' RAJA MOHAMMAD ASHRAF KHAN KAYANI (MEMBER).---The relevant facts for the disposal of present appeal are that the appellant joined as Constable in Reserve Police on 1-6-1981 and was performing his duties as a Guard at Secretariat Complex when on 24-12-1984 he received a message about the death of his paternal-aunt. He dropped an application for casual leave with the Head Constable Incharge of the Guard and left for home. The next day when he came back to know about the result of his leave application, he was informed that under the orders of Superintendent of Police Reserve, an inquiry was initiated against him for his wilful absence. He was removed from service. The appeal and thereafter the revision petition brought by the appellant before the Inspector-General of Police were not successful and ultimately an appeal was brought by him at this forum under section 4 of Service Tribunal Act, 1975 (hereinafter referred to be as the Act) to impugn the aforesaid order of his removal. The appeal was accepted and it was left open to the departmental authorities for de novo proceedings against the appellant under the relevant Rules if so advised. On the basis of fresh proceedings the period of his suspension from 1-1-1985 to 12-12-1987 was ordered to be counted as leave without pay vide order dated 30-8-1988 passed by the Superintendent of Police Reserve (respondent No,3). The appeal against this order dated 30-8- 1988, was partly accepted by the Deputy Inspector-General of Police vide his order dated 14-2-1989 and the period of suspension w,e,f, 1-1-1985 to 30-4-1985 was allowed to be treated as leave with full pay while the rest of the period was left as ordered earlier by the Superintendent of Police Reserve. The appellant made a revision petition to Inspector-General of Police against the said order but without any success.
2. Feeling aggrieved by the aforesaid orders, the appellant brought an appeal to this Tribunal under section 4 of the Act for setting aside the impugned orders and declaring him entitled to get the full benefit of his salary w,e,f, 1-5-1985 to 12-12-1987. The appeal was admitted for regular hearing on 13-11-1989. The respondents filed written objections and prayed for its dismissal.
3. We have heard the parties and have gone through the relevant record. It is not proved on the file that the appellant had left for his home due to the sad demise of his aunt after dropping an application for leave with his Wing Commander nor it is available on the record that the had disassociated himself from the duties with permission of his immediate Officer. The appellant was placed under suspension under Rule 16.17 of the Police Rules, 1934 as are enforced in Azad State of Jammu and Kashmir and under Rule 16.35 of the Rules referred hereinbefore an Officer under suspension may be reinstated when at the conclusion of the inquiry it is found that the charges brought against him are not proved and if found proved they do not make out a case for awarding major penalty. In the present case, the appellant was not exonerated of the charge of his wilful absence from the duty. He was, however, reinstated vide impugned order dated 30-8-1988, but the period of his absence from 1-1-1985 to 12-12-1987 was ordered to be counted as leave without pay.
The appeal against the order dated 30-8-1988 was partly accepted by Deputy Insepctor-General of Police vide impugned order dated 14-2-1989 and leave on full pay for the period of his suspension from 1-1-1985 to 30-4-1985 was allowed and the rest of the period from 1-5-1985 to 12- 12-1987 was left to be treated as leave without pay. It is contended vehemently by the counsel for appellant that the award is against the statutory rules as salary of the appellant could not be stopped as a punishment. In our considered view, the appellant has been dealt with leniently by the departmental authorities and there is hardly any scope of interference in the impugned order.
Instead of awarding him any major or minor punishment, the appellant has been reinstated in service and in view of Rule 8.3(2) of Police Rules, his absence from duty has been treated as leave without pay under special circumstances as are mentioned in the original impugned order dated 30-8-1988. Reinstatement in service does not mean that a civil servant who remained under suspension is automatically held entitled to the back benefits. It is held in PLD 1961 Lahore 664 that "It is at 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 might come to the conclusion that he had been honourably acquitted. This is justified on the ground that during the period of suspension an employee had not performed any duty". It was further held in the same judgment that "Reinstatement may be mere restoration of the officer with no past benefits of full pay for the period of suspension or it may be restoration to the office with benefit of full pay for the period of suspension. If a person is honourably acquitted, he is to be allowed full benefits. If he has not been honourably acquitted, he may not be allowed such benefits." Since the appellant was not acquitted honourably vide order dated 30-8-1988, his contention for his renistatement with full pay for the period 1-5-1985 to 12-12-1987 is, therefore, not tenable.
4. The appeal is not even maintainable under Section 4 (b) (ii) of the Act, wherein it is provided that no appeal shall lie to the Tribunal against an order or decision of a departmental authority determining the quantum of departmental punishment or penalty imposed on a civil servant as a result of a departmental inquiry except where the penalty imposed is dismissal, removal, reduction in rank or compulsory retirement. The appellant has not been awarded any penalty by way of punishment but he was only treated on leave without pay for the period of his suspension from the Service w.e.f 1-5-1985 to 12-12-1987, so he does not have any remedy at this forum.
5. Last but not the least, the appeal is time-barred by nine months and seventeen days. The impugned order passed by the Deputy Inspector-General of Police on 14-2-1989 was final under Rule 16.29(2) of the Police Rules. Under section 4 of the Act, any civil servant aggrieved by any final order, whether original or appellate made by a departmental authority in respect of any of the terms and conditions of his service including disciplinary matter may within thirty days of the communication of such order prefer an appeal to the Tribunal after availing of the departmental remedy by way of an appeal, review or representation. In the instant case the appellant instead of invoking the jurisdiction of this Tribunal within the prescribed period of thirty days, preferred a review petition before the Inspector-General of Police who decided the same against him vide order dated 26-9-1989. It would be clear from the bare reading of section 4 of the Act that the remedies essential to be availed of before this forum are provided by way of an appeal, review or representation. The departmental remedy by way of revision petition is not necessary to be availed of before invoking the jurisdiction of this Tribunal. After the final order passed by the Deputy Inspector-General of Police on 14-2-1989, it was an open choice for the appellant to bring his appeal at this forum within the prescribed period or to avail of the departmental remedy by way of revision petition. The appellant opted for the latter and thus the period spent by him in pursuing the aforesaid departmental remedy could not be condoned. The application for the condonation of delay alongwith the replication after the elapse of opportunity to file the replication for condonation of delay amounts to ignorance of law. The ignorance of law is not per se sufficent rLeason for condoning delay. The maxim "ignoratia legis niminem exusat" (ignorance of law is no excuse) is a well-settled law. No genuine ground has been made out for condonation of delay and the application under section 5 of Limitation Act is rejected. The appeal is, therefore, held to be time-barred.
6. The upshot of the above discussion is that the appeal filed by the 6 appellant is without merit and is also time-barred. The appeal is accordingly dismissed with no order as to the costs.