SHAHBAZ ASHRAF KHAN CHEEMA Versus COMMISSIONER, SARGODHA DIVISION
M. SALEEM CHAUDHRY (CHAIRMAN).‑----- In this case, we allowed the appeal of Shahbaz Ashraf Khan Cheema on 18‑1‑1979, holding as under :‑
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We find that the appellant was guilty only of the irregularity of not recording the attestation of the mutations in writing on the spot and doing the same at a later date. This irregularity has, however, not caused any material harm or benefit to anybody. A minor penalty would, therefore, have been sufficient in this case. We, therefore, set aside the penalty of retirement from service imposed upon the appellant and substitute it with the penalty of stoppage of one increment."
2. The Department, vide their letter dated 22‑4‑1979 made the following reference‑---
"2. . . . . . . . . . .
As a result of this decision the Naib‑Tehsildar was re‑instated on 3‑2‑1979. He remained out of service for the period from 13‑5‑1975 to 2‑2‑1979.
According to rule 3.7 of the Civil Service Rules (Punjab), Volume I, Part I, the Appellate Authority may also pass orders about the payment of the period of absence and the nature of' the period, i. e. whether this period shall be treated as period spent on duty or not.
It is also not mentioned in the judgment dated 18‑1‑1979, whether stoppage of increment is ordered with or without future effect."
3. It was desired in the letter that the orders of the Service Tribunal may be obtained in this regard.
4. The appellant and the learned Government Pleader were summoned and have been heard. The Government Pleader relied upon Government of West Pakistan v. Mian Muhammad Riaz (P L D 1976 S C 202), to raise the contention that the appellant had not been acquitted honourably and the charges against him had not been disproved. Therefore, the appellant was not entitled to the salary for the period in dispute.
5. In the above authority the Supreme Court of Pakistan affirmed their earlier view expressed in P L D 1973 S C 589 and also the view expressed by the Lahore High Court in Sardar All Bhatti v. Pakistan (1961 P L C 664). In both the authorities above, honourable acquittal implied that the charges were held to be false after due trial and not merely "not proved".
6. The appellant, on the other hand, relied upon provisions of section 16 of the Punjab Civil Servants Act which provided as under:‑
"16. Pay.‑A civil servant appointed to a post or grade shall be entitled in accordance with the rules to the pay sanctioned for such post or grade:
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Provided further that where a civil servant has been dismissed or removed from service or reduced in rank, he shall, in the event of the order of dismissal, removal from service, or reduction in rank being set aside be entitled to such arrears of pay as the authority setting aside the order may determine."
7. According to the appellant, it was only in the cases of dismissal, removal from service or reduction in rank that the discretion was left with the Authority setting aside the orders of imposing the above penalties, in all other cases, the appellant had the right to get the salary in the grade prescribed for the post held by him. He also submitted that rule 7.3 of the C. S. R. (Punjab), Volume I, Part 1, was rather less stringent which empowered the Departmental Authorities to withhold the pay, only if the Civil Servant dismissed or removed from service was not honourably acquitted. Thus neither section 6 of the Punjab Civil Servants Act, 1974, nor rule 7.3 of the C. S. R. (Punjab), Volume I, Part I, disentitled the appellant to get the salary.
8. After careful examination of the respective contentions advanced before us and the relevant provisions contained in section 16 of the Punjab Civil Servant' Act, 1974, and rule 7.3 of the C. S. R. (Punjab), Volume I, Part I, we are clearly of the view that both the provisions above, are not attracted to the facts of this case. Rule 7.3 in terms dealt with the cases of re‑instatement in cases of a Government servants dismissed or removed from service. Similarly, the provisions contained in section 16 of the Punjab Civil Servants' Act, 1974, empowered the Government to withhold salary of the civil servant, if not acquitted honourably but were dismissed, removed or reduced in rank by the Departmental Authorities. In the present case, the appellant was admittedly retired from service. Thus in terms, this case was not covered by any of the provisions above. Needless to state that the implication of the retirement was that the civil servant concerned was entitled to the benefit in the form of pension admissible under the rules. Thus the implication was that the financial benefits ware not denied to him, if admissible under the rules. Even on merits, we find that the appellant has been held to be guilty of mere ignorance entailing the penalty of A stoppage of one increment which itself is a financial loss. Thus in our view, the appellant should be treated to be on duty, and he is entitled to full pay etc. for the period he remained out of service.
9. As regards the stoppage of increment, it shall be without any future effect.
10. We dispose of the reference of the Commissioner, Sargodha Division, and the application of the appellant with the observations above. Parties be informed accordingly.
Order accordingly.