1. This is an appeal filed under section 4 of the Sindh Service Tribunals Act 1973 praying therein for setting aside the impugned appellate final, order bearing No,SO(PHE) 2(13)/89, dated 23rd October, 1997 of the respondent No,1 as alleged therein and endorsed to appellant by the respondents Nos.3 and 2, whereby the departmental appeal filed by the appellant on 24th December, 1994 made against the original impugned orders bearing No,SO(PHE)2(13)/89 dated 1st November, 1994, was rejected and the suspension period of the appellant w,e,f, 24th September, 1988 to 22nd November, 1993 was treated as leave due and the remaining period was treated as extraordinary leave without pay. He has further prayed that aforesaid intervening period be treated as spent on duty with back benefits and the respondents be directed to pay all the arrears of the said period to the appellant. The case of the appellant can be briefly summarised as follows:-- ' The appellant initially joined Public Health Engineering Department as an Overseer on 12th September, 1966. The designation was later changed in 1997 to 'Sub-Engineer', starting with Grade 9, he made his way up to BPS-16, w,e,f,, 22nd January, 1986. In the year 1987 a case was registered against him under section 161, P.P.C. To be read with section 5(2) of the Anti-Corruption Act, by the Anti-Corruption Establishment Sukkur and he was subsequently convicted by the Anti-Corruption Court for one year sentence R.I. And fine of Rs,1,000, in default of which to undergo for further R.I. For 3 months vide judgment of the Criminal Court dated 24th September, 1988 whereby the appellant was re-arrested and sent to Jail. It is pertinent to mention here that the appellant during the trial of the said criminal case was very much in Government service and had performed his duties regularly up to the day of conviction by the Trial Court. Thereafter the appellant preferred Criminal Appeal bearing No,87 of 1988 before the Hon. High Court of Sindh Bench at Sukkur wherein his conviction was suspended and he was released on bail vide Sindh High Court's order, dated 2-10- 1988. As such the appellant remained in judicial custody w,e,f, 24th September, 1988 to 2nd October, 1988. On release, he reported for duty on 5-10-1988, but his joining report was not accepted by the X.E.N. As informed by him to the appellant and on further pressing by the appellant on 23-10-1988, he was again informed by the XEN PHED-1 Sukkur on 27-10-1988 that he stood dismissed from his service in the light of Rule 8 Clause (a) of Sindh Civil Servants (E&D) Rules, 1973 amended by the Notification No,SOIX-Reg(S&GAD)2/13/1-73-(Pt-1) dated 14-10-1978 on account of conviction by the Court of Special Judge Anti-Corruption Sukkur. The appellant challenged this letter before the XEN on the point that no specific order was issued by the competent authority. According to him he agitated the matter, without any action on the part of the department and finally filed a Service Appeal bearing No,57 of 1989 for reinstatement before Sindh Service Tribunal. As the service appeal of the appellant was preferred against dismissal on account of conviction by the Anti-corruption Court and not on account of the departmental proceedings, as such the Sindh Service Tribunal at the very out set observed on 30-10-1989 that the appellant should wait for the final decision of the High Court in his criminal appeal. The appeal was withdrawn accordingly, on the same date.
2. The appellant's criminal case was decided by the Sindh High Court on 23-9-1993 whereby the appellant was acquitted from the charge of corruption after setting aside his conviction awarded by the learned Lower Court. He therefore, made departmental representation for his reinstatement in service w,e,f,, the date of his unlawful dismissal and had also prayed for all consequential benefits of intervening period, treating the same as spent on duty. The appellant was reinstated in service vide order, dated 22nd November, 1993. He reported on duty on the same date and made efforts for payment of all pay and arrears of the intervening period i,e, 24-9-1988 to 22-11-1993, the period in which he remained suspended pending criminal appeal. However, the respondent No,2 in his final order, dated 1st November, 1994 decided the suspension period from 20-9-1988 to 22-11- 1993 as leave due to him and the remaining period was treated as extraordinary leave without pay.
3. The appellant kept on agitating against these orders and filed an appeal with Respondent No,1 but there were no further orders on his representations.
4. ' The appellant subsequently filed a Constitutional Petition No,G-722 of 1996 whereby he sought direction to the competent authority for decisions in regard to his departmental appeal. The Hon.
5. High Court after hearing the parties dismissed the appeal in limine. However, Sindh High Court directed the respondent No,1 to dispose of the petitioner's departmental appeal within two months, due to which the respondent No,1 finally decided on 23rd October, 1997 whereby the departmental appeal was considered and rejected without mentioning any reasons. The appellant having received this final appellate order on 5-11-1997 filed his appeal before Service Tribunal on 24th November, 1997.
6. ' The counsel for the appellant has relied on the following judgments:--
(1) 1994 PLC (C.S.) page-693 which explains the terms 'Honourable acquittal' and 'benefit of doubt'.
7. According to it, all acquittals are honourable, even if it is a result of benefit of doubt, which only suggests the fact that the prosecution had failed to exonerate itself of the duty of proving itself beyond all reasonable doubt. Employee having been acquitted of the charge of misconduct, his consequential reinstatement in service, would entitle him to full pay and remuneration of entire period of his suspension and subsequent dismissal. In the said judgment reference has been made to fundamental Rule 54 of Federal Civil Service Rules Manual which by implication means Rule No,152 of the Sindh Civil Service Rules, Manual, according to which the revising or appellate authority may grant a Government servant, who has been dismissed, removed, or suspended and is reinstated, or whose suspension has been held injustifiable or not wholly justifiable, for the period of his absence from duty --
(a) if he is honourably 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.
8. ' 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 directs.
(2) 1991 SCMR pages-209 whereby the appellant was dismissed on the basis of conviction awarded against him, which was subsequently set aside and his appeal was accepted and it was directed that the appellant be re-instated in service with back benefits.
9. ' According to the counsel for the appellant he was not only acquitted honourably but during all this period, he was not dismissed but was only under suspension and thus entitled to all back benefits. He further relied on 1985 SCMR page-1062 and 1997 SCMR page-19 and PLD 1985 (SC) page-134. All of these judgments deal with the cases where the employees have been reinstated after setting aside of the impugned order.
10. ' Assistant Advocate-General in his arguments pleaded that the appellant has not mentioned in the appeal as to how many days he remained in jail. He was of course relieved on bail vide Sindh High Court on 2nd October, 1988 and he reported for duty on 5th October, 1988 but the joining report was not entertained by the concerned XEN. The appellant again made a request on 23rd October, 1988. He was informed by the XEN on 27th October, 1988 that he stood dismissed from service in the light of Rule 8 Clause (a) of Sindh Civil Servants (Efficiency and Disciplinary) Rules, 1973 and as amended in 1978. However, no formal dismissal order by the competent authority was issued. Accordingly the appellant challenged the competence of such letter but he did not file any departmental appeal with a competent authority while continuing his correspondence with the department at XEN and SE's level till the judgment by Hon. Sindh High Court whereby his conviction was set aside on 23rd September, 1993 and when on 4th October, 1993 he made a representation to the Administrative Secretary who called for comments from the Chief Engineer PHED, who in his reply forwarded a copy of the judgment alongwith the application of Mr. Habibur Rehman, Sub- Engineer, requesting for allowing him to join duty with retrospective effect and restoring all benefits.
11. The Chief Engineer, PHED, thus sought the instructions of the Administrative Secretary. On 22nd November, 1993 an order was issued by the Chief Engineer PHED allowing the appellant to join his duty. In the said order the appellant was shown as 'Suspended'. A.A.G. Insisted that this was done inadvertently. According to him, the appellant was convicted by the lower Court, and during this period he did not perform duties, and thus was not entitled to any remuneration as he did not work in that particular period. He was out of the job, not due to any act on the part of the department, but due to the conviction by the Lower Court and that he has been given benefit of doubt by the Hon. Sindh High Court. According to him it was only on 8th January, 1994 that he requested for the first time for the arrears of pay. His request was turned down on 1st November, 1994. He made a representation to the Chief Secretary, Government of Sindh on 24th December, 1994 which was time-barred. He also filed a Constitutional Petition No,722 of 1995 which was dismissed in limine on 8th April, 1997, however, with the direction to the Administrative Secretary to dispose of the petitioner's representation, if any allegedly pending before him, within a period of two months. On 23rd October, 1997 the Chief Engineer PHED was informed that the representation by the appellant had been considered and rejected by the Appellate Authority.
12. ' Mr. Abdul Sattar Mughal advocate for the appellant in his counter arguments further pleaded that the plea of limitation of time was based on surmises, conjecture and not on criteria of limitation.
13. According to him there is no order of dismissal. On the contrary the letter of the XEN dated 27th October, 1988 merely mentions his dismissal. According to him the Competent Authority should have passed a specific dismissal order. This was not done. The letter, dated 22nd November, 1993 by Chief Engineer PHED, clearly treats the intervening period as a period of "suspension" and the letter dated 1st November, 1994 by the Administrative Department also treats the intervening period as a period of suspension. Regarding the point of limitation he further submitted that the departmental appeal before the Chief Secretary may have been time-barred by 24 days but since the appellate authority did not consider/reject his representation on the point of limitation, the question of limitation does not arise. Meanwhile a Constitutional Petition No,722, of 1995 was before the Sindh High Court which was decided on 8th April, 1997 and on 23rd October, 1997 and in pursuance of its directions, the appellate authority i,e, Chief Secretary decided the matter and his order was conveyed by the Administrative Department Chief Engineer PHED which was finally transmitted to the Chief Engineer PHED Circle Mirpurkhas, who in his turn forwarded it to the appellant on 5th November, 1997 and was received by him on the same date. The appeal was filed before the Tribunal on 24th November, 1997 and was thus in time. Hence the question of limitation does not arise as the same point was not raised by the Appellate Authority. This being a valid argument is accepted.
14. Regarding the intervening period, since the administrative department, itself has not issued any specific dismissal order, hence it is treated as a period under which the appellant remained under suspension. In the light of aforesaid judgements, and acquittal, he is therefore, entitled to full salary for the whole intervening period, treating it as a period, spent on duty. However since he did not actually perform the duty in the field, such allowances as are given to a Government servant for performance of actual duty in the field like conveyance allowance etc., will not be admissible to him. Appeal is allowed with no orders as to cost.
15. ' Given under may hand and the seal of this Tribunal this 4th day of November, 1999 at Karachi.