PAKISTAN RAILWAYS Versus AFTAB AHMED

1. The short question falling for determination in this Constitutional Petition is whether the Pakistan Railways are liable to pay to the respondent No. 1 his salary without deducting the amount paid to him as "subsistence grant" during the period of his suspension. The answer to this question must be found in the interpretation of two rules 2043 and 2044 of Pakistan Railway Establishment Code Vol. Il, which are quoted below for ready reference :‑‑

2. "2043. (F.R. 53) Pay during suspension‑‑A railway servant under suspension is entitled to the following payments:‑

(a) In the case of 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 railway servants other than those mentioned in clause (a) above the subsistence grant at such rates as the suspending authority may direct but not exceeding one‑fourth of the pay of the suspended railway servant:‑‑

3. 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.

4. 2044. (F.R. 54) Pay after reinstatement‑‑When the suspension of a railway servant is held to have been unjustified or not wholly justifiable; or when a railway servant who has been dismissed, removed or suspended is reinstated; the revising or appellate authority may grant to him 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.

5. In a case falling under clause (a), the period of absence from duty will be treated as a period spent on duty. 1n 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."

6. Respondent No. 1 is an employee of the petitioner working as driver F.H.G. Railway Diesel Shed, Karachi Cantt. As a consequence of his involvement in some criminal cases he was suspended from service on 26‑6‑1978 and remained under suspension till 27‑7‑1978. He was honourably acquitted in the criminal case and was reinstated by the petitioner with full benefits and restored to his post.

7. Under provision of rule 2044 his full salary for the period of his suspension was calculated and after deducting the amount, which was paid to the respondent as "subsistence grant" during the time he was under suspension and off duty, the balance of his salary was paid to him in full. The respondent's request that the full salary should be paid to him without making deductions of the amounts he had received as subsistence grant was rejected. The respondent felt aggrieved and approached the Authority under the Payment of Wages Act, Sukkur for the redress of his grievance claiming the amount of Rs. 992. The Authority by its order dated 9‑4‑1983 allowed the claim of the respondent and directed the petitioner to pay full salary without the deduction made. Rs. 50 was allowed to respondent as costs.

8. The petitioner appealed against this order to the Sind Labour court, Sukkur. The appeal was heard and dismissed by the Presiding Officer Sind Labour Court No. VII Sukkur, by its order dated 21‑6‑1983. The petitioner has filed this Constitutional Petition praying that the orders dated 9‑4‑1983 and 21‑6‑1983 passed by the "Authority" and the Sind Labour Court No. VII respectively be declared to be illegal and without jurisdiction.

9. The view taken in the two judgments finds support from a judgment another case reported in 1980 P L C 908 where precisely the same point was involved and Mr. M. Jamil Asghar Chairman, Labour Appellate Tribunal Punjab expressed the view as follows:‑

10. "As already mentioned above, the petitioner in this case was honourably, acquitted and his case fell under clause (a) and, therefore, he w, entitled to full pay for the period of his suspension from 30‑1‑76 to 24‑10‑77 in spite of the fact that he had received subsistence grant during that period. Since he has already been granted Rs. 4, 718.05 by the, Authority under the Payment of Wages Act: he is now entitled to another sum of Rs. 4,632.55".

11. The counsel for the petitioner contends that the respondent is serving the petitioner under a contract of service and is entitled to receive wages in lieu of service.

12. The term "wages" has been defined in section 2(vi) of the Payment of Wages Act and may be reproduced below:

13. "Wages means all remunerations, capable of being expressed in terms of money, which would, if the terms of the contract of employments express" or implied, were fulfilled, be payable, whether conditionally upon the regular attendance, good work or conduct or other behaviour of the person employed, or otherwise, to a person employed in respect of his employment or of work done in such employment, and includes an) bonus or other additional remuneration of the nature aforesaid which would be so payable and any sum payable to such person by reason of the termination of his employment, but does not include:‑‑

(a) the value of any house‑accommodation, supply of light, water, medical attendance or other amenity, or of any service excluded by general or special order of the (Provincial Government);

(b) any contribution paid by the employer to any pension fund or provident, fund;

(c) any travelling allowance or the value of any travelling concession;

(d) any sum paid to the person employed to defray special expenses entitled on him by the nature of his employment; or

(e) any gratuity payable on discharge."

14. The learned counsel argued that in case of suspended employee the quantum of wages remains the same. Payment is split up. Portion of wages to the extent of half is paid to the employee during the period of his suspension as "subsistence grant while the remaining half or balance remaining unpaid would be payable rf and only if the suspension ends as a result of an honourable acquittal from the charge he was facing in a criminal inquiry. Honourable acquittal means that the accusations against him had no merit and or were brought out without justification. In other words no such disability or infirmity ever existed in the eye of law and as such he should not be subject to suffer any prejudice for an ill‑advised or misconceived action.

15. Once he is absolved of these misconceived accusations by his honourable acquittal he is treated in a manner as if this disability had never occurred and as if he had remained on active service during the period of suspension entitling him to restoration of all the emoluments or benefits which he would have earned or enjoyed if this unfortunate mishap had not occurred.

16. The counsel contends that on no rationale and on no process of reasoning he should be awarded any sums in addition to his salary or other contracted benefits. To hold otherwise would mean to encourage payees to invite their suspensions in order to gain advantage at the expense of employer. So, the learned counsel puts it.

17. The respondent has appeared in person and has pleaded his case personally. He invited our attention to rule 2043 under which he has received the "subsistence grant" and rule 2044 under which he claims his full salary now after his honourable acquittal. He submits that the rule requires full payment of his salary of his reinstatement and the words "The appellate authority may grant to him for the period of his absence from duty the full pay to which he would have been entitled if he had not been dismissed, removed or suspended" do not admit of any deduction from the amount of the full salary.

18. I have given anxious consideration to the two contentions advanced before us and have examined carefully the view expressed in the two judgments in favour of the respondent in this case as well as the judgment of the Labour Tribunal Punjab referred to above. While according full respects to the view taken in these decisions I find it difficult to concur with the interpretation placed on these two rules. If the two rules are carefully read it would be clear that they do not seek to carve out a new contract of employment between the parties nor the payment of the subsistence grant is intended to be a penal consequence for initiating a misconceived action against the employee or rewarding the employee for suffering inconvenience on account of that abortive action.

19. The rules merely seek to maintain an even balance within the framework of the contract. No fresh entitlement is created by rule 2044. Under this rule the authority simply "grants" the relief of full pay to the employee for period of his suspension without specifying when and how this relief should be implemented. The words "appellate authority may grant to him for the period of his absence from duty, if he is honourable acquitted, the full pay to which he would have been entitled if he had not been dismissed, removed or suspended" do not talk of any payment or reimbursement. Nor indeed there is any direction of payment in the decision taken. The relief is of a declaratory nature. Payment of full salary must be ensured. Whether this amount is paid partly before and partly after tile order is immaterial. A close study of the two rules would show that the payment received by the employee during the period of his suspension is nothing but a part of his salary. In rule 2003 (27) the term "subsistence grant" has been defend. The definition runs as follows:

20. "Subsistence grant" means monthly grant made to a railway servant who is not in receipt of pay or leave salary.

21. Now let us proceed to analyse the two rules. The first and opening part of rule 2043 is "PAY DURING SUSPENSION." This clearly shows that what is being paid to the employee during his suspension as "subsistence grant" is nothing but a part of his PAY. The whole thing would become very clear if the opening few words of rules 2043 and 2044 arc put in sharp focus. Both rules start thus:‑ Rules 2043 starts with the words "PAY DURING SUSPENSION" Rule 2044 starts with the words "PAYAFTER REINSTATEMENT". Under both the rules it is the "PAY" which is being handed over to the employee. The time and stage of this payment is different. A portion is paid as subsistence grant during suspension and so far as the balance is concerned it is being with held. If the employee gets honourable acquittal "The revising or appellate authority may grant to him for the period of his absence from duty the full pay to which he would have been entitled if he had not been dismissed, removed or suspended

22. OR

23. "(b) If otherwise, such proportion of such pay and allowances as the revising or appellate authority may prescribe."

24. All the manoeuvrability starling from the date of suspension and ending in his acquittal would be within the limits of his salary. If the suspension ends in "honourable acquittal" he may be granted a relief of entitlement to the extent of full amount of his salary "if otherwise such proportion of such PAY and allowances as the revising or appellate authority may prescribe"

25. On the above analysis there seems to be no ambiguity and there is thus no justification to compel the petitioner to pay to the respondent full salary now although he has already received half of it during the period of his suspension. To hold otherwise would mean decreeing the same claim twice and compelling the petitioner to make a double payment of the same claim to tile extent of half of the salary which they have already admittedly paid, Some cases were cited at the bar but none is applicable to the case before us.

26. In Divisional Superintendent P W R Karachi v. Abdul Haq reported in P L D 1974 S C 1 the point involved was whether Rent Rules framed by P W R in exercise of powers under section 157 Pakistan Railway Establishment Code for charging house rents in excess to the prescribed scale were repugnant to sections 7 and 11 of the Payment of Wages Act. It was held as follows:‑‑

27. "After carefully considering the argument advanced on behalf of the appellant, we have come to the conclusion that the railway authority are not entitled to deduct more amount than what has been provided, of clause (d) of subsection (2) of section 7 and section 11 of tile Payment" Wages Act. They are not entitled to rely on clause (h) for the purposes of enhanced charges. Their claim to do so is against the provisions of Payment of Wages Act. In view of this the Rules framed by the Railway authorities under para 157 of the Pakistan Railway Establishment Code arc repugnant to the provisions of Payment of Wages Act, and the view of the subordinate Courts on this point appears to be correct. We, therefore, see no ground to interfere in the matter. The appeals are dismissed. The parties are left to bear their own costs."

28. The point involved before us is totally different. No deductions are being made out of the total wages earned and duly paid by the petitioner.

29. Another case is Divisional Superintendent N.W.R., Lahore v. Muhammad Sharif reported in P L D 1963 S C 340. The question involved in this appeal before the Supreme Court was whether an employee who had been dismissed from service but whose dismissal was held to be illegal by decree of a Civil Court and was consequently restored to his post again, was entitled to the salary for the period he remained off duty. The contention of the Railways was that the employee, remaining away from work had not "earned any wages." The contention was repelled. The Court made following observations at page 344:‑‑

30. "There may, however, be cases, where the employee without rendering service may be entitled to his remuneration. For example where the employee would be ready and willing to render service and yet may not do so because the employer, for some reason does not give him opportunity to render that service. In such a case the mere fact that the employee is not given work or cannot render service to employer will not derogate from the right to receive wages from the employer."

31. Again, no such deductions are made in the present case and the principle laid down by the Hon'ble Supreme Court is in no way violated.

32. Another case cited in P L D 1971 Lahore 355. In this case the word "May" used in rule 2004(F.R. 54) was interpreted to mean, "Shall". No such interpretation is involved as the petitioner, have allowed the respondent full salary for the period of suspension.

33. The next case is Sardar Ali Bhutto v. Pakistan through General Manager, N.W.R Lahore reported in P L D 1961 Lah. 664. Rule 2004 (F.R. 54) fell for interpretation in this case before a D.B. of Lahore High Court. It was held that the word "may" used in this rule was not to be read as "shall". The Court declined to interfere with the findings of the competent authority on the question whether the acquittal should be treated as acquittal simpliciter or "honourable acquittal". The petitioner had prayed for a declaration to be issued to the competent authority to declare that the petitioner was "honourably acquitted", by the Magistrate before whom he had secured a discharge for lack of evidence against him.

34. This case is not relevant for the decision of the point involved before us in this petition.

35. Another case placed for our consideration is Divisional Superintendent, Pakistan Railways v. Wazir Ahmed decided by Mr. Z.A. Channa sitting as Labour Appellate Tribunal. It is reported in 1981 P L C. 618. Respondent Wazir Ahmed was involved in a murder case and remained in prison for about two years. He was given the benefit of doubt and acquitted by the Sessions Court. His contention that such an acquittal should be treated to be "honourable acquittal" entitling him to the benefits in clause (a) of rule 244 was accepted by the Labour Court and he was allowed full salary for the period of suspension. The Railway appealed against this order of the Labour Court. The appeal was allowed by the Tribunal. The following passage from the judgment of the Tribunal may be profitably reproduced:‑‑

36. "In the instant case a bare perusal of the judgment of the Sessions Court shows that the respondent was not honourably acquitted but was given the benefit of doubt. The respondent, therefore, would not be entitled to full wages for the period of his absence unless otherwise directed by the competent authority. In the instant case, the competent authority had directed that he would be paid only the suspension allowance for the Intervening period. If there had been no such order, the principle enunciated by their lordships of the Supreme Court in the case of Divisional Superintendent, N W R v. Muhammad Sharif (P L D 1963 S C 340), may have been attracted, but since there is a specific order of the competent authority in accordance with the provision of rule 2044 to the effect that the respondent would be allowed only suspension allowance during the intervening period, the appellants, were right in not allowing full wages to him for the intervene period Moreover, an employee can be allowed full wages even for the period for which he has not actually worked when he was ready and willing to work. 1n the instant case since the respondent was in jail, obviously he was not in a position to perform his duties for the appellants:"

37. All the cases cited at the Bar and discussed above do not clinch the point involved in the present petition and as such are not of much assistance.

38. The upshot of the above discussion is that this petition is allowed and the two orders Annex. A and B dated 21‑t)‑198 And 9‑4‑ 1983 arc hereby quashed and set aside. The action taken by the petitioner does not call for interference. The i full salary allowed to respondent by the Authority should be paid, if not already paid after deducting the payments made during suspension period in terms of rule 2003.

39. In the circumstances parties are to bear their own costs.

40. A.E./P‑64/K

41. Petition allowed.