Mr. Shabih-ur-Raza, has made this appeal under section 4 of the Punjab Service Tribunals Act, 1974, wherein he has impleaded the Superintendent of Police, Crimes, Punjab, Lahore and the D.I.-G., Police, Crime Branch, Punjab, Lahore as respondents.
2. By virtue of this appeal the appellant has prayed that the impugned order dated 20-7-1981 (Annexure `B) insofar as imposed tithe condition that the appellant would be treated as on leave of kind due from 1-3-1910 to 20-7-1981 and also the' final order dated 19-11-1981/14-12-1981 (Annexure `D') be set aside. The- appellant has prayed that he be declared to be treated on duty from 1-3- 1980 to 2J-7-1981, for the purpose of pay--ment of arrears of pay and allowances, etc.
3. Brief facts of the case are that Mr. Shabih-ur-Raza, Sub-Inspector, Police Department, the appellant, in the first instance was retired from service by D. I.-G.. Police, Crime. Brach, Lahore, under section 12 (ii) of the Punjab Civil Servants Act, 1974 with effect from 2-7-1979. On representation of the appellant, the Inspector-General Police, Punjab set aside the order of the D. I.-G. Vide order dated 23-2-1980 as being without jurisdiction. However, the intervening period was directed to be treated as leave of the kind due. Ultimately the appellant challenged this order before this Tribunal in Case No. 391/704 of 1980. By judgment dated 17-5-1981 of this Tribunal, the appellant's appeal was accepted and the aforesaid period was directed to be considered as on duty. The appellant was again retired from service under section 12 (ii) of the Punjab Civil Servants Act, 1974, by the competent authority viz. S. P. Crimes, by his order dated 1-3-1980. However, in the meanwhile the adverse remarks against the appellant were expunged by this Tribunal. As a result of review petition, the appellant was again re-instated in service vide order dated 20-7-1981 by S. P., Crime Branch, Lahore, but the period from 1-3-1980 to 20-7-1981 was treated as leave of the kind due under para. 2 of the same order. The appellant was aggrieved of this condition under para. 2 of the impugned order and made appeal to the D. I.-G., Crime Branch, Lahore, dated 14-9-1981 which was rejected vide D. I.-G., Crime Branch, Lahore, order dated 19-11-1981 endorsed to the appellant by respondent No. 1 on 14-12-1981. Hence this appeal.
4. I have heard the parties. The learned counsel for the appellant has argued that even earlier the appellant was retired under section 12 (ii) of the Punjab Civil Servants Act, t974, and his intervening period when he remained out of service was allowed to be treated as leave of kind due. This Tribunal, after considering his case, had decided that this period be treated on duty, vide its judgment dated 17-5-1981. When the review petition of the appellant was accepted and the appellant was re-instated for the 2nd time, the period during which the appellant remained out of service should have also been treated on duty, keeping in view the earlier judgment, as this judgment was announced in the favour of the appellant in the same situation and also the parties being same. It was further argued by the learned counsel for the appellant that as per proviso to section 16 of the Punjab Civil Servants Act, 1974, the authority was only competent to determine this period as leave of kind due, when the authority had set aside the order of dismissal, removal from service or reduction in rank and not otherwise. In this particular case, the appellant was retired under section 12 (ii) of the Punjab Civil Servants Act, 1574. He was neither dismissed, nor removed from service and was also not reduced in rank. Thus, the appellant's case does not come under the proviso of this section of Civil Servants Act. Furthermore no power has been given under any Act or Rules to the competent authority to withhold the pay of a civil servant or not to treat him on duty when a civil servant is re-instated after retirement under section 12 (ii) of the Punjab Civil Servants Act, 1974. The appellant's counsel concluded that the appellant is entitled to be treated on duty on his re-instatement and the condition imposed under para. 2 of the impugned order on his re- instatement that the period from 1-3-1980 to 20-7-1981 be treated as leave of kind due, is not in accordance with the rules and is unlawful. This period be directed to be treated on duty.
Controverting these arguments the learned counsel for the respon--dents submitted that he would rely on para. 11 of parawise comments submitted on this appeal by the respondents, wherein it has been clearly mentioned that the period was treated as leave of the kind duo, as admis--sible under the rules. Thus, the order passed by the competent authority is lawful and is in order.
5. I have given my anxious thoughts to the arguments of the parties and have also consulted the record from the S&GAD on the issue. A refer--hence be made to U. O. No!' SORI (S&GAD) 4-21/80.
Dated Lahore, the 25th August, 1980 while dealing with the cases of Wali Muhammad, Under Secretary, Muhammad Farooq Qureshi, Under Secretary, Mr. Muhammad Siddiq Malik, S. O. And Mr. Afzal Baig Mirza, whose orders of retirement under section 12 (ii) of the Punjab Civil Servants Act, 1974, were rescinded; the following advice was given by the Under Secretary I, Regulation Wing to the Under Secretary (S-VIII), Government of the Punjab, S&GAD, Lahore :- "Retired civil servants, on rescinding of the orders of retirement, revert to the position occupied by them before retirement viz. 6Duty' and as such the intervening period should be treated as "Duty".
Similarly in case of Dr. Humayun Akhtar, Professor of Operative Dentistery, Muhammad Afzal, Blood Donor Organizer and Abdul Haque Tasser Wajdan, Lecturer, whose orders were rescinded, the same advice was conveyed by the Regulation Wing of the S&GAD by Under Secretary (Reg-1) to Under Secretary (S-VII), Government of the Punjab, S&GAD, vide U. O. No. SORI (S&GAD) 4-25/80, dated 9-11-1980, as follows :- "Service Wing has already advised in Regulation Wing's U. O. No. SORI (S&GAD) 4-21/80, dated 25-8- 1980 addressed to Section Officer (S-VIII), that retired civil servants on rescinding of the orders of retirement revert to the position occupied by them before retirement viz. 'Duty' and as such the intervening period should be treated as Duty."
The case of the appellant is of similar and identical nature wherein he was retired under section 12
(ii) of the Punjab Civil Servants Act, 1974 and re-instated in service by the competent authority on acceptance of the review petition of the appellant. Thus, as per advise of the Regulation Wing on the issue, I hold that the period from 1-3-1980 to 20-7-1981 should have been treated on "Duty" and not as leave of kind due.
6. Keeping the above analysis in view, the appeal of the appellant is accepted, impugned orders are set aside to the extent that the period from 1-3-1980 to 20-7-1981 should not be treated as leave of kind due ; but instead will be treated "on duty".
There will be no order as to costs.