The following facts have given rise to the present Revision Petition under section 115, C. P. C.
2. Petitioner, Mufti Mushtaq Ahmad, was employed as a Ticket Collector by respondent Railway till 9th June 1953, when he was discharged from his service. He was successful in obtaining a declaratory decree in his favour from the Court of Additional District Judge, Lahore, on 15-4-1964 in which it was held that the order of his discharge from service was illegal. As a result of this declaration, he was re-instated on 3-9-1964.
3. The petitioner's efforts to get his wages from 9-6-1953 up to 2-9-1964 from the respondent bore no results and he was compelled to move the "Authority" under the Payment of Wages Act, 1936 (hereinafter called the Act) for the recovery of Rs, 20,680 for the period he was illegally kept off his duties. The application was resisted by the respondent who inter alia admitted that the period of the absence from duty from 9.6-1953 to 2-9-1964 has been treated as service but this was done only for a limited purpose of special contribution to the Provident Fund, without prejudice, pending finalization of de novo disciplinary action. It was further stated that the petitioner had been allowed 5% of his pay plus allowances for the period in dispute, by the competent authorities under Rule 2044 of the Establishment Code, Vol. II (hereinafter called the Code). Certain objections about the jurisdiction of the 'Authority' at Lahore and that the application was barred by time were also raised on behalf of the respondent, but those were given up at the first appellate stage.
4. The above controvertial pleadings gave rise to the following issues :- (1)Whether the application is within time?
(2)Whether the jurisdiction of the Court is barred and it cannot entertain the application?
(3)Whether the applicant is entitled to full wages from 9-6-53 to 2-9-1964 (inclusive) if so to what extent? and (4)Relief.
5. After discussing evidence of the parties the 'Authority' by its order dated 28-3-1965 came to the conclusion that the application was within time and that it had jurisdiction to hear and decide it.
On merits the petitioner was held entitled to full wages from 9-6-53 to 2-9-1964 and since the amount of Rs, 20,680 as claimed in the appeal was not controverted by respondent, the petitioner's claim was allowed in full.
6. The respondent challenged the validity of this order by way of an appeal under section 17 of the Payment of Wages Act before the District Judge, Lahore, and only questioned the finding of the authority Under issue No,
3. The learned District Judge by his order dated 4-1-1966 reversed the finding of the Authority that rule 2044 of the Code was not applicable to the facts of this case. In his opinion the revising authority had exercised its power under rule 2044 and allowed the petitioner only 5% of the wages, therefore, the claim for the grant of full wages was liable to be dismissed.
7. A preliminary objection was raised by Qazi Muhammad Ashraf, Advocate for the respondent, that the order of the lower appellate Court was not amenable to the revisional jurisdiction of this Court as the learned District Judge while hearing an appeal under section 17 of the Act was not subordinate to the High Court but was only acting as persona designata. In support of his contention he cited a large number of authorities of various Indian Courts before and after independence as well as the authority of their Lordships of Supreme Court in Khadim Mohy-ud-Din and others v. Ch. Rehmat Ali Naghra and another a case under the West Pakistan Urban Rent Restriction Ordinance of 159 (hereinafter called the Ordinance). It was argued on the analogy of reasoning in the Supreme Court case that since the Civil Judges while acting as a Rent Controller under the Ordinance have been held as persona designata, therefore, the District Judge while hearing appeals under section 17 of the Act also does not function as a Court. The argument overlooks the difference in the plain language of section 17 of the Payment of Wages Act and that of section 2 (b) of the Ordinance. Under the latter provisions of law the Provincial Government has been given powers to appoint a judicial officer to perform the function of a Rent Controller while under section 17 of the Act no special powers have been given to the Central or the Provincial Government to appoint or nominate an officer to hear appeals against the order of the Authority.
Under section 17 of the Act, an appeal against the direction issued by the Authority lies before the District Courts. The Act has, therefore, itself provided a forum for filing the appeals unlike the Ordinance where the Provincial Government has to make an appointment and it may or may not appoint the Civil Judge as Rent Controller. The word 'District' as defined under section 2 (iv) of Civil, Procedure Code means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a "District Court"), and includes the local limits of the ordinary original Civil Jurisdiction of a High Court. Section 3 of the Civil Procedure Code speaks of the subordination of the Courts which lays down that for the purpose of Civil Procedure Code, the District Court is subordinate to the High Court. Therefore, when the jurisdiction is conferred by a special law on a District Court by designation whether original or appellate, the District Court being subordinate to the High Court, its order will be revisable by the High Court under section 115, C. P. C.
For these reasons when a District Judge hears an appeal under section 17 of the Act he functions in exercise of his ordinary judicial capacity as Presiding Officer of a principal civil Court in a district and does not act as persona designata. I am fortified in this view by a Division Bench Authority of this Court in Abdul Haq v. Saifur Rehman and others in which the same view was taken about the powers of the District Judge while hearing appeals under section 15 (1) of the Ordinance after its amendment by Ordinance XXI of 1965. The language of section 2 (b) of the Ordinance is not pari materia with the1 2 language of section 17 of the Act, therefore the authority cited by Qazi Ashraf will not be applicable.
8. The other decided cases relating to the subordination of a District Court to the High Court while acting as an appellate authority under section 17 of the Act need not be discussed as the learned counsel for the respondent was good enough to cite, on my asking Works Manager, Carriage & Wagon Shop, Moghalpura v. K. G. Hashmat in which it has been held that the authority appointed under section 15 of the Payment of Wages Act is civil Court and is subject to the revisional jurisdiction of the High Court under section 115, C. P. C. After the disintegration of One-Unit the Lahore High Court has been revived with effect from 1st July 1970, and its Full Bench decision whether before or after the Independence will be binding on me while sitting in Single. Respectfully following the above authority, I am of the opinion that the District Judge while bearing appeals under section 17 of the Act is not only a Court but is also subordinate to the Lahore High Court and in cases where as Presiding Officer of the District Court he refuses to exercise jurisdiction on grounds untenable in law, his orders are revisable by the High Court. The Full Bench ruling was followed in Abdul Rashid v. Abdul Rahim which was cited by the respondent in support of the proposition that a revision was competent before the High Court in cases decided under sections 15 and 17 of the Act before Qadeeruddin Ahmad, J. in General Manager, North Western Railway v.
Sher Muhammad .
9. It was further contended on behalf of the respondent that even if it was held that the appellate Authority under section 1,7 is subordinate to the High Court, its order was not liable to be interfered with in revision unless the respondent was able to show that the illegality or irregularity committed by the lower Court was such as it had rendered its proceedings coram non judice. Reliance was placed on Muhammad Saleh v. Messrs United Grain Fodder Agencies . Since this objection goes to the merits of the case, it has to be decided with reference to the order which the learned District Judge has passed on the appeal of the respondent. The objection will, therefore, be decided at its proper place.
10.The case of the respondent before the Authority, vide para. 3 of its written statement, was that petitioner's period of absence from duty has been treated as service for a limited purpose and he has been allowed to draw 5% of his pay and allowances by the competent Authority under rule 2044 of the Code. This contention was repelled by the Authority on the ground that rule 2044 of the Code suggested re-instatement after suspension etc. in two cases : firstly, if a person was honourably acquitted; and secondly, if he was acquitted otherwise. In the opinion of the Authority, therefore, the rule was applicable to the cases of persons tried under criminal law and had no application to the petitioner's case as he was granted a decree by the civil Court. The learned District Judge has differed from the Authority and in his view the word 'otherwise' in clause (b) of Fundamental rule 54 would also include the case of a person who is re-instated persuant to the decree of the civil Court. On this difference of opinion, the learned District Judge returned his finding in favour of the respondent and held that it was within the competence of the Divisional Personnel Officer to allow the petitioner as much of the pay and allowances as he considered necessary in exercise of his powers under rule 2044 (b).
11.It appears to me that both the learned District Judge as well as the Authority have fallen into an error on account of the pleadings of the respondent in para. 3 of the written statement as well as at the time of arguments in which reliance was placed on rule 2044. The evidence which the respondent has led in this respect is somewhat contrary to its position and the documents which have been exhibited on record do not indicate even remotely that the above rule was either invoked or applied by the competent Authority while passing order Exh. P. B. about the pay and allowances etc. of the petitioner. According to notice Exh. P. B. issued by the Divisional Personnel Officer on 12th November 1965, the petitioner was allowed to draw 5% of his pay plus allowances for the period of his absence from duty which was to be treated as service for a limited purpose. Along3 4 5 6 with this document another letter has been produced in evidence on behalf of the respondent which is Exb. P. C. and it will be useful to reproduce this letter at this stage. This letter (No, E-142/0/1- II dated 4-10-1963) was addressed from Headquarters Office to all the Divisional Superintendents, Pakistan Western Railway. It reads as under :- "Consequent on the ruling of the Supreme Court in the case of Kb. Ghulam Sarwar, Foreman. P. W.
Railway that termination of services of Railway Employees in terms of Para. 2 or similar provision in the Service Agreement or its analogous rule 148 (1)-R. T. is void and unlawful and enunciation of the principle by the Supreme Court that requirement of a reasonable opportunity to show cause prior to termination of service in terms of the agreement in the case of a permanent Government servant is essential, the Railway Board have under consideration the following points for decision and guidance of the Railway Administration; namely :--
(i) Whether the ruling given by the Supreme Court in the case of Kb. Ghulam Sarwar should be restricted to his case or it should also be made applicable to all other employees whose services were terminated without show-cause notice, and
(ii) what pay and allowances should be allowed on re-instatement of such employees and how the period of absence should be treated.
(2) After careful consideration, in consultation with the Ministry of Law. Government of Pakistan and the Services and General Administration Department of the Government of West Pakistan, it has been decided that :
(i) Only those employees who produce a decree from a Court of Law to the effect that the termination of their services was null and void, should be permitted to resume duty ;
(ii) employees permitted to return to duty should be allowed 5% of the pay and allowances from the date of the expiry of notice of termination of his service or from the date up to which he has been paid in lieu of notice to the date he is allowed to resume duty or has attained the age of superannuation, whichever is earlier ; and (iii)the period of absence shall be treated as service for the purpose of special contribution to Provident Fund/Gratuity. It will not be treated as duty for any other purpose.
(3) This has the sanction of the Governor.
(4) It has also been decided that the above decision should cover the cases of those employees who are re-instated under a Court of Law's order on account of procedural flaws etc. in their removal or dismissal from service."
12.From the above evidence, it is clear that the Divisional Personnel Officer while passing order Exh. P. B. about the pay and allowances of the petitioner was not exercising his discretion under rule 2044 but was guided and, in fact, had acted on the decision taken in para. 2, sub-paras. (i), (ii) and
(iii) of the letter reproduced above. Rule 2044 was not even present to his mind. In fact, there was no room left for the exercise of discretion by him under the rule as he was bound by the order issued from the Headquarters under the instructions of the Ministry of Law, Government of Pakistan.
In the presence of the original Departmental record, Exh. P. B., which is based on official letter Exh. P.
C., I am unable to agree with the learned counsel for the respondent that the competent. Authority was exercising his discretion under rule 2044.
13.It is, however, rule 2044 which is applicable to the case of the petitioner and I am unable to agree with the finding' of the Authority that rule 2044 applies to the cases of persons tried by criminal Courts only. In Ghulam Mustafa Shah v. Pakistan the Railway Administration had applied rule 2026-R-II of the Code in an identical case and held that no salary was admissible to Ghulam Mustafa Shah whose writ was dismissed by the High Court. On appeal it was conceded before their Lordships of the Supreme Court that in a case where a person is re-instated after the decree of the civil Court, rule 2044 was applicable. It was held by their Lordships that it was under rule 2Q44 that discretion had to be exercised by the revising or appellate Authority to grant to a railway servant7 who has been dismissed, removed, or suspended, such proportion of his pay and allowances as that Authority may prescribe and since Ghulam Mustafa Shah's claim was negatived by the Divisional Superintendent on a rule which was inapplicable and the rule that governed the situation was not at all present to the mind of the authority. The authority was directed by a mandamus to consider his case under the rules.
14. In terms of the above judgment it was open to the respondent to make an order under rule 2044. But it was not applied to the case of the petitioner as the evidence given by the Railway in support of its contention raised in para. 3 of the written statement stands contradicted by Exh. P. C. reproduced above. If it did not do so then the authority under the Act, could order the payment of full wages. In this connection, I can safely rely on Divisional Superintendent, North Western Railway v. Muhamwad Sharif where it has been held: "The Railway Administration, however, did not elect to make any order under this rule after re- instatement of the employee. In these circumstances, the Autnority was justified to hold that the claimant was entitled to the payment of full wages for the relevant period."
15. On account of the omission of the learned District Judge to refer to the evidence of the respondent with regards to the grant of pay and allowances to the petitioner, a material irregularity has occurred in his order which has resulted in miscarriage of justice. Had the learned District Judge noticed Exh. P. C. under which the order for the grant of pay and allowances was dpassed in the petitioner's case, he would E have come to a definite conclusion that rule 2044 was not at all applied by the competent authority and it had acted under the letter issued by the Headquarters Office in consultation with the Ministry of Law. Government of Pakistan, I am sure, he would have invoked the principles of law laid down by their Lordships of the Supreme Court in Muhammad Sharif's case. I am, therefore, unable to agree with the learned District Judge that the respondent was not entitled to anything more than 5 % of his pay and allowances etc. under the Payment of Wages Act.
16.The letter Exh. P. C. issued by the Railway Headquarters cannot override the express provisions of rule 2044 and it is abundantly clear that on the official letter no legal right can be founded.
Moreover, the instructions contained in it bind down the competent authority who act accordingly and leave no room for him to exercise his discretion as required by rules. For this reason also, I am inclined to hold that the letter Exh. P. C. relied upon by the respondent that all railway servants who are to be re-employed in view of the decree of the civil Courts will be given only 5 % of their pay and allowances etc,, is ultra vires of rule 2044, as it intends to treat the Railway Servants on a less favourable terms than those under the rule.
17.On the interpretation of rule 2044, I have already held in Civil Revision No, 18 of 1970 (Divisional Superintendent (Workshops), P. W. R. v. Muhammad Shafi) decided on 6th of April 1970 that the word 'may' used in these rules for the purpose of grant of pay has to be read as 'shall' in the case of persons honourably acquitted and falling under clause (a) and I would like to reproduce my observations hereunder :- "7. The word 'may' used in Fundamental Rule 54 for the pupose of grant of pay etc. for the period of absence from duty has to be construed as 'shall' in the case of the persons honourably acquitted and falling under clause (a). If this interpretation is not given to the word 'may' in clause (a) it will render the entire sub-clause (a) of Fundamental Rule 54 as wholly redundant. If the matter of pay and allowances of the persons honourably acquitted was to be left to the discretion of the revising or appellate authority, then it was not necessary to divide Fundamental Rule 54 into clauses (a) and (b). It would have been sufficient to say that the revising or appellate authority may grant to him for the period of his absence from duty such proportion of pay and allowances as it may prescribe. But the division of Fundamental Rule 54 into clauses (a) and (b) clearly denotes that the8 man who is honourably acquitted will be entitled to the full pay etc. to which he would have been entitled if he was not dismissed, removed or suspended. If the intention of rule-making authority was to leave it to the discretion of revising or appellate authority that it may or may not give the pay and allowances to the person who had been re-instated as a result of honourable acquittal it would not have been necessary to classify the cases under the above-mentioned two categories.
The words that the appellate authority 'may' has, therefore, to be read as 'shall' for the cases of the persons acquitted honourably.
8. I am fortified in this interpretation by the last para-graph of Fundamental Rule 51 also. In this paragraph it is laid down that in a case falling under clause (a) the period of absence from duty will be treated as a period spent on duty. The word 'will' us in this sub-clause does not leave any option or discretion with the appellate or revising authority not to treat such a period otherwise than a period spent on duty. Once a period of absence in case of honourable acquittal is treated as a period spent on duty, the employer is bound under the law to make payment of wages to its employee for the period so spent on duty."
18.The above. judgment was shown to Qazi Muhammad Ashraf in Court and I pointed out to him that 1 had dismissed the above revision of the Railway in limine and since I have to decide this case after full-fledged hearing of both the parties I was prepared to re-consider my views if he was able to urge anything against it, but the learned counsel was not in a position to advance any argument so as to enable me to come to a contrary conclusion.
19.As a result of the above discussion, I set aside the order of the learned District Judge dated 4th January 1966 and since the authority under the Act is also subordinate to the High Court as held in K. G. Hashmat's case, I reverse his finding on the interpretation of rule 2044 and hold that this rule is applicable to the petitioner's case according to the decision of the Supreme Court in Ghulam Mustafa Shah's case. As the rule was never applied by the authority to the petitioner's case, he is entitled to his full pay and allowance in view of the decision of the Supreme Court in Muhammad Sharif's case and the interpretation given to these rules by me as noted above. The claim of the petitioner is, therefore, allowed in full to the extent of Rs, 20,680 and the respondent is called upon to pay the same in Court within one month from the date of the order, if not already paid according to the order of the Authority. PLD 1959 SC (Pak.) 459 PLD 1968 Lah. 478\ AIR 1946 Lah. 316 PLD 1959 Lah. 806 PLD 1966 Kar. 483 PLD 1964 SC 97 PLD 1963 SC 268 PLD 1963 SC 340