' NOOR MUHAMMAD MAGSI (MEMBER).----This is an appeal filed by the appellant Mr. Muhammad Hanif Shah praying for setting aside the impugned order dated 8-9-1993, whereby he was awarded the punishment of "censufe" and further that the appellant be ordered to be paid full pay and other benefits for which he was entitled during the period of suspension.
2. Brief facts of the case are that while posted as a Station Master at Mubarakpur Railway Station, on the. Night falling between 28/29-9-1990 seventy seven bags of cement and fertilizers were stolen and appellant lodged a complaint vide F.I.R. No, 51/90 with the Police. During investigation, the stolen property was recovered from the accused person and appellant was cited as a main witness. Mr. Bashir Ahmed an employee of Pakistan Railway was one of those accused, who nursed a grudge against the appellant due to the complaint lodged by the appellant. Therefore, the said Mr. Bashir Ahmed got the appellant entangled in a false and frivolous case with F.I.A. For getting a sum of Rs,200 as illegal gratification. A criminal case vide F.I.R. No, 1/91 was registered with Police Station, Bahawalpur. The appellant remained under suspension from 4-21991 to 19-6-1993.
However, the appellant got himself bailed out from the competent Court of law. The F.I.A.
Investigated into the matter at length and ultimately the matter was closed by the Deputy Director, F.I.A. Multan vide Letter No, 129/DD/M, dated 17-1-1993. Consequently the appellant was 'reinstated without prejudice to the disciplinary action against him by the competent Authority vide order dated 19-6-1993, and he resumed duty on 20-6-1993 as Station Master, Mian Shamir. On 23-7-1993 the appellant was served with a charge-sheet dated 17-7-1993 alongwith statement of allegation as under--- "STATEMENT OF ALLEGATION ' That you, while working as Station Master, Mubarak Pur on 4-10-1991 accepted Rs,200 as illegal gratification from Mr. Bashir Ahmad Cabinman/MBK forwarding his exchange note for transfer.
Raiding party consisting upon M.I.C. And Inspector, F.I.A. Raided at the spot and Rs,200 bribed money recovered from you. Thus, you are held responsible for the misconduct and to breach the trust of Railway Administration under E&D Rules.
' Hence this statement of allegation is against you."
3. The appellant submitted his reply explaining his position that F.I.A. Case against him had been maneuvered by the accused Mr. Bashir Ahmed who had suffered Jail in a theft case initiated on complaint by the appellant.
4. The departmental proceedings against the appellant, however, culminated into punishment of censure to him vide order dated 8-9-1993 issued by the Divisional Personnel Officer, Pakistan Railway, Multan. Appellant submitted Departmental Appeal followed by three applications for withdrawing the punishment of censure and releasing of his salary of 869 days i,e, the period of his suspension from duty. But he was not favoured with any response where after he filed a complaint before the Wafaqi Mohtasib but of no avail. The apathetic attitude of the high-ups of the department virtually fed-up the appellant, therefore, he was forced to proceed on retirement.
Consequently the appellant was retired from service voluntarily with effect from 2-6-1994. But his request for grant of salary for suspension period and withdrawing the punishment of censure were not acceded to for which he came to this Tribunal for the relief.
5. We have heard the learned counsel for the appellant as well as Mr. Fida Hussain, Advocate for the respondents. The respondents raised preliminary objections that the appellant is not a civil servant but is a workman. As such it is ousted from the jurisdiction of this Tribunal. And the appeal is also hopelessly time-barred.
6. The appellant was a Station Master in Pakistan Railway. The question whether a Station Master is a civil servant or not came under consideration by this Tribunal in Gulshan Hassan v. General Manager, Pakistan Railways (1994 PCr.LJ 924). The appellant in that case was a Station Master in Pakistan Railway and was compulsory retired from service. The question whether he was civil servant and amenable to jurisdiction of Service Tribunal, it was held that by virtue of Notification No, P1/90-LP/9, dated 9-6-1992, issued by the Ministry of Railways, Station Masters have also been declared as Supervisors and are civil servants. In this view of the matter appellant is a civil servant and amenable to jurisdiction of the Federal Service Tribunal. His appeal is competent. As regards the question of limitation, we are of the view that in matters relating to Pay and Pension being a continuing grievance, limitation is not applicable. Therefore, we find no force in the contention of the respondents and both the objections are repelled.
7. It is admitted fact that appellant remained under suspension from 4-2-1991 to 19-6-1993 and after his release he was re-instated in service by treating his suspension period as S.Q.S. (Suspension Qualifying for Service). It is evident that the appellant remained under continuous suspension beyond three months. As per rule in the ESTACODE at Sl. No, 92, para. 1 under the heading "Continuance of suspension period beyond three months Procedure for Summaries to the President", it is provided as under-- "Rule 5(1) of the Government Servants (Efficiency and Discipline) Rules, 1973 provides that in a case where a Government Servant is accused of subversion, corruption or misconduct, the authorised officer may require him to proceed on leave or, with the approval of the authority, suspend him, provided that any continuation of such leave or suspension shall require approval of the authority after every 3 months."
' There is nothing on record, neither the respondents could prove that for continuation of suspension period beyond 3 months they got approval of the authority, as it is mandatory under the rules to obtain the approval of the authority to the continuation of the period of suspension after 3 months. In the absence of any such order by the competent Authority, the suspension of the appellant beyond 3 months is without lawful authority and cannot sustain in the eye of law. Even otherwise, the appellant cannot be deprived of his salary during the period of suspension when he was re-instated in service by treating his suspension period as suspension qualifying for service. It is held by the Federal Shariat Court in I.A. Sherwani v. Government Pakistan (1991 MLD 2613) "that though a civil servant can be suspended yet he cannot be deprived of his salary during the period of suspension. The question of subsistence grant during the suspension period was further adjudicated upon by the Shariat Appellate Bench of the Supreme Court in Shariat Appeals Nos. 4 and 6 of 199091 (Government of Pakistan v. I.A. Sherwani) reported in PLD 1994 SC 72 and the Honourable Supreme Court declared the provision of F.R. 53 repugnant to the Injunction of Islam, holding that during suspension, Government servant should be allowed full amount of his salary and all other benefits and facilities provided to him under the contract of service. It was by the order of the Supreme Court, the provision of F.R. 53 was amended accordingly. Following above principle of law we hold that the appellant is entitled to the full salary and other benefits for the suspension period with effect from 4-2-1991 to 19-6-1993. Since the appellant was acquitted by the F.I.A. In the case of taking illegal gratification of Rs,200 and was re-instated in service, the subsequent proceedings taken against the appellant on the same charge is not justified, as no one could be vexed twice for one and the same cause in view of PLD 1973 Lah. 188 and 1989 SCMR 1224.
There is nothing adverse against the appellant during his entire service of about 28 years. As such, minor punishment of censure and refusing the salary of the suspension period, particularly when the appellant has since retired from service, is illegal and against the principle of natural justice.
We, therefore, set aside the impugned order of punishment of "censure" dated 8-9-1993.
8. The net result is that the appeal is accepted and the respondents are directed to pay the appellant full ,salary for the suspension period with effect from 4-2-1991 to 19-6-1993 with all consequential benefits. Order accordingly.