1988 PLC(CS) 674
ORDER
The relevant facts for the decision of present appeal are that the appellant was serving as XEN Highway, Attock in the year 1980, when he resigned and left for abraod but unfortunately the respondents instead of accepting his resignation, proceeded to initiate disciplinary proceedings against him. The relevant portion of the charge‑sheet is as under:‑
"That while posted as Executive Engineer, Highway Division, Attock, you tendered a telegraphic resignation w.e.f. 12‑11‑1980 and relinquished charge without waiting for its acceptance, thereby willfully absenting yourself from duty in an unauthorised manner."
The proceedings ended in the order of his dismissal from service. The appellant came back to Pakistan on 22‑12‑1982. He learnt that the Department instead of accepting his resignation had proceeded to dismiss him from service therefore, he filed an appeal with Respondent No.l. The same was rejected.
2. The appellant thereafter filed appeal No.165/750/84 in this Tribunal. This appeal was allowed vide judgment dated 13‑1‑1985 and copy of the same is placed as Annexure 'F' with the present appeal: The concluding para. of the judgment reads as under:‑
"In view of the above we proceed to accept the appeal, set aside the impugned order being legally defective and declare the appellant still continuing to bay in service. The intervening period would be treated as leave extraordinary without pay as the appellant has himself filed an application in which he has accepted that in case he is re‑instated, in service he will not claim any pay for the period during which he remained out of service. However, it is now for the departmental authorities to proceed further with this case in the light of the observations made by us in accordance with law so laid down in this behalf, if it is found necessary, therefore, the case is remanded to the authority for the said purpose."
The Respondent No.l as Authorised Officer intimated the appellant vide order dated 27‑1‑1981, that the proceedings against the appellant have been dropped with the approval of the Authority. The appellant thereafter submitted a representation for pay and allowances. This application was rejected by Respondent No.1 and the decision was intimated to the appellant vide Memo. dated 18‑3‑1986. The appellant feeling aggrieved by this rejection order, filed the present appeal. The same came up for hearing on 20‑7‑1986 and notice was issued to the respondents. The Respondents have contested the appeal, filed written objections and prayed for its dismissal.
3. I have heard the learned counsel for the appellant as well as learned District Attorney on behalf of the Respondents.
4. The learned counsel for the appellant has argued that since the inquiry was dropped by the Respondents therefore, the appellant will be deemed to be in service throughout. In this behalf reliance is placed on rule 7.3 CSR(Pb) Vol I, Part I and case reported as PLD 1970 S C 415. It is‑ argued that since the appellant was treated or. duty, therefore, he is entitled to the following reliefs:‑
(a) Salary w.e.f. 12‑10‑1980 to 13‑1‑1985:
(b) Increments accrued during this period; and
(c) The service to be counted towards pension.
5. On the other hand learned District Attorney has argued that the relief to the salary was foregone by the appellant himself and in any case, since the Tribunal has held that the appellant is not entitled to any pay and the appellant did not assail this order before any forum, therefore, he cannot now claim salary. As regards increments, it is argued that since the period from 12‑11‑1980 to 13‑1‑1985, was treated as extraordinary leave, therefore, the increments cannot be allowed. In this behalf reliance is placed on proviso to rule 4.9. CSR(PB) Vol. I, Part. I. The same reads as under:‑
"4.9: ...
Provided that the competent authority may, in any case, where it is satisfied that the leave was taken on account of illness or for any other cause beyond the Government servants control, direct that extraordinary leave shall be counted for increments under this clause.
It is argued in respect of last claim that since the leave was extraordinary, therefore, this period cannot be counted towards pension.
6. I have given my anxious consideration to the arguments of both the sides. Now I take up the claim of the appellant fur the pay. I am of the considered view that the appellant is not entitled to claim arrears of pay for the reasons:‑
(i) Firstly, the appellant has himself given up the claim as indicated in the earlier judgment of this Tribunal.
(ii) Secondly, it is admitted position that the appellant went abroad and joined service, therefore, he could not claim the pay at least for the period from 12‑11‑1980 to 22‑12‑1982;and
(iii) Thirdly, claim for arrears was disallowed by this Tribunal in its earlier judgment, which has attained finality as it was not challenged in any forum.
I, therefore, hold that the appellant is not entitled to any amount as arrears of pay.
7. Now I take up the other claim of the appellant for increments. I am of the firm view that proviso to Rule 4.9 of CSR (Pb) Vol. I, Part I, relied on by the learned District Attorney does not help the respondents. On the other hand it empowers the 'competent authority' to waive rules and order that extraordinary leave shall be counted for increments under this clause. I am of the considered view that this is a fit case for exercising the powers vested under the proviso to Rule 4.9 of CSR (Pb) Vol. I Part I, and to grant the increments especially in view of the fact that Tribunal has categorically declared that the appellant shall be deemed to be continuing in service. The appellant came back on 22‑12‑1982, and he could not assume duty for no fault of his, therefore, he is entitled to the increments for the date of his disputed period as the appellant has been held to be continuing in service viz. 12‑11‑1980 to 13‑1‑1985. It is admitted fact and there is no dispute as to the accrual and entitlement of increments to the appellant prior and subsequent to this period. This Tribunal enjoys all the powers of departmental authorities after appeal is admitted to regular hearing, therefore, I exercising the powers of competent authority order that the period from 12‑11‑1980 to 13‑1‑1985, be counted for increments and the appellant is entitled for the increments.
8. I now deal with the last argument on behalf of the appellant with regard to the pension. The learned counsel for the appellant in support of his claim has relied or, the case of Muhammad Shaukat Tarar v. Government of Punjab, reported as "1981 P L C (CST)324". In the reference case the appellant was reinstated in service but it was observed that he will not claim salary from Government for the period he remained out of service as he had been a practising lawyer. On the analogy of this case the learned counsel for the appellant has claimed that payable and payability are two different things. It is maintained that the appellant has agreed not to claim the pay but it did not mean that he was not entitled to the arrears.
9. On the other hand learned District Attorney has argued that the period of extraordinary leave is not to be counted towards pensionary benefits. Learned counsel for the appellant maintained that the appellant did not apply for extraordinary leave but this via‑media was adopted only to cover up the intervening period. Therefore, the appellant did not avail extraordinary leave and cannot be held to be disentitled to pensionary benefits.
10. I have considered the arguments of both the sides and I am of the considered view that the appellant is entitled to pensionary benefits for the period from 12‑11‑1980 to 13‑1‑1985 notwithstanding the fact that he had not actually been paid any salary out of the Provincial Consolidated Fund.
11. The upshot of the discussion is that the appeal is partly allowed in respect of claim for increments and pensionary benefits while claim for arrears of pay it is dismissed. There is no order as to costs.
M.Y.H./211/Sr.P Appeal partly allowed.