BEFORE THE BALOCHISTAN SERVICE TRIBUNAL, QUETTA

Selected Judgments and Orders 1

BEFORE THE BALOCHISTAN SERVICE TRIBUNAL, QUETTA

PRESENT:

Mazhar Ilyas Nagi, Chairman

Muhammad Zeeshan-ul-Haq, Member-I

Abdul Latif Khan Kakar, Member (Judicial)

………………………

S.A. No. 138/2019

Muhammad Haseen Afridi s/o Muhammad Abrahim Khan.

R/o Afridi House No.3, Spinny Road,

Quetta.

Ex-District Food Controller,

Government of Balochistan,

Quetta. .…….………………………………...……....………… Appellant

VERSUS

1. Secretary Food Department,

Government of Balochistan, Quetta,

2. Director General Food,

Government of Balochistan, Quetta. ………....……………….... Respondents

For Appellant: Ghulam Mustafa Butt Advocate.

For respondents: Mr. Muhammad Aslam Jamali

Assistant Advocate General,

Balochistan.

Date of Hearing: 09-12-2020.

Date of announcement: 16-12-2020

JUDGMENT

MAZHAR ILYAS NAGI, CHAIRMAN. --- Appellant has filed this appeal

under section 4 of the Balochistan Service Tribunals Act, 1974, with following

prayer:-

“It is accordingly respectfully prayed that the impugned order dated 8-

8-2018 passed by the respondents may please be modified to the extent

of sending the case of the salaries to Law Department and the

respondents may be directed to release all the salaries of the appellant

AND any other order which this Honourable Tribunal deems fit and

proper in the circumstances of the case may also awarded in favour of

the appellant in the interest of justice, equity and fairplay.”

2. Brief facts and circumstances giving rise to this appeal, as asserted

by learned counsel for appellant and gleaned from the documents placed on

record by the appellant as well as respondents, are that----

(1) Appellant was appointed as Stenographer in the Food

Department vide Order dated 02-09-1978 and stood

promoted to the rank of District Food Controller.

Balochistan Service Tribunal, Quetta 2

(2) During the period of appellant’s posting as Assistant

Director Food / In-charge P.R. Centre, Chaman, he was

called upon to explain his position with regard to

irregularities in issuance of wheat stock which was replied

on 18-08-2010 but same was found unsatisfactory as

intimated by Deputy Director Food Quetta Zone vide letter

No.34-DFO/Rec:/2010/626-98 dated 23-09-2010.

(3) Thereafter, Director Food Balochistan informed the

Secretary Food vide letter No.856-E.Admn:/ 2012/ 999

dated 22-02-2012 that appellant was wilfully absent from

duty and his whereabouts were not known and requested

for taking disciplinary action against him.

(4) Aforesaid letter was followed by another letter No.856-

E.Admn:/ 2012/ 1362-64 dated 16-03-2012 whereby

Director Food Balochistan again requested the Secretary

Food to initiate disciplinary action against appellant for his

misconduct of remaining wilfully absent from duty.

(5) Intra-departmental correspondence shows that Deputy

Director Food Quetta Zone, vide letter No.10-DFO/

Chaman/2011-12/664-67 dated 18-06-2012 informed the

Director Food Balochistan that despite all out efforts i.e.

stoppage of his salary w.e.f. 07-05-2012 and publication in

daily Century Express dated 24-03-2012, appellant’s

whereabouts were not traceable and he proposed to initiate

strict disciplinary action against appellant to avoid future

complications.

(6) Record further reveals that Food Department sent two

letters to the Director Food Quetta Zone on 20-06-2013 &

21-06-2013, resultantly a Notice No.856-

E.Admn:/2013/3876-79 dated 27-06-2013, along with

Order of Inquiry/ Statement of Allegation, was claimed to

be sent to appellant (through Registered AD) with

direction to appear in person before the Inquiry Officer Mr.

Ghulam Ali Baloch on 28-06-2013 at 10.00 AM followed

by another letter dated 08-07-2013 with direction to

appellant to appear before the Inquiry Officer on 12-07-

2013 at 10.00 AM.

(7) Perusal of documents placed on record by the respondents

further reveal that Chief/ Secretary/ Competent Authority

issued a Show Cause Notice PS/CS/Misc.-98-Vol.-XI-

2534 dated 24-11-2014 on the allegation of “leaving the

duty station without permission of the Competent Authority

and absent from duty since January 2012 till date” and

said Notice was claimed to be sent to appellant on his

known address (through Registered AD) on 27-11-2014

with direction to submit his written defence within seven

(07) days of the receipt of this notice.


(8) It seems that said Notice could not be served on appellant,

therefore, same was got twice published in daily Century

Express dated 04-01-2015 & 05-02-2015.

(9) After elapse of a long period of about 02 years, Director

Food Balochistan, vide letter No.856-E.Admn:/

PF/DFC/2017/ 6441 dated 24-01-2017, again requested the

Secretary Food to approach the Inquiry Officer to furnish

the inquiry report to proceed further in the matter and

further requested to get extended the suspension period of

appellant from the competent authority.

(10) Matter remained pending for another year and D.G. Food,

vide letter No.856-E.Admn:/ PF/DFC/2018/ 684 dated 02-

02-2018, informed the Secretary Food that appellant was

going to attain age of superannuation (retirement) on 18-

05-2018; that NAB had arrested him and filed against him

a Reference on the allegation of misappropriation and

embezzlement of Government wheat stocks of millions of

rupees and case was under trial in the Accountability Court

of Balochistan. It was also requested to issue retirement

order of appellant and withhold his all financial pensionary

benefits till finalization of the embezzlement case in the

Court of Law.

(11) Secretary Food issued a Notification No.SOE/1-8(47)

2018/122-25 dated 08-03-2019 in pursuance whereof

appellant stood retired from Government service with

retrospective effect i.e. 18-05-2018, however, it was

stipulated that “keeping in view the enquiry under BEEDA,

2011, cases pending against him in court of law, all the

financial pensionary benefits due to be paid to the accused

officer are hereby ordered to be withheld till finalization of

the embezzled enquiry by the inquiry officer and case

pending in the court of law”.

(12) Meanwhile, appellant was arrested by National

Accountability Bureau (NAB) and a Reference No.01/2015

was filed before the Judge Accountability Court,

Balochistan Quetta arraigning therein appellant and 03

others as accused. It was alleged that appellant and other

accused, in connivance with each other, embezzled

100,387 bags of wheat worth Rs.292.878 million from

PRC Chaman, District Killa Abdullah and PRC Chaman at

Pishin. Appellant approached twice to the honourable High

Court of Balochistan and thereafter honourable Supreme

Court of Pakistan for grant of bail but same was rejected.

Finally, however, appellant’s C.P. No.106/2018 was

allowed vide Order dated 24-04-2018 and honourable High

Court of Balochistan granted bail to him subject to

furnishing bail bonds in the sum of Rs.5 million with two

sureties of equivalent amount of 2.5 million.


(13) Record further reveals that appellant attained age of

superannuation on 18-05-2018 and D.G. Food Balochistan,

vide letter No.856-E-Admn./PF/ DFC/ 2018/2219 dated

08-08-2018, requested the Secretary Food Department to

approach Law Department for interpretation of law on the

question of payment of salary and pensionary benefits to

appellant under aforesaid peculiar facts and circumstances

of the case. Nothing is available on record to show that

Law Department had tendered any advice, however,

surprisingly respondents Secretary Food and D.G. Food,

annexed with their joint para-wise comments a letter of

Law Department bearing No.Opn:Law/1-14(2007-

11)/7642 dated 09-10-2018 but perusal thereof revealed

that said opinion was tendered in the case of Mr. M.

Naeem Foodgrain Supervisor.

(14) Consequent upon release from jail, appellant preferred

application dated 20-11-2018 for release of his salaries.

However, aforesaid application, preferred by appellant

remained un-responded, therefore he approached this

Tribunal by filing instant service appeal on 03-04-2019.

3. Learned counsel for appellant forcefully contended that appellant’s salary

could not have been withheld for the reasons firstly that he was never terminated,

dismissed, or removed from service; secondly that no provision of any law

authorises the official authorities to stop the salary of a civil servant under any

circumstances, rather by withholding appellant’s salary during the period of

suspension from service, respondents have derogated the Injunctions of Islam as

well as disregarded the Fundamental Rule 54 (F.R.54). Learned counsel, in

support of such contention, has placed reliance on the judgment of honourable

Supreme Court (Shariat Appellate Bench) rendered in the case of

GOVERNMENT OF N: W.F.P: versus I. A. SHERWANI and another (PLD

1994 Supreme Court 72). Learned counsel advanced argument that during the last

08 years, neither departmental disciplinary proceedings nor criminal prosecution

could culminate in imposition of any departmental penalty nor could he be

convicted in criminal prosecution for the sole reason that case built against

appellant was of no evidence. Learned counsel augmented his argument with

vehemence that co-accused in the instant case, who managed to be in the good

books of the bosses, were allowed by the respondents to remain in service and

enjoying salaries etc and that to the contrary, appellant, who is similarly placed,

in similar situation and in similar ambient circumstances, has been made to suffer

and starve by arbitrary stoppage of his salary that is a classic example of

favouritism and exploitation violative of Articles 3&25 of the Constitution of

Islamic Republic of Pakistan (1973). Lastly, learned counsel prayed for allowing

the instant appeal with direction to respondents to release past as well periodic

salaries of appellant.

4. Conversely, respondents have contested the case by filing para-wise

comments. Learned AAG, appearing on his behalf, opposed the contentions

advanced by the learned counsel for appellant. Learned AAG contended that

appellant remained fugitive from law and justice from March, 2012 till his arrest

by the NAB on 20-11-2015; that he remained committed to jail till 24-04-2018


when he was admitted to post-arrest bail by honourable High Court of

Balochistan; that he was time and again directed to attend the office and appear in

pending inquiry proceedings initiated against him by issuance of notices on his

available address as well as publication in Newspapers but he did respond; that

several departmental inquiries as well Reference before Accountability Court are

pending against him on the allegations of embezzlement of 100,387 bags of

wheat from PRC Chaman, District Killa Abdullah and PRC Chaman at Pishin

and causing colossal loss to public exchequer amounting to Rs.292.878 million.

Learned AAG further contended that in view of aforesaid circumstances,

appellant, having persistent reputation of being corrupt, was placed under

suspension and his salary was stopped, as such appellant is not entitled to salary

for the period he remained fugitive from law and justice. Responding to the

contention of learned counsel for appellant’s that he was subjected to

discrimination by allowing the co-accused officials to remain on duty and

continuous payment of salary to them, learned AAG contended that there was a

marked distinction in the conduct of other co-accused and appellant in that

former appeared and faced inquiries, whenever asked, while later remained

fugitive from law and justice. Lastly, learned AAG prayed for dismissal of instant

appeal, being frivolous and devoid of any merits. Respondents AAG has made an

attempt to controvert the law providing for payment of salary and all other

benefits, facilities during the period appellant remained under suspension by

placing reliance on the principle “where there was no work, there was no pay”

applied by honourable Supreme Court of Pakistan in the peculiar facts and

circumstances of the case of Syed NIAZ HUSSAIN SHAH BUKHARI,

TECHNICIAN (PROCESS) versus OIL AND GAS DEVELOPMENT

CORPORATION LIMITED through Chairman, OGDC Head Office, Islamabad

(2003 SCMR 228).

5. We have heard the arguments advanced by learned counsel for appellant

and AAG and carefully gone through the facts and grounds taken in the memo of

appeal as well as rebuttal by the respondents in their para-wise comments. We

have also perused the record of the case with valuable assistance of learned

counsel and AAG.

6. We have noted with great concern that respondents have advanced

numerous controversial facts or ticklish questions which they themselves were

under legal obligation to resolve at departmental level in accordance with law in

which they miserably failed. To the contrary, we seized with the sole matter

relating to payment of salary to a civil servant placed under suspension. It is a

matter of great concern that there were serious charges of misappropriation and

embezzlement of colossal public money against the appellant. There was also a

serious allegation of absence from duty or remaining fugitive from law and

justice, whatever it may be, for considerable long period of more than 03 years

for which a show cause notice was also sent on appellant back in the year 2014

under S.3 of the BEEDA, 2011 followed by publications in the Newspapers. Mr.

Ghulam Ali Baloch was also appointed as Inquiry Officer but fate of said inquiry

was also not disclosed in the Court. Respondents and other officers of the Food

Department Authorities remained entangled in frivolous correspondence,

spreading over several years, instead of passing any final order and also allowed

the appellant to attain the age of superannuation involving more complications.


We are at loss to comprehend what prevented the respondents at least to pass a

final Order under S.7 (f)(ii) of the BEEDA, 2011 which reads as under:-

(ii) where charge of un-authorized absence from duty for a

period of more than one year is proved against the accused,

the penalty of compulsory retirement or removal or dismissal

from service shall be imposed upon the accused.

(underlining supplied by us)

On the contrary, respondents surprisingly remained indifferent like a

silent spectator, irrationally kept mum, procrastinated the matter and miserably

failed to proceed against the appellant and pass a final order within the time-

frame provided in the BEEDA, 2011 or even within a reasonable time. It makes

no sense. After elapse of considerable long period of more than 08 years, it is

being argued before us that several inquiries and NAB Reference are pending

against the appellant. It has not been denied that no final Order (of prescribed

punishment) has been passed till today under BEEDA, 2011. If departmental

authorities were/ are under some misconception of law with regard to initiation of

departmental disciplinary proceedings during the pendency of criminal

prosecution/ NAB References, though this issue is also well-settled in numerous

cases, suffice to make reference to the principle laid down by honourable

Supreme Court in the case of DAWOOD ALI versus SUPERINTENDENT OF

POLICE and others (2005 SCMR 948), relevant extract wherefrom is

reproduced under:-

“Departmental penalty was imposed on the civil servant not on

account of criminal proceedings but as a consequence of

departmental inquiry in which he was found guilty of the charge.

Departmental and criminal proceedings could be taken

simultaneously and independent of each other. Supreme Court

declined to interfere in the judgment passed by Service Tribunal.

Leave to appeal was refused.”

(underlining and emphasis supplied by us)

Respondents have also annexed with their para-wise comments a Charge

Sheet dated 31-12-2013 which is unsigned and even space for insertion of name

of appointed Inquiry Officer has been left blank. Another document captioned as

“Order of Inquiry Under Section 9(2)” is also made available on record but

without any suggestion as to whether any formal inquiry was held against the

appellant by the Inquiry Officer and, if so, with what result? Nothing has been

argued in this regard during the course of regular hearing of the instant case.

Appellant was allowed to go scot-free and attain the age of superannuation on 18-

05-2018 and factually a Notification No.SOE/1-8(47) 2018/122-25 dated 08-03-

2019 was issued in pursuance whereof appellant stood retired from Government

service with retrospective effect i.e. 18-05-2018. D.G. Food Balochistan,

however, vide letter No.856-E-Admn./PF/ DFC/ 2018/2219 dated 08-08-2018,

requested the Secretary Food Department to approach Law Department for

interpretation of law on the question of payment of salary and pensionary benefits

under aforesaid peculiar facts and circumstances of the case. Nothing is available

on record to show that Law Department had tendered any advice, however,

surprisingly respondents Secretary Food and D.G. Food, annexed with their joint

para-wise comments a letter of Law Department bearing No.Opn:Law/1-

14(2007-11)/7642 dated 09-10-2018 but perusal thereof revealed that said


opinion was tendered in the case of Mr. M. Naeem Foodgrain Supervisor which

is nothing but an attempt to mislead the Court.

7. We are also surprised that appellant has invoked the jurisdiction of this

Tribunal to seek directions to the respondents to release his salaries but the

controversy relating to his attaining the age of superannuation (retirement) and

payment of pensionary/ retirement benefits has not been called into question.

However during the pendency of instant appeal, appellant, through CMA

No.362/2020, simply place on record a Notification No.SOE/1-8(47) 2018/122-

25 dated 08-03-2019 in pursuance whereof appellant stood retired from

Government service with retrospective effect i.e. 18-05-2018, wherein it was

stipulated that “keeping in view the enquiry under BEEDA, 2011 cases pending

against him in court of law, all the financial pensionary benefits due to be paid to

the accused officer are hereby ordered to be withheld till finalization of the

embezzlement enquiry by the inquiry officer and case pending in the court of

law”. Above Notification was placed on record without any suggestion as to the

object thereof, therefore, we are not inclined to take cognizance of said

Notification and touching the merits of the case relating to appellant’s pensionary

benefits etc. in the absence of any prayer to this effect.

8. Be that as it may. The question involved in the instant appeal is with

regard to payment of salary during the period a civil servant remains under

suspension, so we confine ourselves to determination of legal position in this

regard that was otherwise set at rest by honourable Supreme Court of Pakistan

back in the year 1994. At this stage, we are of the view that there is a need to

refresh the memory of the authorities concerned on this proposition of law.

9. Coming directly to the question involved in the instant case, we are of the

considered view that order of suspension is not a penalty and it does not violate

any legal right vesting in the suspended Government servant even if there is some

harassment. There may not be any cavil with the proposition that discretion in

regard to placing a Government servant under 'suspension' fell with in the domain

of competent authority under the relevant service law. Government servant,

however, cannot be made to suffer any monetary loss as during his suspension he

would be entitled to full salary and other benefits of his post. Government

servant, however, cannot force Authorities to put him in charge of the post he

was holding especially when during his posting he was charged for corruption.

Suspension is provided in law having a complete mechanism of its own. We are

fortified in our view by principles laid down by honourable Superior Courts in

the cases of Mian MUHAMMAD HAYAT versus PROVINCE OF WEST

PAKISTAN (PLD 1964 SC 321); FAZAL AHMED JAT versus SECRETARY,

ESTABLISHMENT DIVISION, ISLAMABAD and 2 others (2001 PLC (C.S.)

194); and FEDERATION OF PAKISTAN through Secretary Establishment

Division versus SHAHID HAYAT and another (2010 SCMR 169 = 2010 PLC

(C.S.) 951).

By tracing the history of withholding payment of salary to a civil/

Government servant during the period he is placed under suspension, we find that

it was/is regulated by Fundamental Rule 53 (F.R.53) which previously read as

under:-

Fundamental Rule 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 servant: 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:'

(underlining and emphasis supplied by us)

Similarly, serial No.107 of the ESTACODE, at the relevant time, provided

for following payment and amenities admissible to Government servant under

suspension:-

“Inquiries are being received in this Division in respect of payment of

pay, allowances and other amenities to the suspended officers during the

period of their suspension. The undersigned is directed to state that a

Government servant, as well as an officer/employee of Government

controlled Corporation/Autonomous Organisation under suspension is

entitled to the following payments/facilities:--

(i) Subsistence grant.--- Equal to one-half of the suspended Government

servant as laid down in the Ministry of Finance O.M.

No.12(32)R.3/70, dated 14-2-1970.

(ii) Allowances.---Compensatory allowances as specified below if

admissible before suspension:--

(a) Senior post allowance.

(b) House rent allowance.

(c) Local compensatory allowance.

(d) Conveyance allowance."

Bill for the residential telephone has to be paid by the employee

and the residential orderly and transport when supplied will be

withdrawn.”

Aforesaid provisions of law and instructions, providing for stoppage of

salary and grant of subsistence allowance to suspended civil servants/

Government servants/ employees of statutory bodies, was challenged before the

honourable Federal Shariat Court under Article 203D of the Constitution of

Islamic Republic of Pakistan (1973) in the case of I.A. SHARWANI versus

GOVERNMENT OF PAKISTAN (Shariat Petition No.4/1 of 1988; 1991 MLD

2613) on the strength of argument that the same was in violation of all the

recognised principles of natural justice as well as totally repugnant to the

fundamental tenets of Islam. After hearing distinguished counsels as well as

Juris-consults and testing the aforesaid provisions of law and instructions on the

touchstone of Injunctions of Islam, as laid down in the Holy Quran and the

Sunnah of the Holy Prophet (peace be upon Him), honourable Court arrived at

following conclusion:-


5. As regards the order of suspension from service under the rule

reproduced above, it necessarily entails stoppage of the salary of a civil

servant and paying him only a subsistence allowance. No one supported

this effect of the rule and all the Juris-consults, as also Hafiz S.A.

Rahman, were of the view that the State or Government has no power or

authority of the type, under Qur'an and Sunnah and under a valid

contract of service to unilaterally stop the salary of a civil servant, even

during the period it is conducting an inquiry against him or taking

disciplinary proceedings. The reliance was placed on Surah No. Verse

22. This was a case of Hazrat Mistah Ibn-e-Asasah. He was involved in

a case of Qazf and was later duly punished for the offence. Hazrat Abu

Bakr had stopped his financial assistance on which this verse was

revealed directing that the payment should not have been stopped. It was

argued that though Hazrat Mistah had no right under any law or under

a contract to receive the salary and as it was just a gratuitous payment

its stoppage for an accusation was not favoured by Allah Almighty. It

may further be noted that the accusation was in respect of Hazrat Aisha,

the beloved wife of the Holy Prophet (P.B.U.H.) and daughter of Hazrat

Abu Bakr.

6. Thus stoppage of salary of a civil servant unilaterally, who still enjoys

the benefit of a contract, can in no case be condoned. Reliance was also

placed on verse 1 of Surah Al-Maida that `O ye who believe! fulfil your

undertakings', and the Hadith of Holy Prophet (P.B.U.H.) that the wages

of a worker be paid before his sweat dries up. It was further stated that

as according to Fundamental Rule 55 and also the other rules of same

set of rules, the civil servant being proceeded against continues to be a

civil servant, the Government cannot refuse his salary in case it does not

want to entrust him with any work to do. Reference was also made to

pages 153-155 of Esta Code (1983).

……………….

10. None of the juris-consults who appeared before us pointed out any

specific provision of Qur'an or Sunnah of the Holy Prophet (P.B.U.H.)

to say that the suspension was not permissible or prohibited. Rather,

they all supported it. They also could not show in case of Ibn-e-Lutbia or

Ayyaz Bin Ghanam or Abu Musa Ashari that they continued performing

their duties even during the period of their inquiry. Rather, the way they

were brought before the Caliph shows that they would not be permitted

to exercise their power or perform their functions after the messengers

apprehended them. We also find on the analogy of verse 34 of Surah Al-

nisa that a person entitled to a salary, can be temporarily deprived of

his job or prevented from performing the services to be rendered by him.

The English version of the verse is as under:--

"As to those women on whose part ye fear Disloyalty and ill-

conduct, Admonish them (first), (next), refuse to share their

beds, (And last) beat them lightly; but if they return to

obedience, Seek not against them means (of annoyance); For

Allah is Most High, Great (above you all):"

It may further be appreciated that the Esta Code Serial No.104, page

350 does not permit a civil servant to leave station. Fundamental Rule

55 allows him no leave. The rules thus deny both the right to work and

the 'right to earn. The Shariah Appellate Bench of the Supreme Court in

Pakistan v. Public-at-Large P L D 1987 SC 304(326) has held these


rights as valuable. The enquiry may be delayed unreasonably causing

starvation of family. So, if Government wants to deny a servant to work

elsewhere it cannot refuse him his salary.

11. The upshot of the entire discussion is that though a civil servant can

be suspended from performance of his duties, if it is in the interest of

inquiry, yet he cannot be deprived of his salary during the period of

suspension. However, he may be deprived of other additional facilities

like residential orderly, telephone and transport etc. It may also be

noted that both the suspension, and inquiry are done at the instance of

the Government. The question of expeditious conclusion of the inquiry

proceedings also mainly depends on the Government. In this view of the

matter, the Government should take expeditious steps to conclude the

inquiry and may end the contract to save the burden but it cannot stop

the salary of a Government servant as long as the contract subsists.

12. In view of the above we find no repugnancy in the Civil Servants

(Efficiency and Discipline) Rules but we hold that Rule 53 of the

Fundamental Rules and all the parallel rules of the Province's are

repugnant to Qur'an and Sunnah of the Holy Prophet. So in pursuance

of Article 203(3)(a) of the Constitution the President of Pakistan in the

first case and the Governors of the respective Provinces in the other

cases shall take steps to get them amended by 10th May, 1991, so as to

bring these provisions into conformity with the Injunctions of Islam

failing which such provisions shall cease to have effect.”

The major objection of the Federal Shariat Court on the above Rule was

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 his contract of service remains intact and valid during that

period also. The Federal Shariat Court relied upon verse No.1 of Surah

Al-Maidah of Al-Quran which reads as under:---

“O You who believe, fulfil your contracts”.

10. Aforesaid judgment of honourable Federal Shariat Court was then

assailed before the honourable Supreme Court [Shariat Appellate Bench] in

appeal under Article 203F of the Constitution of Islamic Republic of Pakistan

(1973) in the case of GOVERNMENT OF N: W.F.P: versus I. A. SHERWANI

and another (PLD 1994 Supreme Court 72) and appeal was dismissed in the

following terms:-

“Unbridled power in the hands of the employer to convert the salary

into "subsistence grant" amounts to an exploitation which is termed by

the Holy Prophet (p.b.u.h.) as "Gharar". Contract allowing unilateral

and arbitrary reduction of salary without any fault having been proved

against the employee is itself repugnant to Injunctions of Islam.

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 relevant Hadith 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 determined at his own pleasure, it will fall under

the "Gharar" prohibited by this saying of the Holy Prophet (p.b.u.h.).

Rule 53 of Fundamental Rules and rule mentioned in Sl. No.106 and all

the parallel rules of the Provinces were repugnant to Injunction of Islam

to the extent that they deprive Government servants of their full salary

and other benefits during the period of suspension. Suspended

Government servant was entitled to full amount of his salary and all

other benefits and facilities provided to him under the contract of

service.

It was mentioned in the Sl. 104 that an Officer under suspension was

generally prohibited from leaving station (ESTACODE, page 530,

Edition 1989) and Fundamental Rule No.55 provided that leave may not

be granted to a Government servant under suppression. It was also

evident that he could not join any other service during the period of his

suspension. It clearly indicated that he was detained for the service of

the Government and was a full-fledged Government servant during this

period. This position was expressly admitted in Sl. No.108 also where it

was 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”

It may also be worth-mentioning that honourable Federal Shariat Court, in

its judgment, while allowing full salary to a Government servant etc. placed

under suspension, held inadmissible certain facilities like residential

accommodation orderly, telephone and transport etc. provided to them.

Honourable Supreme Court modified the judgment of Federal Shariat Court and

held Government servants entitled to all these facilities, in the following terms:-

“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.”

11. As honourable Supreme Court [Shariat Appellate Bench], after declaring

Rule 53 of the Fundamental Rules and the rule mentioned in Sl. No.106 of the

ESTACODE and all the parallel rules of the Provinces as 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, had also directed

the respective Governments to carry out necessary amendment in the Rules

before 30th June, 1993, therefore, F.R. 53 was substituted vide Notification No.

S.R.O.1173(I)/94, dated 21-9-1994, published in Gazette of Pakistan,

Extraordinary, Part II, 5th December, 1994, PLD 1996 Central Statutes 461.

After substitution, F.R. 53 reads as under:-

“Fundamental Rule 53. A Government servant under suspension is entitled

to the following payments:-

(a) In the case of [an employee of the

Armed Forces] 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 Servant

under suspension, other than that specified in clause

(a), he shall be entitled to full amount of his salary and

all other benefits and facilities provided to him under

the contract of service, during the period of his

suspension.].”

Similarly, Government of Balochistan, Finance Department had also

issued Notification No. FD(R)VI-14/94/218-400/ 4013-4108 dated the 17th

April, 1995 whereby clause (b) of F.R. 53 was substituted which now reads as

under:-

“(b) Government servants other than those mentioned in clause

(a) above, shall be entitled to full amount of salary and all other

benefits, facilities, provided to them under the contract of

service, before placement under suspension.”

It may also be advantageous to point out that show cause notice was

issued to appellant under BEEDA, 2011, second proviso appended with S.6(1)

thereof itself provides “Provided further that during suspension period the

employee shall be entitled to the usual pay and allowances.”

12. Learned AAG has made an attempt to controvert the law providing for

payment of salary and all other benefits, facilities during the period appellant

remained under suspension by placing reliance on the principle “where there was

no work, there was no pay” applied by honourable Supreme Court of Pakistan in

the peculiar facts and circumstances of the case of Syed NIAZ HUSSAIN SHAH

BUKHARI, TECHNICIAN (PROCESS) versus OIL AND GAS

DEVELOPMENT CORPORATION LIMITED through Chairman, OGDC Head

Office, Islamabad (2003 SCMR 228). We have carefully gone through the facts

of said case and find that the facts and circumstances of the said case were

distinguishable from the facts of instant case, therefore, aforesaid judgment is of

no avail for the respondents. Briefly stating, facts of aforesaid case were that a

civil servant, consequent upon his transfer from one place to another, had not

performed his duties either at original place or at transferred place, thus, he was

held not entitled to salary by applying the aforesaid principle. It is not the case of

respondents here, rather instant case involves dispute relating to non-payment of

salary and all other benefits, facilities during the period a Government servant


remains under suspension and the aforesaid judgments passed by honourable

Federal Shariat Court and Supreme Court [Shariat Appellate Bench), in the case

of I.A. Sharwani (supra) attract.

Even otherwise non-performance of duty after a Government servant is

transferred from one place to other and during the period he is placed under

suspension are distinctive in nature having no nexus with each other. In the later

case of suspension, a Government servant is willing to perform his duty but he is

restrained and in former case he is under legal obligation to perform official duty

failing which he may expose him to the serious risk of being found guilty on the

charge of absence from duty.

13. In an identical case of Muhammad Naeem (S.A. No. 596/2018), wherein

it was also the contention of the respondents that payment of salary etc. to

appellant was stopped after seeking advice/ opinion of the Law Department vide

letter No.Opn:Law/1-14(2007-11) dated 09-10-2018, we had held as under-----

“We have gone through this letter with due care and find that, by placing

reliance on the same judgment reported in PLD 1994 SC 72, Law Department

was of the view that appellant was entitled to full amount of his salary and other

benefits during the period of suspension with a stipulation that he could not be

asked to perform his duties, yet has to be present on duty throughout the period

of suspension.

We have also noted that the Law Department had rightly opined that an

employee, absent from duty, renders him liable to be proceeded under the

provisions of BEEDA, 2011 on the charges of “Misconduct” and further very

fairly advised that----

“Moreover, all the concerned delinquent Officials/ Officials of

the Food Department needs to be taken to task for their failure

to take disciplinary action against Mr. Naeem at the relevant

time.”

Aforesaid opinion/ advice of Law Department is in quite conformity with

the view formed by us with concern that there was a serious allegation of

absence from duty or remaining fugitive from law and justice, whatever it may

be, for considerable long period of more than 03 years for which a show cause

notice was also served on appellant back in the year 2014 under S.3 of the

BEEDA, 2011 followed by publications in the Newspapers but it is beyond

comprehension as to what prevented the authorities concerned to pass a final

Order under S.7 (f)(ii) of the BEEDA, 2011 (supra). We may add here that it

could not happen without connivance of some officials towards whom Law

Department was raising finger and eyebrows to take them to task and rightly so

advised. We have also noted that the advice of Law Department was also twisted

and used as lame excuse that as appellant was not present on duty, his salary

was rightly stopped. Opinion/ advice was either required to be accepted as a

whole or discarded by assigning reasons on record but splitting the same into

piece-meals was wholly unjustified, rather mala fide to save the skin of some

favoured officials.

However, we are not agreement with the advice of Law Department that

a suspended Government servant must be present on duty which would frustrate

the object behind placing him under suspension that is, in case the competent

authority considers and or anticipates that during inquiry, the official may

tamper with the evidence or influence the witnesses or act in a manner to

prejudice the outcome of the inquiry, the competent authority may place such


official under suspension. However, we are of the view that he must ensure his

availability at every point of time, he must not leave the station without prior

approval of the competent Authority and he must attend the office whenever

asked to do so. Whenever called, he must appear before the Inquiry Officer or

Inquiry Committee, as the case may be, constituted to inquire into the veracity of

“misconduct” attributed to him. Object of placing a civil servant under

suspension happened to be under consideration of honourable Supreme Court in

numerous cases including SUO MOTU CASE NO. 18 OF 2010: In the matter

of: (Violation of Public Procurement Rules, 2004) (PLD 2011 SC 927 = 2012

PLC (C.S.) 394) and it was held----

“40. It is to be noted that the object of suspending an officer

from duty during the pendency of an inquiry is that he should

not be allowed to tamper with documentary and oral evidence

likely to be produced in his case. This object, as has been

observed above, can be achieved in a very short time and if the

case is likely to take more time then the easiest way to avoid it is

to transfer him to some other department, so that he may not be

able to tamper with the evidence that may be produced against

him. Undoubtedly under, the Service Rules there is ample power

with the Government to suspend a Government servant both as a

measure of penalty and during the pendency of the departmental

enquiry. But all actions taken under these rules must be based

on the principles of natural justice, otherwise there was no need

to frame them. The power of suspension, therefore, must be

exercised in a reasonable and fair manner. The moment the

effect of the exercise of such power is found to be unfair and

unjust, the Government servant, will be entitled to challenge it,

and Courts of law if satisfied that such orders are based on

arbitrary exercise of power will not hesitate to set them aside as

they will be in clear violation and breach of statutory rules.

[Allauddin v. Chief Commissioner (PLD 1959 Karachi 282)].”

We further find persuasion in this regard from the following provision of

ESTACODE (2015):-

“It has been observed that, on being placed under "suspension",

an officer is generally prohibited from leaving the station. This

is desirable where it is felt that, unless he is confined to a

particular station, he might tamper with the evidence likely to be

produced against him, but such prohibition should not be

enforced if there is no cause for such apprehension. He should

simply be required to inform the authority concerned of his

movement.” 1

At this juncture, it is clarified that “ESTACODE”, being a compendium

of laws and rules etc. issued by the Federal Government, is not directly

applicable to the employees of Provincial Government, but some principles

thereof in certain cases can be borrowed as guide for resolving matters of such

employees, if Provincial Rules/ Instructions are found to be silent about such

matters. Conversely, if Provincial Rules/ Instructions provides for mechanism to

1. “Leaving Station by Government Servants Under Suspension”. Sl.No.27.5 ESTACODE

(2015) PREPARED & PUBLISHED BY PAKISTAN PUBLIC ADMINISTRATION

RESEARCH CENTRE ESTABLISHMENT DIVISION CABINET SECRETARIAT

ISLAMABAD .


resolve such matters and same is found to be in conflict with any provision of the

ESTACODE, later must give way to former i.e. Provincial Rules/ Instructions

would prevail in the case of Provincial employees. However, as no specific Rule

or Instructions are before us to determine as to whether a suspended

Government servant must regularly attend the office or mark attendance, we

leave this question to be considered in some other appropriate case.

14. On the above analysis there seems to be no ambiguity that every

Government servant, placed under suspension, is entitled to full amount of salary

and all other benefits, facilities, provided to him under the contract of service,

before placement under suspension. In the instant case, it is not disputed that

appellant has not been removed, dismissed or terminated from service, rather he

is under continuous suspension. Under such circumstances, we are left with no

option but to hold that, despite the fact that appellant has been placed under

suspension, his service contract was still intact and valid till he attained age of

superannuation (retirement), therefore, stoppage of his salary during such period,

since declared as repugnant to the Injunctions of Islam by the honourable

Supreme Court of Pakistan, was/ is illegal, without lawful authority as well as un-

Islamic.

15. Before parting with the judgment, we want to sound a note of caution that

administrative authorities are generally remiss in discharging its obligations

under the Constitution or the law. Administrative heads must honestly and

faithfully deal with the failings of their subordinates to put a curb on the mischief.

Government servants, found and/or believed to be involving in corrupt practices

and those infested with inefficiency, must not be allowed to go scot-free, as it is

essential to rid the administration of mess and pollution. That cannot be done if

responsible officers are not conversant with law relating to conduct, efficiency

and discipline and while taking action against the delinquent and corrupt officials

by leaving behind no lacunae in the proceedings enabling the delinquent officials

to take undue advantage of such defects in the disciplinary proceedings while

litigating in a court of law which has no alternative but to decide the matters in

accordance with law. It is always arbitrary, haphazard and unreasoned orders and

actions of the administrative authorities which weaken institutions and generate

corruption. Public functionaries are bound to decide cases of their subordinates

after application of mind with cogent reasons within reasonable time that has

unfortunately not been done in the instant case where a case of serious allegations

was turned into a mockery by procrastination of the same for a considerable and

inordinate period of 09 years without passing a final order that could be

conveniently passed and instead appellant was allowed to go scot-free by retiring

him with retrospective effect. Public functionaries are also not supposed to fix a

different standard and criteria for different persons in similar situation without

change of circumstances, as done in the instant case where appellant’s salary has

been withheld and co-accused are enjoying duty as well as salary. Government

servants committing misconduct and involved in corrupt practice should be

nabbed at the very outset and dealt with iron hand at the appropriate time,

otherwise this malady would plague the whole society. Dispensation of justice is

also not the function of courts alone, rather public functionaries for being trustees

of public power equally responsible to act fairly and legally. It must be borne in

mind that in the first instance competent Authority is under legal obligation to

proceed against the delinquent Government servants strictly in accordance with

the mandatory provisions of the BEEDA, 2011 and then it becomes the bounden


duty of the courts/ Tribunal to test the action so taken by the competent Authority

on the touchstone of the Constitution and law. As explained above, in the instant

case, inordinate delay in initiation/ completion of disciplinary action against

appellant, has rendered legitimacy of the proceedings highly doubtful.

16. In an identical case of Muhammad Naeem (S.A. No. 596/2018), we had

held that respondents shall be at liberty to take disciplinary action strictly under

the provisions Balochistan Employees Efficiency and Discipline Act, 2011

irrespective of pendency of NAB References. But in the instant case, respondents

have themselves involved grave complications for initiating or culminating

disciplinary action against appellant as he stood retired w.e.f. 18-05-2018. Before

promulgation of BEEDA, 2011, the legal position, as provided in F.R.54-A, was

that----

“If a Government servant, who has been suspended pending inquiry into

his conduct attains the age of superannuation before the completion of

inquiry, the disciplinary proceedings against him shall abate and such

Government servant shall retire with full pensionary benefits and the

period of suspension shall be treated as period spent on duty.” 2

However, previously BEEDA, 2011 was also made applicable to retired

officials under S.1(3)(d) which previously read as under:-

“(d) the retired employees of Government and Corporation service

provided that proceedings under this Act are initiated against them

during their service or within one year of their retirement.”

Aforesaid Clause (d) was, however, omitted vide Balochistan Employees’

Efficiency and Discipline (Amendment) Act, 2016 [Act No. VI of 2016],

Notification No. PAB-Legis. V(01)/ 2016 dated 06-10-2016. However, in S.4(c)

of the BEEDA, 2011, still incorporated, reads as under:-

“(c) Penalties after retirement---

(i) withholding of pension/ gratuity or any part thereof;

(ii) forfeiture of pension/ gratuity or any part thereof; and

(iii) recovery from pension or any other amount payable to the accused,

of the pecuniary loss caused to Government or the organization in

which he was employed, and if the amount due from any such person

cannot be wholly recovered from the pension or any other amount

payable to him, such amount shall be recovered under the law for

the time being in force.”

It is also pertinent to mention here that in the BEEDA, 2011, S.20 still

stands incorporated which reads as under:-

“20. Proceedings under this Act.

(1) Subject to this Act, all proceedings initiated against the

2. In Fundamental Rules, after rule 54, new Fundamental Rule 54-A inserted by Notification

No. S.R.O.1145(I)/80, published of Gazette of Pakistan, Extraordinary, Part II, 20th

November, 1980, PLD 1981 Central Statutes 213. But see Punjab Employees Efficiency,

Discipline and Accountability Act, 2006 which provides for initiation or continuation of

disciplinary proceedings for certain period after retirement. Similar provision was also

incorporated in Balochistan Employees Efficiency and Discipline Act, 2011 that has been

omitted now.


employees having retired from service, shall be governed

by the provisions of this Act and rules made thereunder:

Provided that the proceedings so initiated against a retired

employee shall be finalized not later than two years

of his retirement.

(2) The competent authority may, by an order in writing, impose

one or more penalties specified in clause (c) of section 4, if

the charge or charges are proved against the retired

employee.”

We have noted with much concern that if BEEDA, 2011 is no more

applicable to the retired employees, how one or more of the aforesaid penalties

can now be imposed on them. We cannot comprehend the wisdom behind

omission/ deletion of S.1(3)(d) from the BEEDA, 2011 which was otherwise a

good law putting a curb on the retired employees so that they could not go scot-

free if they were alleged to be guilty of misconduct but disciplinary proceedings

could not be initiated or finalized before their retirement. There is also a matter of

great concern that if at all, action can still be taken against retired employees

under BEEDA, 2011, then such proceedings shall have to be finalized not later

than two years of his retirement. In the instant case, Secretary Food issued a

Notification No.SOE/1-8(47) 2018/122-25 dated 08-03-2019 in pursuance

whereof appellant stood retired from Government service with retrospective

effect i.e. 18-05-2018. This all happened due to laxity and indifference shown by

the officers concerned who remained entangled in frivolous correspondence,

spreading over years, but negligently or in connivance with appellant did not

timely finalize the disciplinary proceedings which could otherwise be

conveniently done by passing a final order under S.7 (f)(ii) of the BEEDA, 2011

on the established allegation of wilful absence from duty for about 03 years. At

the cost of repetition, said provision is reproduced under:-

(ii) where charge of un-authorized absence from duty for a

period of more than one year is proved against the accused,

the penalty of compulsory retirement or removal or dismissal

from service shall be imposed upon the accused.

Now the question arises as to whether any action against appellant can be

taken under any provision of law so that he may not go scot-free. In this regard,

guidance can be sought from Balochistan Civil Service Pension Rules, 1989.

17. In view of glaring laxity and indifference shown in proceeding against

appellant, respondents are directed to hold an inquiry in terms of advice/ opinion

tendered by the Law Department, in an identical case of Mr. M. Naeem

Foodgrain Supervisor, vide letter No.Opn:Law/1-14(2007-11) dated 09-10-2018

to apportion the responsibility of the officials concerned for inordinate

procrastination of the instant case of disciplinary proceedings and allowing the

appellant to go scot-free. If any departmental instructions are available to deal

with such like situations, same may be applied, otherwise guidance may be


sought from the analogy of S.No.32.9, PART-II, CHAPTER-8, of the

ESTACODE (2015)3, reproduced under:-

2. (d) In case the reinstatement of the Government servant has

been ordered by the Court on account of the relevant

administrative action having been found to be defective, the

Committee should also give their findings;

(i) as to which officers were responsible for that defectiveness of

administrative action; and

(ii) as to whether any, and what part, of the amount payable to

the Government servant by way of net salary for the period

of his absence from duty, might justifiably be recovered from

such officers. The recovery from such officers will, of course,

follow departmental proceedings under the Government

Servants (Efficiency and Discipline) Rules.”4

Guidance may also be sought from a judgment rendered by honourable

Supreme Court of Pakistan in the case of Syed Yaqoob Shah v. XEN PESCO

(2002 SCMR 1120 = PLD 2002 SC 667) wherein it was held as under:-

“……………. Executive Engineer and Sub-Divisional Officer

had terminated the services of petitioner on the basis of bogus

proceedings as there was a note on record written by Incharge

Army Team to the effect “terminate him from service”.

Departmental record did not reveal on basis of which material

said order had been passed and what was the authority of Army

Officer to direct termination of petitioner. Sub-Divisional

Officer and Executive Engineer instead of complying with said

unlawful order should have followed the prescribed procedure

to punish petitioner, if he was found guilty of the offence of

removing meter. Supreme Court converted the petition into

appeal and accepted the same; set aside the judgment of Service

Tribunal as well as order of removal of petitioner from service;

reinstated the petitioner into service will all back benefits to be

payable by Executive Engineer and Sub-Divisional Officer

personally at the ratio of 60% and 40% respectively as on

account of their conduct and non-following the procedure laid

down under Pakistan Water and Power Development Authority

(Efficiency and Discipline) Rules, 1978, petitioner had suffered

and for their negligence in performing duties, public exchequer

could not be burdened by making payment of back benefits.

Supreme Court directed WAPDA to conduct disciplinary

proceedings against Executive Engineer and Sub-Divisional

Officer for not performing their duties accordingly and the

WAPDA would be at liberty to initiate fresh departmental

disciplinary proceedings against appellant, if so advised.”

18. As a sequel of the above discussion, instant appeal is allowed with

declaration that every Government servant, placed under suspension, is entitled to

3. PREPARED & PUBLISHED BY PAKISTAN PUBLIC ADMINISTRATION

RESEARCH CENTRE ESTABLISHMENT DIVISION CABINET SECRETARIAT

ISLAMABAD .

4. O.M. No.781-R4/73-F.3(4)-R.1/73, dated the 10th July, 1973 [Finance Division Regulation

Wing].


full amount of salary and all other benefits, facilities, provided to him under the

contract of service, before placement under suspension.

There shall, however, be no order as to costs.

For removal of any doubt or difficulty, it is also made clear that this

judgment shall not amount to a clean chit to appellant. Respondents are directed

to take action against appellant and/or other officials, responsible for showing

laxity or connivance in not timely processing and finalizing the disciplinary

proceedings and facilitating appellant in going scot-free by attaining age of

superannuation, as discussed hereinabove.

Office is directed to send copy of this judgment to the respondents as well

as Secretary, Law Department and Chief Secretary, Government of Balochistan.

Announced in open court on 16th

December, 2020.

BEFORE THE BALOCHISTAN SERVICE TRIBUNAL, QUETTA

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