' SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN).--The instant appeal is directed against Government Order No, Inquiry/234-50/89, dated 1-2-1989 by which a review petition filed by the appellant before the Prime Minister (Competent Authority) Azad Government of the State of Jammu and Kashmir, Muzaffarabad was rejected. This review petition was directed against Government Order No,S.O-4/Inquiry-5/82, dated 19-2-1986 by which on the report of Inquiry Officer, the appellant was exonerated of the charges of misconduct and inefficiency and the case pending against him was filed as unproved but no decision was taken about the period of this suspension.
2. The relevant facts constituting the background of this appeal are that the appellant was posted as Director Food Department w.e.f 10-11-1976 to 21-21977 while two Inquiry Commissions were set up one after the other by the Government to probe into the allegations against him of mismanagement, shortage of stock of food grain and sugar. On the reports of Inquiry Commission he was placed under suspension and served with a show-cause notice as to why he should not be dismissed out of service for the alleged defalcation in the Government stores. The reply to the show-cause notice submitted by the appellant having been found unsatisfactory, he was awarded the penalty of demotion (one step below) under the Azad Jammu and Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977. Feeling aggrieved by the aforesaid order of demotion, the appellant had brought an appeal before this Tribunal and the same was allowed with all back benefits of the service. In the light of the order of this Tribunal, the appellant was reinstated to his former position but because the second inquiry was also initiated against him, the giving of remaining service benefits was perhaps postponed till the result of the second inquiry. But he was found not guilty in the second inquiry also, so the charges pending against him were filed under the impugned order dated 19-12-1986 without making any decision for his back benefits. The appellant made a review petition before the Prime Minister against the said order for seeking a favourable order in his favour in regard to period of his suspension from 25-4-1978 to 8-11-1978 and the period of leave without pay from 20-6-1979 to 21-10-1981. His review petition was not successful and he was ultimately forced to invoke the jurisdiction of this Tribunal.
3. The prayer of the appellant is that the order of this Tribunal by which he was allowed back benefits of service should have been implemented in toto. But neither the period of his suspension was treated on duty nor instead of leave without pay he was granted leave due to him at the relevant time. He, therefore, seeks indulgence of this Tribunal that the period of his suspension be treated towards duty and instead of leave without pay from 20-6-1979 to 21-10-1981 he may be allowed leave with pay as stood due to him at the relevant time.
4. In the objections taken up by the respondents before this Tribunal, it was submitted that the appellant was not honourably acquitted and the charges brought against him were filed as unproved. He was already reinstated and placed on his former position and no order of punishment imposing any penalty was ever made against him after the finding of this Tribunal. The appellant's terms and conditions of service were not violated in any respect and as such he was not entitled to any relief. The leave without pay was granted to the appellant at his written request and the sanction of that leave in his favour was not recorded out of any malice or bad intention.
5. We have carefully considered the arguments as were addressed at the bar by the learned counsel of each party. We have also examined the record of the Department of Services and General Administration (Inquiry Wing). There is no denying the fact that this Tribunal by its order dated 12-12-1983 had allowed all back benefits to the appellant to which he would have been found entitled to get on his reinstatement. But it is doubtful that a civil servant on being exonerated of the charges can also claim period of his suspension to be treated as duty by way of back benefit. The word 'back benefits' is nowhere -defined in service Laws and according to its dictionary meaning it does not show that it includes the period of A suspension also to be treated as duty.
However, in view of the fact that no charge is proved against the appellant, we feel ourselves inclined to allow his period of suspension to be treated as duty. But we find no reason to accept this averment that the appellant must also get his leave without pay from 20-6-19.79 to 21-101981 converted as leave with pay due to him at the relevant time. The period of his leave without pay starts running long after his reinstatement on his former position and resumption of his duties.
Therefore, we find little force in this argument that convertion of leave without pay into leave with pay for the aforesaid period was also one of the items of back benefits allowed to the appellant by this Tribunal. In fact the leave without pay was granted to the appellant longafter his reinstatement on his former post and the relief prayed for on that account must not have been incorporated here as a part of the subject- c matter of this appeal. Leave cannot be claimed as a matter of right and it is entirely at the discretion of the competent authority and to allow this privilege to a civil servant depends on exigencies of service. It will be of profit to have a reference to section 17 of Azad Jammu and Kashmir Civil Servants Act, 1976 which is very relevant to be reproduced below for guidance:- "17. Leave.-- A civil servant shall be allowed leave in accordance with the leave rules applicable to him: ' Provided that the grant of leave shall depend on the exigencies of service and shall be at the discretion of the competent authority."
In the instant case, the appellant had left it to be at the option of the sanctioning authority to allow him leave with pay or without pay and presently we do not find any mitigating circumstances to order conversion of leave without pay into leave with pay as was due to him at the relevant time especially when there is no provision in the relevant Leave Rules to do so.
6. It is argued on behalf of the appellant that under Rule 24 of Azad Jammu and Kashmir Leave Rules 1983, the sanctioning authority does not have any choice in sanctioning leave with pay or without pay and he is bound by the rules to allow firstly whatever kind of leave is found due to a civil servant. But we find ourselves reluctant to concur with this view because in the instant case, the appellant had himself asked for leave without pay and there existed no panacea to ward off an unfavourable order which was invited by the appellant himself through a written application{{URDU TEXT}}. There is nothing on the file to suggest that the appellant was prevented by some events beyond his control from making proper application for grant of his earned leave.
The arguments that in a similar case the leave without pay granted to Doctor Anwar Ahmad, Dental Surgeon after having been availed of by him was subsequently allowed by the Government to be converted into leave with pay, has no bearing to the present case. The facts of the case referred to are not before this Tribunal and presently it is difficult for us to draw any inference from the copy of the order that it is always permissible to allow leave without pay to be converted into leave with pay. But if the Government has committed some mistake anywhere, it would not be in sequence of things to allow that mistake to be repeated at this forum also. It is next argued that the recommendation of the Inquiry Commission in this behalf should have the indulgence of this Tribunal to be accepted in its perspective. In our opinion the Inquiry Officer was required to give his finding about the truth of the alleged charges as proved or unproved against the appellant and he held absolutely no jurisdiction to make a recommendation for having leave without pay granted to the appellant converted into leave with pay. Since it was not a point of inquiry referred to him he was not competent to make any recommendation beyond the points of inquiry referred to him for investigation and report. Hence this argument is also held to be devoid of force and repelled. In the circumstances, we find no option but to reject the prayer of the appellant for change of his leave without pay in leave with pay as stood due to him at the relevant time.
7. The result of the above discussion is that the appeal is partly accepted and the period of his suspension from 25-4-1978 to 8-11-1978 shall be treated towards duty with all benefits of service.
The rest of the claim in dismissed.