2006 PLP 453 (SCMR)

HAMID ALI MIRZA, J.

This petition for leave to appeal is directed against the judgment, dated 6-10-2003 in Appeal No.213 of 2003 passed by the Sindh Service Tribunal, whereby said appeal filed by the respondent, Syed Ashfaq Hussain Shah was allowed and the impugned orders, dated 18-11-2002 and 30-10-2003 were set aside and he was reinstated in service.

2. Facts of the case need not be reiterated as the same have been stated in the memo. of petition and the impugned judgment.

3. We have heard learned counsel for the petitioners and the respondent in person and perused the record.

4. The learned counsel for the petitioners submitted that the departmental appeal filed by the respondent was time-barred, therefore, his appeal before Service Tribunal was also incompetent and time-barred but the Tribunal erroneously held otherwise and secondly that learned Tribunal erred in holding that the respondent could in the circumstances revoke his option of proceeding on L.P.R. He has placed reliance on Province of Punjab through the Deputy Director Food, Rawalpindi Region v. Muhammad Iqbal 1984 SCMR 334 and Secretary to Government of Punjab, Food and Cooperative Department v. Shamoun Bahadur 1998 SCMR 1536. In support of his second plea he placed reliance on The Chairman P.I.A.C. and others v. Nasim Malik PLD 1990 SC 951 and State Bank of Pakistan v. Khyber Zaman and others 2004 SCMR 1426 at 1436. He submitted that the case-law Pakistan Automobile Corporation Limited through Chairman v. Mansoor-ul-Haque and 2 others 2004 SCMR 1308 referred in the judgment and relied upon by the Tribunal is distinguishable, therefore, inapt to the facts of the present case.

5. The respondent present in person has stated that the impugned order passed by the Tribunal is just, fair and legal and calls for no interference. He further submitted that the department has not held that his appeal before the Department was time-barred, therefore, his appeal before the Service Tribunal was not time-barred as he has preferred the appeal before the Syndicate which was rejected on merits and not being time-barred. He further submitted that the petitioner had treated him harshly as water supply, gas and electricity connections have been disconnected and he was told to vacate the house and his daughter was not given admission in the college though he was employee of the institution whereas other employees children were accommodated in the college. He submitted that the petition filed is liable to be dismissed.

6. We do find substance and merit in the contentions raised by the petitioners that the Service Tribunal could have taken note of the fact that the appeal before the departmental authority was time-barred, therefore, his appeal before the Tribunal was incompetent and time-barred. Admittedly the respondent proceeded on L.P.R. on 16-12-2002 and he preferred appeal before the Syndicate on 31-7-2003 which on the face of record was time-barred but the mere fact that the department did not notice the said fact would not make his service appeal within time. Consequently, the appeal before the Service Tribunal was time-barred and incompetent in view of the law laid down by this Court in the case of The Chairman, P.I.A.C. and others v. Nasim Malik PLD 1990 SC 951 and State Bank of Pakistan v. Khyber Zaman and others 2004 SCMR 1426.

7. With regard to the contention that the option exercised by the respondent could be revoked has also no merit considering the law laid down by this Court in the cases of Province of Punjab through the Deputy Director Food, Rawalpindi Region v. Muhammad Iqbal 1984 SCMR 334 and Secretary to Government of Punjab, Food and Cooperative Department v. Shamoun Bahadur 1998 SCMR 1536 wherein it has been held by this Court that in case the civil servant after enjoying substantial part of leave preparatory to retirement revokes it after its acceptance when the offer was acted upon by both parties the same cannot be permitted to be revoked. In the circumstances the findings of the Tribunal cannot be sustained in law. We find substance in the contention of the learned counsel for the petitioners.

8. Consequently, this petition is converted into appeal and the impugned order is set aside. The appeal is allowed maintaining the orders, dated 18-11-2002 and 30-10-2003 passed by the petitioners. No order as to costs. M.H./N-65/SC??????????????????????????????????????????????????????????????????????????????????? Appeal allowed.