of suspension, The relevant Rules in this behalf are rules 1711, 2043 and 2044 of the Railways Establishment Code. The said Rules read as follows :- "1711. Suspension.-(a) A railway servant shall be placed under suspen--sion when he is arrested or committed to prison pending trial by a Court of law and he shall remain under suspension until judgment 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.
Rule 2043 (F. R. 53) : Pay during suspension.- A railway servant under suspension is entitled to the following payments :-
(i) In the case of a warrant officer who is liable to revert to Military duty to the pay and allowance to which he would have been entitled had he been suspended while in military employment.
(ii) In the case of Railway Servants other than those mentioned in clause (a) above, the subsistence grant at such rates as the suspend--ing authority may direct but not exceeding one- fourth of the pay of the suspended railway servant.
Rule 2044 (F. R. 54) Pay after re-instatement.-When the suspension of a railway servant is held to have been unjustifiable or not wholly justifiable ; or when a railway 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 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 suspen--sion ; or
(b) if otherwise, such proportion of such pay and allowance as the revising or appellate authority may prescribe.
8. It is not disputed that respondent Khushal Khan was placed under suspension from 9th September, 1971 upto 5th November, 1973. It is also not disputed that in the criminal cases, in respect of which be was placed under suspension, he was acquitted by the Court at Murri. The claim of respondent Khushal Khan to wages, however, was sought to. Be resisted by 'Mr. A. T.
Mahmood, the learned counsel for the Railway administration, on 2 grounds, firstly, that the above Rules are applicable to cases where a Railway Employee has been suspended for being involved in prosecution connected with his official duties, and that secondly, respondent Khushal Khan was not honourably acquitted and was given benefit of doubt. As regards the first objection raised by Mr. A. T. Mahmood, there is no force therein. There is nothing in the aforesaid Rules to indicate that they are limited to cases where an employee is arrested in a case connected with hill official duties. The very fact that respondent Khushal Khan was placed under suspension by the Railway administration in those cases indicates that even the Railway administration is of the view that rule.
1711 is of general application and would be applicable to all cases in which a , Railway employee is arrested and committed to prison. It is true that respondent Khushal Khan was subsequently released on bail but the competent authority did not exercise its. Discretion to end his suspension.
Rules 2043 and 2044 follow the application of Rule 1711 and their application cannot be doubted in case in which Rule 1711 applies.
9. The second objection of Mr. A. T. Mahmood is covered by a Division Bench decision of the Lahore Bench of the West Pakistan High Court in the case reported as Sardar Ali Bhatti v. Pakistan through General Manager, N. W. R. (PLD (W.P.) LAh.664). In that case a Railway servant who was suspended for being involved in a murder case was discharged under section 209, Cr. P. C. Because the opposite patties had entered into a compromise agreeing to withhold evidence such against the other. The relevant authority in the circumstances decided not to treat the Railway servant as having bee o honorably acquitted. Rejecting the claim of the Railway servant for wages on the grounds, firstly, that he was not honourably acquitted, and secondly, that a discretion vested with the competent authority to grant full pay or not to the employee for the period of his absence from duty, the Division 1 Bench observed as follows :- "The expression `honourably acquitted' is not defined in the rules or anywhere else. We shall, therefore, give the same meaning to it as it conveys in its ordinary and natural sense. Its ordinary meaning is that it has been found that the person concerned had been accused of the offence maliciously and falsely, and that after his acquittal no blemish whatsoever attaches to him. In cases where the benefit of the doubt is given to him or where he is acquitted because the parties have compromised or because the parties on account of some extraneous influence have resiled from their statements, then we think that in spite of the acquittal the person concerned cannot be deemed to have been `honourably acquitted'. This expression is not recognised in the Code of Criminal Procedure. There only the word `acquittal' is used. It is, therefore, obvious that it is not. The func--tion of the Criminal Court to declare that the person concerned has been honourably acquitted or not. Having regard to the scope and meaning of the aforesaid rule, we think that it is for the revising or appellate authority to form its opinion on the material placed before it, whether such a person has been honourably acquitted or not. It is left to the absolute subjective discretion of the authority. If the authority take the decision by using its discretion and judgment that the person concerned has not been honourably acquitted, then in exercise of writ jurisdiction this Court cannot convert itself into a Court of appeal and substitute its opinion for the opinion of the competent authority. But in the circumstances of the present case and in the light of what has been stated above as to the meaning of the expression `honourably acquitted' it is difficult to hold even if we had the power to substitute our opinion, that the decision of the competent authority is wrong.
There is another obstacle in the way of the petitioner which 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 Railway Establishment Code, Volume 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 the Railway Department 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 the absence from duty.
If the intention of the rule making authority was to make it obligatory, 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 mentioned 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 revision 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 pot 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."
10. In view of the above observations and as no contrary authority, has been cited before me, no relief can be granted to respondent Khushal Khan in these proceedings. I accordingly do not find any justification for interference with the impugned decision of the Appellate Authority.