GOVERNMENT OF N.W.F.P Versus I.A.SHERWANI

JUSTICE MAULANA MUHAMMAD TAQI USMANI (MEMBER): ‑‑These two appeals are directed against the judgment of the Federal Shariat Court dated 8‑11‑1990 whereby Rule 53 of the Fundamental Rules (relating to the Government servants) and all the parallel Rules of the Provinces were held to be repugnant to the Injunctions of Islam, as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet (p.b.u.h.).

2. The impugned judgment was delivered on the petition filed by the respondent in the Federal Shariat Court challenging certain Rules of the Government Servants (Efficiency and Discipline) Rules, 1973 and the Fundamental Rules and Supplementary Rules on the basis of their repugnance to the Injunctions of Islam. The learned Federal Shariat Court after examining the main provisions of the Government Servants (Efficiency and Discipline) Rules, 1973, held that there was nothing repugnant to the Injunctions of Islam therein. However the petition was accepted with regard to rule 53 of the Fundamental Rules. The grievance of the respondent about rule 53 was that according to this Rule if an enquiry is held against a Government servant and he is suspended during the enquiry, he has not been held entitled to his full salary and benefits during the period of his suspension. It will be pertinent to reproduce Rule 53 of Fundamental Rules which reads as follows:‑‑‑

"FR. 53: ‑‑A Government servant under suspension is entitled to the following payments:‑‑‑

(a) In the case, of Commissioned * Officer of the Indian Medical Department or 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 Government servants other than those mentioned in clause (a) above, the subsistence grant at one‑third of the pay of the suspended Government servants; 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."

3. The subsistence grant was thereafter increased from one‑third to on half of the salary as from the 1st of December, 1969 vide Sri. No.F.12(32) R3/70, dated the 14th February, 1970 (ESTACODE, page 531, Edition 1989).

4. According to Sl. No.106 a Government servant under suspension is also entitled to Senior Post Allowance, House Rent Allowance, Local Compensatory Allowance and Conveyance Allowance. But the bill for the residential telephone has to be paid by the employee and the residential orderly and transport where supplied will be withdrawn (See ESTACODE, page 532, Edition 1989).

5. The major objection of the Federal Shariat Court on the above Rule is that a Government servant during his suspension remains in the service and before the conclusion of the inquiry no charge has been proved against him. If the Government does not want him to continue his normal functions during the enquiry he may be suspended, but he cannot be deprived of his salary during his suspension, because the contract, of service remains valid during that period also. The Federal Shariat Court relied upon verse No.1 of Surah Al‑Maidah which reads as under:‑‑‑

O You who believe, fulfil your contracts".

It is held by the Federal Shariat Court that the Government has entered into a contract of. service with the employee and a unilateral withholding of the salary is repugnant to the terms of the contract and to the verse quoted above.

7. Dr. Abdul Maalik Irfani who appeared to assist Hafiz SA. Rahman, the learned counsel for the appellant and was permitted to assist the Court as juris‑consult has submitted that the payment of half of the salary or half of the amount during the suspension period is a part of the contract itself. A Government servant, while entering into the contract of service accepts all the rules of service prescribed by the Government for its employees. It cannot be said, therefore, that the rule in question violates the terms of the contract.

8. We do not agree with the learned juris‑consult. A contract allowing unilateral and arbitrary reduction of salary without any fault having been proved against the employee is itself repugnant to the injunctions of Islam. A valid contract under Shariah must be clear, unambiguous and free from exploitation. An unbridled power in the hands of the employer to convert the salary into a "subsistence grant" amounts to an exploitation, which is termed by the Hold !Prophet (p.b.u.h.) as "Gharar". Hazrat Ali says:

The Holy Prophet (p.b.u.h.) has prohibited the sale under compulsion and the sale based on "Gharar".

(Mishkat Sharif on the authority of Abu Dawood, Vol. II, page 20 with Urdu translation published at Lahore).

The term "Gharar" means any transaction whereby the consideration of the transaction is uncertain or is liable to be uncertain, being dependent on certain contingencies. Although the Hadith referred to above relates directly to the contract of sale, but all the monetary contracts including the contract of employment are governed by the principle laid down by it. Therefore if a contract of employment gives, absolute power to the employer that at a certain stage he can reduce the amount of salary for a certain period to be determines at his own pleasure, it will fall under the "Gharar" prohibited by this saying of the Holy Prophet (p.b. u.h.).

9. Moreover, it is mentioned in the St. 104 that an Officer under suspension is generally prohibited from leaving station (ESTACODE, page 530, Edition 1989) and Fundamental Rule No:55 provides that leave may not be granted to a Government servant under suspension. It is also evident that he cannot join any other service during the period of his suspension. It clearly indicates that he is detained for the service of the Government and is a full‑fledged Government servant during this period. This position is expressly admitted in Sl. No.108 also where it is mentioned that "a Government servant under suspension remains a Government servant" (ESTACODE, page 533). So there was no reason why he should be deprived of his salary and other benefits. The Holy Qur'an says:

Woe to those who give short measure, those who, when they have to receive by measure from men, exact full measure; but when they have to give by measure or weight to men, give less than due." (83: 1‑3)

10. Although the word "Tatfif used in the holy verse literally means giving short measure" or "short weight" yet, in the normal usage it covers all the situations where a person gives too little and asks too much. Maulana Mufti Muhammad Shari, while explaining this verse, writes in his Ma'ariful Qur'an:

In the instant case a Government servant under suspension is not allowed to go on leave, nor is he allowed to leave the station 'of service, nor is he given an opportunity to service anywhere else which means that he has been detained for the Government like any other servant but at the same time he is denied his full salary and other benefits. This unjust treatment itself certainly falls under the "Tatfif prohibited by the Holy Qur'an in the verse quoted above and is, therefore, repugnant to the Injunctions of Islam.

11. The learned Federal Shariat Court has allowed the Government to deprive a suspended Government servant from other facilities provided to him, like residential orderly, telephone etc. but we do not find any reason to differentiate between the salary and the benefits he is entitled to under the contract of service. Once it is accepted that he is a Government servant, he must be allowed all the benefits he deserves under the contract of service like any other Government servant. Therefore we do not agree with the Federal Shariat Court in this respect and we hold that Rule 53 of the Fundamental Rules and the rule mentioned in Sl. No.106 and all the parallel rules of the Provinces are repugnant to the Injunctions of Islam as laid down in the Holy Qur'an and the Sunnah of the Holy Prophet (p.b.u.h.) to the extent that they deprive Government servants of their full salary and other benefits during the period of their suspension. A suspended Government servant should be allowed full amount of his salary and all other benefits and facilities provided to him under the contract of service. Necessary amendment in the rules shall be carried out before 30th of June, 1993, on which date this judgment shall take effect. The rules declared in this judgment as repugnant to the Injunctions of Islam shall cease to have effect on 30th June, 1993. With this modification in the order of the Federal Shariat Court these appeals are hereby dismissed.

M.BA./G‑413/S Order accordingly.