MUHAMMAD KHURSHID KHAN (CHAIRMAN): Chaudhry Nazar Hussain, while posted as Officer Kanungo in the Rehabilitation Department at Pesha--war, was suspended from service, by Mr. Mir Ajam Khan the then Additional Rehabilitation Commissioner, Peshawar, on the 28th of June 1956, on the recommendation made by the Additional Deputy Commissioner, Peshawar, and was charge- sheeted for having made wrong allotment of land to certain individuals. An inquiry was ordered to look into the charges against him and an Inquiry Officer was appointed to hold inquiry into the matter. As a result of the inquiry, Chaudhry Nazar Hussain was dismissed from service by the then Deputy Commissioner, Peshawar, on the 3rd of January 1957.
2. Feeling aggrieved by the order of his dismissal from service, Chaudhry Nazar Hussain filed an appeal before the Commissioner, Peshawar Division, Peshawar. The appeal, however, failed and was rejected on the 17th of March 1958. The official then approached the Government of West Pakistan by means of a Revision Petition. The Government, after consultation with the Law Department, observed that "the power to charge---sheet and to order the inquiry goes with the power to punish and since in the instant case, the Additional Rehabilitation Commissioner did not possess the power to dismiss the Kanungo, he did not at the same the, have the power to charge- sheet or to hold an inquiry against him". The Revision Petition was consequently accepted by the Government, the order of dismissal from service of Chaudhry Nazar Hussain was set aside and he was ordered to be re-instated in service. As regards the arrears of pay and allowances for the period of suspension, the Government called for the comments of the Board of Revenue in order to enable it to decide the question of payment of arrears to the official.
3. In compliance with the orders of the Government of West Pakistan, Deputy Commissioner, Peshawar, on the 27th of July 1961, passed orders for the re-instatement of Chaudhry Nazar Hussain with effect from the date of his taking over as Field Kanungo. It was also observed in the order, that the supplementary order with regard to the treatment of suspension period as on duty or otherwise, will be issued by the Board of Revenue, West Pakistan, Lahore later on. The official took over charge of his duties as Field Kanungo on 4-8-1961.
4. After the re-instatement of Chaudhry Nazar Hussain, the Board of Revenue, West Pakistan, Lahore issued orders for fresh inquiry into the charges against him. This the, the charges could not be proved with the result that the official was exonerated of the charges against him.
5. Some the after the final decision of the inquiry against him, Chaudhry Nazar Hussain approached the authorities concerned for the payment of arrears of pay and allowances to him for the period of suspension. There--upon, the Board of Revenue sought the advice of the Law Department of the Government of West Pakistan on the point if the result of the second inquiry against Chaudhry Nazar Hussain amounted to his honourable acquittal. The Law Department opined that the result of the second inquiry amounted to honourable acquittal of the Kanungo of all the charges levelled against him. Acting on the advice of the Law Department, the Board of Revenue, vide their letter No. 8423/66/49 30-E(V)V dated 13-7-1967 (copy Annex. D), asked the Commissioner, Peshawar Division, Peshawar, to decide the question of payment of arrears of pay and, allowances to the Kanungo for the period of his suspension. The Commissioner, however, asked the Deputy Commissioner, Peshawar, for doing the needful as the latter, according to him, was the competent authority in the matter. The Deputy Commissioner, on the 18th of June, 1971, passed an order (Copy Annex. E) allowing Chaudhry Nazar Hussain to draw full pay and allowances for the period of his suspension as provided by the Fundamental Rule 54(a), observing that the period of suspension would be counted as spent on duty. In consequence of the orders so passed, the bill for the arrears of pay and allowances amounting to Rs. 7,562 was submitted by the Deputy Com--missioner's office to the Comptroller, North-West Frontier Province; Peshawar. The latter did not feel inclined to pass the bill for want of necessary sanction of the Finance Department of the Government of North-West Frontier Province. The matter was consequently referred to the Finance Department, for according the necessary sanction. The Finance Department, however, expressed their inability for according the necessary sanction.
6. On coming to know of the decision taken by the Finance Depart--ment, Chaudhry Nazar Hussain served the Government of North-West Frontier Province, with a notice under section 80 of Code of Civil Procedure. The notice was ignored by the Government as a result of which Chaudhry Nazar Hussain instituted a civil suit in the Court of Senior Civil Judge, Peshawar, on the 9th of February 1973, for the recovery of arrears of pay and allowances, on the ground that the order of the Government in the Finance Department was arbitrary, illegal and against all canons of justice.
7. During the pendency of the Civil Suit in the Court of Senior Civil Judge, Peshawar, the Governor of North-West Frontier Province was pleased to make and promulgate the North-West Frontier Province Service Tribunals Ordinance, 1973 (hereinafter to be called the Ordinance). The Ordinance, as its preamble would show, was intended to provide for the establishment of Administrative Tribunals to be called Service Tribunals, to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of service of Civil Servants and matters connected therewith or ancillary thereto. The Ordinance later on became an Act of the Assembly of the North-West Frontier Province (N.-W. F. P. Act I of 1974). It was published in the Government Gazette (Extraordinary) on 28th March 1974. On the 10th of April 1974, when the Civil Suit came up for hearing before the Senior Civil Judge, Peshawar, an order in respect of the abatement of the suit, in view of the provisions contained in section 8 of the Ordinance, was passed.
8. The suit instituted by Chaudhry Nazar Hussain having abated in the civil Court, he moved this Tribunal on the 27th of May 1974, against the Government of North-West Frontier Province in the Finance Depart--ment and three others, by means of an appeal which is being disposed of by this judgment.
9. The point, and the only point, on the determination of which the facts of this appeal rest is, as to whether the Finance Department was legally justified to refuse the sanction for the payment of arrears of pay and allowances to the appellant for the period of his suspension.
10. It was contended by the learned counsel for the appellant appearing before us that the appellant, in view of the order dated 18-6-1971, passed by the Deputy Commissioner, Peshawar (Copy Annex. E), is entitled to recover the arrears of pay and allowances and that the Finance Department had no locus standi to refuse the necessary sanction which was only of a formal nature. The Additional Government Pleader, appearing on behalf of the respondents on the other band, maintained, although half-heartedy, that under rule 126 of the General Financial Rules of the Central Government Vol. I, all claims of a Government servant more than 3 years old and all other claims for whose delayed submission an adequate explanation is not forthcoming, are 1-able to rejection by the Finance Department and that relying on this rule, the Finance Department was competent to reject the appellant's claim.
11. After having considered the factual aspect of the matter as also after having examined the legal position on the point, we are of thee opinion that the Finance Department was not legally justified in refusing their sanction to the appellant's claim. In this connection, it may be stated at the very outset that there can be no dispute about the fact that the competent authority in this case, to allow the appellant to draw the arrears of pay and allowances, was the Deputy Commissioner, Peshawar, who did allow the appellant to draw the same as is evident from the order dated 18-6- 1971 (Copy Annex. E). The Finance Department was not in a position to challenge the propriety of this order. The appellant having been held entitled to the arrears by the competent authority, could enforce his claim through a Court of Law or other available forum, because the period of hiss suspension was treated as on duty. The principle of "Bounty of State" with reference to emoluments payable to Civil Servants, does no more hold the field in this Country, with the result that the Civil Servants whose terms and conditions of service are violated by the authority concerned can get them enforce through the forum available under the law for the the being in force. In this view of the matter, there cannot be the slightest doubt about the fact that the appellant was legally entitled to recover the arrears, and that his claim can legally be enforced through this Tribunal in spite of the refusal on the part of the Finance Department.
12. The respondent's objection based on the delayed submission of the claim to the Finance Department is also not tenable for to reasons: Firstly, the appellant was not to blame for any delay, if any, because he put forth his demand for arrears before his appointing authority soon after he was held entitled to it vide order dated 18-6-1971 of the Deputy Commissioner, Peshawar, and the mere fact that there might have been some delay on the part of his appointing authority to approach the Finance Department, could not deprive him of his right to claim the arrears which right was guaranteed under the law for the the being in force. Secondly, the claim was also not more than three years old much less was it without an adequate explanation for its late submission. In this context, it is pertinent to note that it was only on 18th of June 1971 that the order with regard to the payment of arrears to the appellant was passed by the competent authority, namely, Deputy Commissioner, Peshawar with the result that the claim could not be put forth earlier. It is an admitted position that the bill for arrears was, in the first instance, submitted by the Deputy Commissioner, to the Controller, but the latter returned the same un-passed with the remarks that the period of suspension being more than twelve months, the case should have been referred to the Finance Department for necessary sanction. Thereupon, the Deputy Commissioner, approached the Finance Department and this was certainly done within a reasonable the. The case was referred to the Finance Department long before the expiry of a period of three years.
Again, there was also adequate explanation offered by the Deputy Com--missioner, for delayed submission of the claim on the part of the Deputy Commissioner. As already indicated the claim could not be submitted before 18th of June 1971. The office of the Deputy Commissioner, in the first instance, submitted the claim to the Comptroller within a reasonable the and after the bill was returned unpassed with the observations by the Comptroller, the Deputy Commissioner, without any loss of the, for--warded the bill to the Finance Department for their sanction. In these circumstances there could be no justification for the view that there was no adequate explanation for delayed submission of the bill to the Finance Department, by the Deputy Commissioner. This being the position, the Finance Department could not legally refuse their sanction to the claim. It would not be out of place to point out here that even otherwise, the sanction 6hould have not been refused. In this connection, it may be pointed out that the Finance Department, in some cases, have the powers to accord sanction even in relaxation of the relevant rules. Such powers ought to be exercised where there is no legal bar and the ends of justice are best served by such exercise of powers. In the instant case, there was no legal bar to accord the necessary sanction. The appellant also could not be blamed for delayed submission, if any, of the arrears bill to the Finance Department and it could consequently recover the amount through a Court of law. In these circumstances, it was a fit case for the Finance Department and discretionary powers by the Finance Department, and such a course, if adopted, would have not only resulted in dispensation of justice to the appellant but would have also saved the Government from undue expense arising out of this unnecessary litigation.
13. From the foregoing discussions, it would he noticed that the appellant was entitled to the amount claimed. Consequently, we accept this appeal, set aside the impugned order and direct the respondents to issue orders of the payment of Rs. 7,562 to the appellant, within a period of these months. The appellant's costs in this appeal shall be borne by the respondents. Pleader's fee- Rs. 100.