' GUL MUHAMMAD KHAN, C.J.---Mr. IA. Sharwani, filed Shariat Petition No,4/I of 1988, challenging the Government Servants (Efficiency and Discipline) Rules, 1973 on the ground that, apart from being in violation of all the recognised principles of natural justice they hare totally repugnant to the fundamental tenets of Islam. In his submissions Mr. Sharwani concentrated on his objections against Rules 5 and 8. However, he could not support his objection with regard to clauses (2), (3) and (4) of Rule 5 and also Rule 8. Consequently, the Court issued notices only in respect of Rule 5(1) of the said Rules as also the Fundamental Rule 53.
2. There are corresponding Rules made by all the Provincial Governments also. Suo motu notices were therefore, issued in respect of them also. Notices were issued to the juris consults and also public notices through Press. We heard in this connection:--
(1) Hafiz SA. Rahman, appearing for Federal Government and Government of Sindh.
(2) Mian Muhammad Ajmal, Additional Advocate-General N.-W.F.P.
(3) Syed Muhammad Jalal-ud-Din Khuld, AA.-G. Punjab.
(4) Mr. Zarin Dad Khatak Additional Secretary, Services and General Administration Department, N.- W.F.P.
' The following Jurisconsults also appeared to assist the Court:--
(1) Dr. Muhammad Aslam Khaki.
(2) Mr. Abdul Malik Irfani.
(3) Dr. Muhammad Tufail.
(4) Prof. Noor Muhammad Ghaffari.
(5) Mr. Riazul Hassan Noori.
2. Before proceeding with the discussion it will be useful to reproduce Rule 5(1) and Fundamental Rule 53:-- "5.--- (1)Inquiry Officer.--- The following procedure shall be observed when a Government servant is proceeded against under these rules:--
(1) In case where a Government servant is accused of subversion, corruption or misconduct, the authorised officer may require him to proceed on leave or, with the approval of the authority, suspend him provided that any continuation of such leave or suspension shall require approval of the authority after every three months.
Fundamental Rule 53.---A Government servant under suspension is entitled to the following payments:--
(a) In the case of Commissioned Officer of the Indian Medical Department or a Warrant Officer who is liable to revert to Military duty, to the pay and allowances to which he would have been entitled had he been suspended while in military employment.
(b) In the case of Government servants other than those mentioned in clause (a) above, the subsistence grant at one-third of the pay of the suspended Government servant: provided that the suspending authority may direct that the Government servant under suspension shall be granted in addition such compensatory allowances as the Governor-General may sanction by general or special order for issue under this proviso."
(Emphasis supplied).
"Payment and amenities admissible to Government servant under suspension.--- ' Serial No,107: ' Inquiries are being received in this Division in respect of payment of pay, allowances and other amenities to the suspended officers during the period of their suspension. The undersigned is directed to state that a Government servant, as well as an officer/employee of Government controlled Corporation/Autonomous Organisation under suspension is entitled to the following payments/facilities:-
(i) Subsistence grants-- Equal to one-half of the suspended Government servant as laid down in the Ministry of Finance O.M. No,12(32)R.3/70, dated 14-2-1970.
(ii) Allowances.--- Compensatory allowances as specified below if admissible before suspension:- -
(a) Senior post allowance.
(b) House rent allowance.
(c) Local compensatory allowance.
(d) Conveyance allowance."
' Bill for the residential telephone has to be paid by the employee and the residential orderly and transport when supplied will be withdrawn.
(See Esta Code, p.352).
3. The questions posed about these rules are:--Is the Government entitled to:--
(i) send a civil servant on compulsory leave?
(ii) Can it suspend a civil servant?
(iii) Can it stop its remuneration and fix only a subsistence allowance?
(iv) Should it fix any time limit for its order and for the decision of the case?
4. None of the Jurisconsults raised objection to the right of the authorised officer sending a person on forced leave if the same is considered necessary in the circumstances of the case and in order to see that the enquiry is conducted purposefully and is not jeopardised. It was argued that a civil servant might in the particular setting of a case tamper with record, interfere with the evidence or win over the witnesses who may be prone to his pressure or influence in that capacity. Further, there being no specific provision about the stoppage of his salary in such a situation no substantial objection can be raised by the employee. It was thought that as the Government would have to pay his salary etc., during the leave period, no prejudice in respect of his terms and conditions may be caused to the employee. So far as the Government is concerned. It may take prompt steps to get his case decided expeditiously. There thus appears nothing repugnant to Qur'an and Sunnah of the Holy Prophet.
5. As regards the order of suspension from service under the rule reproduced above, it necessarily entails stoppage of the salary of a civil servant and paying him only a subsistence allowance. No one supported this effect of the rule and all the Jurisconsults, as also Hafiz SA. Rahman, were of the view that the State or Government has no power or authority of the type, under Qur'an and Sunnah and under a valid contract of service to unilaterally stop the salary of a civil servant, even during the period it is conducting an inquiry against him or taking disciplinary proceedings. The reliance was placed on Surah No, Verse 22. This was a case of Hazrat Mistah Ibn-e-Asasah. He was involved in a case of Qazf and was later duly punished for the offence. Hazrat Abu Bakr had stopped his financial assistance on which this verse was revealed directing that the payment should not have been stopped. It was argued that though Hazrat Mistah had no right under any law or under a contract to receive the salary and as it was just a gratuitious payment its stoppage for an accusation was not favoured by Allah Almighty. It may further be noted that the accusation was in respect of Hazrat Aisha, the beloved wife of the Holy Prophet (P.B.U.H.) and daughter of Hazrat Abu Bakr.
6. Thus stoppage of salary of a civil servant unilaterally, who still enjoys the benefit of a contract, can in no case be condoned. Reliance was also placed on verse 1 of Surah Al-Maida that '0 ye who believe! Fulfil your undertakings', and the Hadith of Holy Prophet (P.B.U.H.) that the wages of a worker be paid before his sweat dries up. It was further stated that as according to Fundamental Rule 55 and also the other rules of same set of rules, the civil servant being proceeded against continues to be a civil servant, the Government cannot refuse his salary in case it does not want to entrust him with any work to do. Reference was also made to pages 153-155 of Esta Code (1983).
7. Mr. Muhammad Aslam Khaki stated that the salary of a civil servant is based on a contract and as long as the contract subsists the employer cannot stop and refuse to pay his salary. He referred to the contract of marriage and stated that there is no authority to stop the subsistence allowance even during 'Iddat' much less during the subsistence of marriage. He referred to verses 231, 233, 234 and 248 of Surah Baqra in this regard. Reference was also made to verse 34 of Surah Al-nisa and 58 of Surah Al-Infal. It is to be noted that husband can under verse 34 of Surah Al-nisa suspend the performance of marital obligations by the wife on allegations of rebellion but cannot suspend the subsistence. On this basis he argued that the Government might refuse to entrust on employee a particular job to be done during the period of inquiry but it cannot stop payment of his salary.
8. Hafiz SA. Rahman also stated that there is no express provision or even a principle or other indication in Qur'an or Sunnah of the Holy Prophet authorising or entitling the Government to stop salary of its employees. According to him the Tradition of the Holy Prophet in respect of the labourer does not apply to the issue in hand. He, however, stated that as long as the contract of service subsists the salary cannot be stopped. He also referred to verse 1 of Surah Al-Maida.
9. Mr. Noor Muhammad Ghaffari stated that Hazrat Ibn-e-Lutbia was suspended by the Holy Prophet. He referred to the case of Ayyaz Bin Ghanam, who was taken into custody by the messengers sent by Hazrat Umar and was brought before him. Abu Musa Ashari, who was Governor of Basra was also sent for in similar circumstances and an inquiry was conducted against him. According to Dr. Ghaffari all these were cases of suspension from service for the purpose of inquiry into the allegations made against them.
10. None of the jurist consults who appeared before us pointed out any specific provision of Qur'an or Sunnah of the Holy Prophet (P.B.U.H.) to say that the suspension was not permissible or prohibited. Rather, they all supported it. They also could not show in case of Ibn-e-Lutbia or Ayyaz Bin Ghanam or Abu Musa Ashari that they continued performing their duties even during the period of their inquiry. Rather, the way they were brought before the Caliph shows that they would not be permitted to exercise their power or perform their functions after the messengers apprehended them. We also find on the analogy of verse 34 of Surah Al-nisa that a person entitled to a salary, can be temporarily deprived of his job or prevented from performing the services to be rendered by him. The English version of the verse is as under:-- "As to those women on whose part ye fear Disloyalty and ill-conduct, Admonish them (first), (next), refuse to share their beds, (And last) beat them lightly; but if they return to obedience, Seek not against them means (of annoyance); For Allah is Most High, Great (above you all)."
(Emphasis supplied).
' It may further be appreciated that the Esta Code Serial No,104, page 350 does not permit a civil servant to leave station. Fundamental Rule 55 allows him no leave. The rules thus deny both the right to work and the right to earn. The Shariah Appellate Bench of the Supreme Court in Pakistan v.
Public-at-Large PLD 1987 SC 304(326) has held these rights as valuable. The enquiry may be delayed unreasonably causing starvation of family. So, if Government wants to deny a servant to work elsewhere it cannot refuse him his salary.
11. The upshot of the entire discussion is that though a civil servant can be suspended from performance of his duties, if it is in the interest of inquiry, yet he cannot be deprived of his salary during the period of suspension. However, he may be deprived of other additional facilities like residential orderly, telephone and transport etc. It may also be noted that both the suspension, and inquiry are done at the instance of the Government. The question of expeditious conclusion of the inquiry proceedings also mainly depends on the Government. In this view of the matter, the Government should take expeditious steps to conclude the inquiry and may end the contract to save the burden but it cannot stop the salary of a Government servant as long as the contract subsists.
12. In view of the above we find no repugnancy in the Civil Servants (Efficiency and Discipline) Rules but we hold that Rule 53 of the Fundamental Rules and all the parallel rules of the Provinces are repugnant to Qur'an and Sunnah of the Holy Prophet. So in pursuance of Article 203(3)(a) of the Constitution the President of Pakistan in the first case and the Governors of the respective Provinces in the other cases shall take steps to get them amended by 10th May, 1991, so as to bring these provisions into conformity with the Injunctions of Islam failing which such provisions shall cease to have effect.