1994 PLP (C (PLC(CS))

S.M. ISHAQ (MEMBER).‑‑The appellant is aggrieved by the order dated 29‑3‑1993 whereby the salary for period of his termination from 25‑3‑1985 to 4‑8‑1992 was refused to him. 2. The facts giving rise to this appeal, in brief, are that the appellant while serving as Attendant in the Wapda was arrested in a case of murder and attempted murder under sections 302 and 307 PPC on 23‑5‑1985 and was tried by the Special Military Court. On conviction he was sentenced to death. 3. The appellant filed a constitutional petition in the High Court of Sindh challenging his conviction and sentence. The Hon'ble High Court quashed the conviction as well as the sentence on 14‑1‑1992 and reasons for the quashment were given later on in a detailed order dated 8‑4‑1992. However, on release from the prison the appellant reported for duty to the Resident Engineer Wapda, Sukkur, and was taken into service with effect from 25‑5‑1985 vide Office Order dated 4‑8‑1992. The competent authority while passing the order of reinstatement on 4‑8‑1992 made the following observations:‑ "He is entitled for full salary for the period under reference, but this period is adjustable against leave balance of the official. If the leave balance is less than the period be adjusted against future leave to be earned by the official." 4. The appellant by way of this appeal has prayed for a direction to the respondents for payment of full salary from 25‑3‑1985 to 4‑8‑1992 instead of treating the period of his imprisonment as on leave. 5. A preliminary objection has been raised on behalf of the Respondent Wapda that the appeal is not competent as no departmental appeal was filed by the appellant as required by proviso (a) to section 4(1) of the Service Tribunals Act, 1973. The learned counsel for the appellant has not denied that a formal appeal against‑ the impugned order was not made by the appellant. However, it is contended that the appellant on receipt of the impugned order served a notice on the Respondent‑Wapda under section 2S‑A of the Industrial Relation Ordinance, 1969, on 23‑3‑1993 and that this grievance petition amply satisfies the provision regarding filing of a departmental appeal to the appellate authority before approaching the Service Tribunal. ‑ The precise question whether a grievance notice under Section 25‑A is a proper substitute for departmental appeal as envisaged in section 4(1)(a) of the Service Tribunals Act, 1973, was considered by this Tribunal in Appeals Nos. 206(R) and 208(R) of 1984 and the Tribunal made the following observations:‑ "There are some material difference in the provisions of Rule 11 of the said Rules and section 25‑A of the said Ordinance. Grievance can be brought under section 25‑A of the Ordinance to the employer. Appeal under Rule 11 of the Rules lies to the departmental authority. Time limit for grievance notice is three months, where for appeal it is two months. The appeal is to be submitted through proper channel by the aggrieved employee. Grievance can be brought to the notice of the employer either by himself or through his Shop Steward or Collective Bargaining Agent. In the case of a grievance notice, the employer is required to communicate his decision within 7 days. In the case of appeal, no such period is provided for. However , under section 4(1)(a) of the Service Tribunals Act (LXX of 1973), the aggrieved civil servant in the absence of reply to the departmental appeal, can come to the Tribunal only after exhausting the waiting period of ninety days. In the scheme of the Efficiency and Discipline Rules, everything is to be done by the aggrieved civil servant himself. Section 25‑A of the said Ordinance on the other hand, gives vast power to the Shop Steward and Collective Bargaining Agent to bring the grievance. Again in the case of employer rejecting the claim, the employee or the Bargaining Agent is given two months to approach the Labour Court. A civil servant, however, affected by the Efficiency and Discipline Rules is bound to come to the Tribunal within 30 days of the communication of the decision to him." This decision of the Tribunal was taken in appeal before the Hon'ble Supreme Court and it after discussing the legal issues in detail in the case reported as 1987 SCMR 1936, confirmed the views of this Tribunal that grievance notice under Section 25‑A ibid is not a proper substitute for departmental appeal and or that if no appeal is filed departmentally as required by law, the appeal before the Tribunal would not be competent. By following these decisions there is no choice left for us except to dismiss this appeal. 6. On merits the case appears to be arguable but since the appeal is being dismissed on technical grounds the Respondent Wapda may consider the case of the appellant in accordance with law, after the representation is made by the appellant. 7. No order as to costs. H.B.T./893/Sr.F. Appeal dismissed.