1. ABDUL QADEER CHAUDHRY, J.--This order will dispose of the two appeals as they are directed against the same judgment and common point of law is involved in both the petitions. The respondent, Mohammed Ayub in Civil Appeal No. 229 and respondent Nazir Ahmed in Civil Appeal No.230 were found absent during office hours. They were proceeded under Rule 5(4) of the Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978, (hereinafter referred to as the Rules). The appellant on 13-9-1982, imposed the following penalty against the respondents under Rule 4 1(a)(ii) of the Rules:- (1)That balance of pay for the suspension period was forfeited and the intervening period was ordered to be treated as leave without pay (extraordinary leave).
2. (2)His annual increment was stopped with future effect.
3. The respondents then preferred appeals before the Federal Service Tribunal. The Tribunal, by means of the impugned judgment recorded the following findings: "It is . Not disputed that the appellant did not discharge duties as mentioned in the show cause notice. His contention that he did not have the knowledge of the assignment of the duty as per duty chart is not believable. There is a report of the Line Superintendent dated 26-7-1982 that the appellant and other linemen were detailed for duty on the Eid day and. The appellant and two others had failed to discharge the duty as per assignment. His report was endorsed by the Executive Engineer and it was on these reports that the Superintending Engineer served the show- cause notice on the appellant. There is nothing on the record to indicate that there was any malice behind the report made against the appellant. We find that the charge of dereliction in the discharge of duty was established against the appellant and he was liable to disciplinary action. But we find that the punishment of forfeiture of the pay for the period of suspension falls outside the scope of Rule 4 of the WAPDA (E&D) Rules which enumerates the punishments to be awarded to the employees in certain circumstances and, therefore, that part of the punishment is liable to be set aside. As regards the second part of the punishment, stoppage of one annual increment without future effect was appropriately awarded."
4. According to the Tribunal, the punishment for forfeiture of the pay for the period of suspension falls outside the scope of Rule 4(1). During the suspension period an employee gets subsistence grant and some other allowances. In these cases also, the respondents were getting such allowance during the period of their suspension.
5. Learned counsel for the appellant submitted that the past emoluments could be forfeited as punishment. Fundamental Rule 54 provides that "when a Government servant who has been dismissed, removed or suspended, is reinstated, the revising authority may grant to him for the period of absence from duty (a) if he is honourably acquitted, the full pay to which he had been entitled; if he had not been dismissed, removed or suspended and, by an order different separately recorded an allowance of which he was in receipt prior to his dismissal, removal or suspention; (b) if otherwise such proportion and such pay and allowances as the revising or appellate authority may prescribe." Subrule (b) of FR 54, does not forbid the period under suspension being regarded as leave and it is open to the authority to prescribe as to the proportional of pay and the allowances to be paid, the leave salary which would be permissible if the Government servant was on leave: (Para. 4 of Appendix 3 in Volume lI of the Fundamental Rules and Supplementary Rules).
6. Under FR 53, a subsistence allowance has to be paid to a Government servant under suspension.
7. The import of FR 54(b) is that an authority may withhold part of allowance and pay of a Government servant on his reinstatement.
8. The question for consideration is whether the forfeiture of pay during the suspension period is legal under Rule 4.(1)(a)(iv) of the Rules. According to the learned counsel for the appellant, this can be done under the above rules but in our opinion the construction made by the Tribunal is correct.
9. According to this provision if on account of any negligence or breach of any order, a loss is caused to the WAPDA, then a recovery may be made for such pecuniary loss. It is not the case .Of the appellant that any pecuniary loss has been caused to WAPDA for the breach of order and dereliction of the duty. 'The respondents were properly punished for their negligence. The Tribunal has also held that the punishment of withholding the annual increment is also legal. In the absence of any financial loss, the provision of Rule 4.(1)(a) is not attracted. However, as stated above, such an order can be passed under FR 54 The attention of the Tribunal was not drawn to this provision.
10. Coming to the merits of the case, it is stated that in case of Muhammad Ayub, an amount of Rs.
11. 250.00 (Rupees two hundred fifty & Paisa nil only) and in case of Nazir Ahmed, Rs. 300 (Rupees three hundred & Paisa nil only) were forfeited. It is also an admitted feature that this order has been passed only against these two respondents and there is no other identical case hi which such punishment was awarded. The appellant, for two cases and this meagre amount, has filed appeal at the cost of public exchequer which is not only the wastage of public money but also the public time. The appellant entered into the litigation for such a small amount. The respondents have appeared in person, to contest these appeals. Therefore, in order to do complete justice, we award Rs.400.00 (Rupees four hundred and paisas nil only) in lump sum to Nazir Ahmed, respondent, and Rs.350.00 (Rupees three hundred fifty and paisa nil only) to Muhammad Ayub which includes the cost of two days' appearance by the respondents.
12. The appeals arc disposed of in the above terms.