MUHAMMAD SIDDIQUE Versus SUPERINTENDING ENGINEER, 1ST CIRCLE (E) WAPDA, GUJRANWALA
CH. HASAN NAWAZ (MEMBER): ‑‑ The appellant, an erstwhile Line Superintendent Grade‑11 in Civil Lines Sub‑Division (E), WAPDA, Gujranwala was removed from service by order dated 13‑2‑1982 in consequence of proceedings under the Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978.
2. He challenged the validity of the order of his removal from service on 31‑3‑1982 before the Punjab Labour Court in a petition under section 25‑A of the Industrial Relations Ordinance, which was accepted by the Court on 20‑10‑1982 with an order of reinstatement in service. Although he was accordingly reinstated in compliance with the order of the Labour Court, WAPDA challenged the validity of Labour Court's order in a writ petition which was accepted on 21‑4‑1984 on the ground that the Labour Court's order of reinstatement was without jurisdiction. Eventually, he was obliged to have recourse to the Service Tribunal on 25‑4‑1984 with an appeal under section 4 of the Service Tribunals Act, 1973 with the prayer that the order of his removal from service may be set aside. This appeal was, however, dismissed on 10‑11‑1985 in limine on the ground that no departmental appeal under Rule 11 of the Rules had been filed by the appellant before coming to the Tribunal. His plea that petition under section 25‑A of the Ordinance he treated as a departmental appeal was rejected. An appeal to the Supreme Court against the Tribunal judgment dated 10‑11‑1985 was also dismissed on 17‑12‑1986.
3. In the meanwhile, after his appeal had been dismissed in limine on 10‑11‑1985 by the Tribunal, he filed a departmental appeal on 20‑11‑1985 under Rule 11 of the Rules to fulfil the jurisdictional requirement of an appeal and then filed another appeal under section 4 of the Service Tribunals Act before the Tribunal. This was also dismissed by judgment dated 21‑11‑1989 on the ground that his departmental appeal filed on 20‑11‑1985 was hopelessly time‑barred. The result was that the order of his removal from service dated 13‑2‑1982 ultimately held the ground and now the most material fact before us is that he stands removed from service since 13‑2‑1982.
4. Despite this circumstance, however, it appears from the record that he had been performing his duties as Line Superintendent for tie period from 20‑10‑1982 to 10‑11‑1985, first on the strength of Labour Court's order of reinstatement dated 20‑10‑1982 and then on that of the Tribunal's stay order granted in an application for temporary injunction. Although, the Tribunal's stay order is not. on the record of this case, we believe it to be factually correct because it was not controverted by the respondents' learned counsel during course of arguments.
5. What happened during this period was that on 4‑12‑1983 a sum of Rs.200 was recovered from his possession in consequence of a raid conducted by Mr. Abdul Matloob, Mag1strate 1st Class, Gujranwala on the complaint of one Mr. Riaz Ahmed made to Mr. Zulliqar Ali, Inspector, Anti‑Corruption Establishment, Gujranwaia to the effect that he had demanded the aforementioned amount as illegal gratification in consideration for changing the electricity meter of the complainant's house. He was suspended from service by order dated 6‑12‑1983 with effect from 4‑12‑1983. Subsequently, he was convicted by the Special Judge, Anti‑Corruption concerned under section 161 of the Pakistan Penal Code read with section 5(2) of the Prevention of Corruption Act, 1947 (II of 1947) and sentenced to rigorous imprisonment with a fine of Rs.1,000, in default whereof he was to undergo further rigorous imprisonment for a period of one month. On appeal to the High Court he was given benefit of doubt and acquitted by judgment dated 3‑10‑1988.
6. After having thus been acquitted, on 22‑12‑1988 he addressed a representation to the Superintending Engineer, 1st Circle (E) WAPDA, Guiranwala (respondent No. 1) where it was prayed that the dues on his suspension period may be granted to him because he had been acquitted by the Court. This representation was considered by the Chairman Area Electricity Board, Gujranwala who decided that the period of his suspension from 4‑12‑1983 to 11‑12‑1985 shall be treated as leave extraordinary (without pay). The date of 11‑12‑1985 is material in the sense that on that date he was dismissed from service by Office Order No. 212‑(Annexure K) "in pursuance of orders dated 10‑11‑1985 of the Federal Service Tribunal in Appeal No. 208(R) of 1984."
7. The validity of order dated 16‑7‑1989 passed by the Chairman, Area Electricity Board, Gujranwala on his representation has been challenged in the present appeal under section 4 of the Service Tribunals Act, 1973. The prayer is that on cancellation of this order respondents be directed to make payment of full salary due to him for the period of suspension from 4‑12‑1983 to 11‑12‑1985.
8. The aforementioned facts have led us to the conclusion that the appellant is not entitled to the requisite relief. The competent Authority has treated the period of his suspension as leave extraordinary (without pay) and we hold that there is nothing legally wrong with this order. The order of his suspension dated 4‑12‑1983 was passed under Rule 5(i) which provides "that in case where a WAPDA employee is accused of subversion, corruption or misconduct, the competent authority may require him to proceed on leave or, suspend him, provided that any continuation of such leave or suspension shall require approval of the next higher authority after every three months." Reliance appears to have been placed by both the parties in support of their cases on the provisions of FR‑54 which are to the following effect:
"F.R. 54: ‑When the suspension of a Government servant is held to have been unjustifiable or not wholly justifiable; or
When a Government 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."
9. These provisions say that the appellant could be entitled to the dues of suspension period in two eventualities: First, when the order of his suspension had been held as unjustifiable or not wholly justifiable. The second could come about on his reinstatement in service. However, neither of these two situations is attracted by the facts of this case. The first because the validity of order of suspension does not appear to have ever been challenged by the appellant. Even in the present appeal the relief sought is that a direction be issued to the respondents for payment of suspension period dues to him. Under challenge is the validity of order dated 16‑7‑1989 whereby this period was treated as leave extraordinary (without pay). Therefore, the validity or otherwise of the order dated 4‑12‑1983 is only indirectly involved. The present appeal does not give rise to any occasion for examining the merits of the order of suspension.
10. We may nevertheless examine the validity of continuation of the order of suspension, given the fact that it has been challenged in the present appeal. One of the grounds in support of the relief sought is that the appellant was kept under suspension for an indefinite period without lawful authority and also without obtaining prior approval from the next higher authority for every three months in accordance with Rule 5 of the Rules and that he is, therefore, entitled to full wages of suspension period. This is factually incorrect, in that orders Annexure A to Annexure E attached with the written statement bear out that continuation of suspension beyond initial period of three months was approved by the competent authority from time to time in accordance with the requirement of Rule 5(i) of the Rules.
11. This was regarding the first eventuality visualised by F.R. 54 of the Fundamental Rules. The second could come about only on reinstatement to entitle him to the dues of suspension period. The record, however, shows that he was never reinstated after the judgment of acquittal had been passed. In actual fact, as the record bears out, he had not been removed from service on account of conviction under Rule 8 of the Rules. When the order of suspension was passed on 4‑12‑1983, he was in the performance of his duties as Line Superintendent only on the strength of Labour Court's order of 20‑10‑1982 reinstating him in service. So far as the Authority was concerned, he stood removed from service with effect from 13‑2‑19132 in consequence of disciplinary proceedings. The Labour Court's order was subsequently held by the High Court On 21‑4‑1984 to be without jurisdiction. Although ‑a stay order is subsequently stated to have been issued in his favour by the Tribunal in an appeal under section 4 of the Act, the fact remains that his removal from service had taken place on 13‑2‑1982 after which he remained in service, not in his own right but by virtue of the orders passed by the Labour Court on 20‑10‑1982 and the Tribunal on his application for temporary injunction. When the appeal was dismissed by the Tribunal, the order of removal from service dated 13‑2‑1982 became effective. As a matter of fact, it was on account of the order of removal dated 13‑2‑1982 that the Authority did not proceed against him departmentally after his arrest in the corruption case.
12. Except the provisions of Fundamental Rule 54, the appellant's learned counsel could not point out any rule or law under which the appellant could be held entitled to the dues of suspension period. In so far as F.R. 54 goes, we have already held that its provisions do not bring about any occasion or justification for a finding that he was entitled to the dues of suspension period, merely on the ground of having been acquitted in the criminal case of corruption.
13. For these reasons, we do not find any substance in this appeal. It is accordingly dismissed as being without force. There will, however, be no order as to costs.
A.A./795/Sr.F ???????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.