1. HAMZO KHAN M. KURESHI (CHAIRMAN).-This appeal under section 4 of Sind Service Tribunals Act, 1973 was filed before us on 1-2-1974 for recovery of subsistence allowance to the extent of Rs. 21,273 only from the respondent.
2. The brief facts leading to this appeal are that the appellant, who is the employee of the Government of Sind Health Department was sent by the Government for higher training to U. K. in 1954. He stayed there upto 8-8-1960. On account of his overstay in U. K. the respondent treated the period from 1-5-54 to 9-9-1960 as leave without pay. He filed the Civil suit No. 1563 of 1967 for pay and all allowances before the VIII Civil Judge Ist Class, Karachi which was decreed in his favour. He got all the benefits awarded to him by the decree except "subsistence allowance" to which he claims was legally entitled under rule 605 (b) of Sind Service Rules, Volume T (1950) at the rate of - - 42 (Rs. 559.86) per month. In obedience to the said decree the respondent paid subsistence allowance to the appellant for one month i. e. May, 1957 and thereafter refused to pay him the same for the remaining period from 1-6-1957 to 8-8-1960. The appellant made representa--tion to the respondent on 22nd December 1972 and 24th July, 1973 but it was rejected on 1-1-1974 hence this appeal.
3. The facts of the case are not controverter by the respondent in his written statement. He however, contends that the appellant was entitled to only pay and allowances as permissible under the rules and not to the subsistence allowance for his stay abroad. He admits that the subsistence allowance was paid to the appellant for May, 1957 but it was due to over-sight mistake. There is, however, no affidavit or evidence to that effect. During the course of his arguments the learned Asstt. Advocate-General stated that the claim of the appellant was time-barred because the decree was passed in his favour in 1969 and he filed the appeal on 1-2-1974. This contention of the learned A.A.-G. is fallacious because the appellant has not based his claim on the decree of the Civil Court passed in 1969 but on the order of the respondent dated 1-1-1974. The copy of the order is on record. The appellant was paid the arrears of his pay and other allowances on 16th February 1973 on the strength of the decree of the Court. He was, however, refused subsis--tence allowance because according to the respondent, he was not entitled to it.
4. The appellant has relied on rule 605 (b), Sind Service Rules, Volume I for his claim. He bad filed the Civil Suit for mere declaration that he was entitled to his full salary and other allowances during the entire period of his stay abroad as he was supposed to be on duty. The suit was decreed in big favour. The Court declared that the plaintiff (appellant) was entitled to his full salary and "other allowances" for the period from I-5-1957 to 8-8-1960. In the light of this declaration the appellant received big salary and other allowances viz Karachi Allowance, Cost of Living allowance, Non- practising allowance but not the subsistence allowance, which according to the appellant, was included in the term "other allowances." The contention of the appel--lant has any amount of force.
5. The respondent actually acted on the decree of the Civil Court and paid the "subsistence allowance" to the appellant for May, 1957 and stopped the same thereafter. This refusal gave rise to a fresh grievance to the appellant and he therefore made a representation to big appointing authority, namely the respondent, who rejec--ted his claim on 1-1-1974. This order gave rise to a fresh cause of action and the appellant has approached this Tribunal for his remedy. His appeal is within time and we find no force in the contention of the learned Assistant Advocate-General.
6. In support of his claim the appellant has produced the photo, copy of rule 605 (b) of Sind Service Rules Volume-I (1950). The amendment vide (b) above was made in the rules on 1-10-1954 hence it was applicable to the case of the appellant because he claims subsistence allowance for the period from 1-6-1957 to 8-8-1960. The said sub-rule (b) reads as under: "When on deputation or training to U. S. A., Canada, United Kingdom or other European Country, Australia and New Zealand the following subsister-ce allowance per month from the date of the landing in the country of destination to the date of embarkation for Pakistan."
7. The rate of subsistence allowance for U. K. mentioned in this subsection is -- 42 per month.
8. The case of the appellant is covered by the above said sub-rule and he would be entitled to the subsistence allowance which is included in the term "other allowances" granted by the decree of the civil Court. The respondent acted on this decree and paid the subsistence allowance to the appellant for one month and thereafter stopped it. The contention of the appellant gets support from the advise of the Assistant Comptroller (Annexure 'F' ) to the respondent vide his letter dated 29-12-70. It is stated that the respondent refused to pay the subsistence allowance to the appellant on the advice of the Finance Deptt : vide Annexure 'C' but neither the respondent nor the Finance Department have given reasons for rejecting the claim of the appellant. Mere refusal without any reason particularly whoa decree of the Civil Court was acted upon for one month, does not amount to a proper legal order. It has no legal effect of superseding the legal right of the appellant. Since the period of the appellant's stay for training in United Kingdom was treated as period of duty the appellant was entitled to all the allowances, including the subsistence allowance.
9. We therefore, set aside the order of the respondent Annexure 'C' dated Ist January, 1974, and allow the appeal of the appellant. We direct that the appellant be paid subsistence allowance at the rate of -- 42 (Rs. 559.86) per month from 1-6-1957 to 8-8-1960, amounting to Rs. 21273.14 only. Each party is left to bear his own costs.