1. ' ZAFFAR HUSSAIN MIRZA, J.---Leave to appeal in this case was granted in order to consider the legality of the consequential order passed by the Federal Service Tribunal, Islamabad, after allowing the appeal of the. Appellant, and' ordering his reinstatement in service, whereby the appellant was refused the relief of back benefits.
2. ' At the material time the appellant was in service as an Inspector, Preventive Service, Customs (Grade 13). He was charged-sheeted on 19th February, 1983, on allegations that he had intercepted an Iranian national at the International Departure Lounge and having found foreign and Pakistan currency in his possession, deprived him of Rs,800 and let him go with the rest of the foreign currency. It so happened that the same passenger was intercepted by a Senior Intelligence Officer of the Directorate of Intelligence and Investigation (Customs and Excise) subsequently in the same lounge. The, interrogation of the passenger revealed that the appellant had received illegal gratification from him. After formal inquiry into the allegations by the inquiry officer appointed for the purpose the appellant was compulsorily retired from the service vide order dated 11th October, 1983, passed by the Collector of Customs (Preventive) under the Government Servants (Efficiency and Discipline) Rules, 1973.
3. ' Being aggrieved 6y the aforesaid order, after the requisite departmental representation, the appellant came up before the Federal Service Tribunal in an appeal against the order imposing the penalty of compulsory retirement on him. The learned Tribunal upon examining the evidence led at the inquiry, came to the conclusion that there was no sufficient evidence for holding the appellant guilty of the negligence, inefficiency and misconduct in order to warrant his compulsory retirement from the service. In this view of the matter by the impugned judgment, dated 24th January, 1988, the appeal was allowed and the impugned order dated 11th October, 1983, was set aside. However, as already stated, the learned Tribunal directed that the appellant shall not be entitled to the back benefits.
4. ' In support of the appeal Mr. Ali Amjad learned counsel for the appellant relying on Pakistan through General Manager, P.W.R. v. Mrs. A.V. Issacs PLD 1970 SC 415 contended that having been exonerated of the charge levelled against the appellant and resultantly being reinstated in service, there, was no sufficient reason or power possessed by the Tribunal to withhold the payment of arrears of salary due to the appellant during the period from the date, he was imposed the penalty and the date of his reinstatement under the orders of the Service Tribunal. In the case of Mrs. A.V.
5. Issacs (supra) it was no doubt held that once the dismissal of a Government servant is held to be wrongful and such a declaration is given by a civil Court that he was still in service, then there is no reason why he should not also be given by way of consequential relief the salary for the period as if he was actually rendering service. However, that case was decided before the new service laws and Constitutional changes in regard to civil servants were promulgated upon the coming into force of the 1973 Constitution.
6. ' Our attention was invited by Mr. Niaz Ahmad, learned counsel appearing on behalf of the respondents Nos.2 to 5 to Muhammad Tufail v. Divisional Forest Officer and others 1990 SCMR 1708. In this case in somewhat similar circumstances the appeal of the civil servant was accepted and the order of his dismissal from service was set aside by the Service Tribunal but the benefits of salary etc. For the period intervening between the impugned order and the judgment by the Service Tribunal were denied and it was directed that the said period shall be treated as extraordinary leave. In that case also the Service Tribunal came to the conclusion that the departmental authorities had not been able to prove the allegations against the appellant beyond arty reasonable doubt. Repelling the contention that as the appellant's dismissal order had been set aside, the Tribunal could not have denied him the back benefits, because it was for no fault by his own that the appellant remained away from duty, this Court referred to section 16 of the Punjab Civil Servants Act, 1974 and made the following observations:-- "Apart from the power possessed by the Tribunal, we fmd that in adopting the test of proof beyond reasonable doubt in departmental enquiry and on that test setting aside the dismissal order of the appellant, the Tribunal had shown a leniency, not warranted by law. In that background it could, on the facts of the case, deny him the back benefits. It was within its discretion. There appears material on the record to sustain the exercise of discretion in that manner."
7. ' Section 17 of the Civil Servants Act, 1973, is in pan materia with section 16 of the Punjab Civil Servants Act, 1974 and reads as under:- "Pay:- A civil servant appointed to a post shall be entitled, in accordance with the rules, to the pay sanctioned for such post: ' Provided that, when the appointment is made on a current charge basis or by way of additional charge, his pay shall be fixed in the prescribed manner: ' Provided further that where a civil servant has, under an order which is later set aside, been dismissed or removed from service or reduced in rank, he shall, on the setting aside of such order, be entitled to such arrears of pay as the authority setting aside such order may determine."
8. ' It was half-heartedly urged that the second proviso to section 17 only authorizes the Service Tribunal to determine the quantum of arrears of pay but that power does not include the power to refuse the arrears totally. We are . Unable to see any force in this contention. As held in the case of Muhammad Tufail (supra) the power is discretionary and the discretion to determine the arrears would include the discretion to refuse wholly in appropriate cases to grant arrears of salary. We also feel that as in the cited case in the present case there are reasons for the refusal of the arrears of salary in the circumstances of this case. In exonerating the appellant from the charge levelled against him the learned Service Tribunal observed as under:-- "The charge against the appellant was that he had taken Rs,800 in Pakistan currency from the Iranian national, Hussain Mehar Ali, and let him carry away foreign currency of US. $ 4,100 and Pakistan currency Rs,1,500 and the mischief was detected by Mr. S.N. Haider, Senior Intelligence Officer of the Directorate of Intelligence and Investigation (Customs and Excise). The passenger, Hussain Mehar Ali, could not be examined at the Inquiry proceedings probably for the reasons that he was a foreigner and had left the country. Therefore, the direct evidence, if there could be any, could not be brought Against the appellant. The other witnesses examined by the Inquiry Officer were Messrs Alauddin, M. Gilani, Abidi, Banaras Khan and Investigating Officers. Their evidence before the Inquiry Officer did not clearly implicate the appellant, but the Inquiry Officer placed reliance on statements of some of the witnesses recorded by Mr. Sharif, an officer of another agency. Obviously, there was no sufficient evidence for holding the appellant guilty of negligence, inefficiency and misconduct as to have warranted his compulsory retirement from service."
9. ' After the judgment dated 24th January, 1988, was announced the. Appellant submitted a review application before the Tribunal seeking to obtain the relief of back. Benefit which was dismissed vide order dated 28th March, 1988. The grounds for refusing the relief were as under:-- "The order of his compulsory retirement was set aside mostly on technical grounds and it was in that context that he was not allowed back benefits."
10. From the combined reading of the above-quoted observations of the Service Tribunal from the two orders we are satisfied that the appellant was found not guilty of the charge mainly as a result of the non-availability of the direct evidence of obtaining illegal gratification because foreign passenger Hussain Mehar Ali who could furnish such direct evidence had left the country and was not examined. Thus we find a sufficient justification for refusal of arrears of salary in the exercise of power by Tribunal under section 17.
11. ' In the result this appeal fails and is accordingly dismissed with no order as to costs.