' The respondent No, 1 was a railway servant. He was arrested in a murder case and was suspended by the petitioner on 23-6-1983. The police after investigation submitted the challan in the Court of Additional Sessions Judge-I, Okara, who acquitted the accused vide judgment dated 19-5-1985.
The respondent in this way remained suspended from 23-6-1983 to 2-7-1985. The petitioner treated the suspension period as 'leave due' vide order dated 22-10-1985. The respondent No, 1 challenged this order through a grievance petition before the respondent No,2. Who dismissed the grievance petition vide order dated 2-2-1988. The respondent No, 1 assailed this order through an appeal before the respondent No, 3, who accepted the same vide order dated 9-4-1988. The result was that the employee was allowed pay etc. For the period in dispute. The Railways has now challenged this order through the present Constitutional petition, which was admitted to hearing and notices were issued to the respondents. The respondent No, 1 alone has appeared and contested the petition.
2. The learned counsel for the petitioner in support of the petition argued that the respondent No, I was arrested in a murder case, which has no connection with his service It is added that the petitioner cannot be made to pay any claim for which it is not liable directly or indirectly.
3. On the other hand, the learned counsel for the respondent No, 1 argued that the administrative instructions contained in Pakistan Railways Establishment Code, Volume II, issued by the petitioner itself did not make any such distinction. It is added that the respondent No, 3 has decided the appeal strictly in accordance with law and there is nothing for interference in this Constitutional petition.
4. I have given my anxious considerations to the arguments of the learned counsel for the parties and gone through the relevant provisions of law. It is a common ground between the parties that the respondent was involved in a murder case and was suspended on 23-6-1983, when he was arrested in the said case. He was ultimately acquitted by the trial Court vide judgment dated 19-5- 1985 and thereafter he was taken on duty. The question how the period from 23-6-1983 to 2-7-1985 should be accounted for, remained under consideration of the petitioner. It was ultimately decided vide order dated 22-10-1985 that the same should be treated as 'leave due'. The argument of the learned counsel for the petitioner in support of this order is two-fold; firstly, that the criminal case was not registered at the instance of the Railway as could be a case of corruption etc. And secondly, the petitioner was not in any way instrumental directly or indirectly to the arrest of the respondent No,
1. On the other hand, the learned counsel for the respondent No,1 referred to Administrative Instruction III (hereinafter to be referred as instruction III) of Appendix XXXI of the Pakistan Railway Establishment Code, Volume II. It is worth while to reproduce the same:- ' III-Committals to Prison ' A railway servant committed to prison either for debt or on a criminal charge should be considered as under suspension from the date of his arrest, and should be allowed only the payments laid down in Rule 2043 (F.R.53) until the termination of the proceeding against him, when an adjustment of his pay and allowances should be made according to the circumstances of the case, the full amount being given only in the event of the railway servant being acquitted of blame or (if the imprisonment was for debt), of its being proved that the railway .Servant's liability arose from circumstances beyond his control."
' It would be seen that there is a reference to Rule 2043 and F.R.
53. In order to have a complete picture of the provisions of rules and instructions it is necessary to reproduce the said rule 2043. The same reads as under:-- "2043. (F.R.
53.) Pay during Suspension.---A railway servant under suspension is entitled to the following payments---
(a) In the case of 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 railway servants other than those mentioned in clause (a) above the subsistence grant at such rates as the suspending authority may direct, but not exceeding one-fourth of the pay of the suspended railway 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."
' It is clear from the bare reading of the rule that it deals only with the allowances etc. Admissible during the suspension period. This is not the dispute here. The rule 2044 covers the position after reinstatement, therefore, it is relevant to refer to the same, which reads as under:- "2044 (F.R.54.). Pay after reinstatement.---When the suspension of a railway servant is held to have been unjustified or not wholly justifiable; or ' when a railway servant who has been dismissed, removed or suspended is reinstated; ' the revising or appellate authority may grant to him for the period of his absence from duty---
(a) if he is honourable acquitted, the full pay to which he would have been entitled if he had not been dismissed, removed or suspended and, by an order to be separately recorded, any allowance of which he was in receipt prior to his dismissal, removal or suspension; or
(b) if otherwise such proportion of such pay and allowances as the revising or appellate authority may prescribe.
' In a case falling under clause (a), the period of absence from duty will be treated as a period spent on duty. In a case falling under clause (b) it will not be treated as a period spent on duty unless the revising or appellate authority so direct."
5. Apparently, the rule 2044 and Instruction III seem to be contradictory but in-fact the same cater with the different situations. There is clear and marked difference between the scope of the two.
The rule is a general provision dealing with the reinstatement after dismissal, removal or suspension. While instruction III is a special provision specifically dealing with the situation where a railway servant is committed to prison either for debt or on a criminal charge. He is to be deemed under suspension for the period he spends in prison. He is entitled to same benefits as are permissible under the rule 2043 while the remaining benefits are to be decided in accordance with the later part of the Instruction III and not under rule 2044, which is a general provision. It is also obvious that the Railway is not to initiate disciplinary proceedings against such railway servant. It is only to cover up the period he had spent in prison on account of non-payment of debt or criminal charge. These instructions have been issued by the Governor-General and would have the status of rules. In this behalf, reference can be made to the case of Mrs. Saeeda Bukhari v. Secretary, Ministry of Education, Government of the Punjab, Lahore and another (PLD 1988 Lahore 553).
It is interesting to note that Instruction III only refers to the railway servant being acquitted of blame and honourable acquittal is not its requirement. Although the term 'honourable acquittal' has been used in the Fundamental Rules, Railway Rules and Civil Service Rules (Punjab) yet this term does not figure in the Criminal Procedure Code anywhere, therefore, an acquittal is to be deemed as 'honourable acquittal'. These provisions came up for consideration in the case of Malik Azharul Haq v. Director of Food, Punjab, Lahore and another 1991 SCMR 209 where civil servant was convicted by the Special Judge but this Court set aside the conviction. The civil servant claimed back benefits but the same were disallowed on the ground that he has not been acquitted honourably. The appeal before the Punjab Service Tribunal .,also failed. The Hon'ble Supreme Court held that as no sentence of fine or imprisonment has imposed, therefore, the appellant is entitled to back benefits and relying upon earlier judgment in case of Muhammad Sardar Khan v. Senior Member (Establishment), Board of Revenue, Punjab, Lahore 1985 SCMR 1062 and Rule 7.3 of the CSR (Punjab)
Volume I, Part I, it was held that "The dismissal of the appellant was based on the conviction recorded against him. Since the conviction has been set aside the order of dismissal cannot be maintained and has to be set aside. The appeal is accepted and the respondents are directed to reinstate the appellant in service with back benefits with effect from 22-1-1980". In this behalf, cases decided as Pakistan through General Manager, P.W.R., Lahore v. Mrs. A.V. Issacs PLD 1970 SC 415, Syed Kamaluddin Ahmad v. Federal Service Tribunal and others 1992 SCMR 1348, Qadeer Ahmad v.
Punjab Labour Appellate Tribunal, Lahore and another PLD 1990 SC 787, Ghulam Ghaus v. The Chief Engineer, WAPDA, Faisalabad Region, Faisalabad and another 1989 SCMR 1139, Muhammad Anwar v. S.P. City Division, Lahore and others 1989 SCMR 964 and an unreported judgment in Civil Appeal No, 588 of 1992 titled Muhammad Bashir v. Secretary, Education Department etc. Decided by the Hon'ble Supreme Court on 16-11-1993 were also considered.
6. The trial Court held that it is a case of no evidence against the accused including respondent No, 1, therefore, acquitted them of the charges invoking provisions of 265-K of the Criminal Procedure Code, which reads as under:-- "265-K. Power of court to acquit accused at any stage.--Nothing in this Chapter shall be deemed to prevent a Court from acquitting an accused at any stage of the case, if, after hearing the prosecutor and the accused and for reasons to be recorded, it considers that there is no probability of the accused being convicted of any offence."
It is clear from the above that this provision is invoked when the trial Court is convinced that there is no probability of the accused being convicted of any offence. This is nothing short of honourable acquittal rather on better footing because if one is acquitted at the conclusion of trial it would mean that there was some evidence to continue with the trial. While in the case covered by the above provision the Court finds no evidence, whatsoever, to continue the trial even. The case of the petitioner is this way also clearly covered by clause (a) of the Rule 2044 (F.R.
54.) therefore, absence from duty had to be treated as period spent on duty.
7. It is relevant to record here, before concluding the judgment, that Rules 2043 and 2044 of the Railway Establishment Code are reproduction of Fundamental Rules 53 and 54 as is clear from the above text of these rules. While their corresponding provisions in the Civil Service Rules (Punjab) are Rules 7.2 and 7.3. The Rules 7.2 and 7.3 of the CSR (Punjab) have been amended by notification dated 26-9-1993. The result of these amendments is that a Government servant after suspension remains entitled to the same pay and allowances what he was drawing immediately before the suspension. The result is now that Rule 7.3 only deals with cases of dismissal and removal. This has clarified the confusion for all times. The Federal Government and the Railway may also consider if advised to amend F.Rs,53, 54 and Rule 2043 and 2044 accordingly.
8. The upshot of this discussion is that there is no merit in this Constitutional petition. The same is dismissed with costs.