2010 SCMR 1173 (PLP)

JAVED IQBAL, J.

This petition for leave to appeal is directed under Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973 against the judgment dated 28-2-2001 passed by learned Federal Service Tribunal, Lahore whereby the appeal preferred on behalf of respondents has been accepted.

2. The facts of the case have been mentioned elaborately in the judgment impugned and the petition in hand hence reproduction whereof would be of no use.

3. It is mainly contended by the learned Advocate Supreme Court on behalf of petitioner/Bank that the appeal of respondent should have not been accepted as it was badly barred by time which escaped the notice of the learned Federal Service Tribunal causing serious prejudice against the petitioners. It is next contended that appeal should have been dismissed on the sole ground of limitation which could not be examined by the learned Service Tribunal in its true perspective resulting in serious miscarriage of justice. It is also pointed out that after initiation of disciplinary action a full-fledged inquiry was conducted and the charges levelled against the respondent No.1 were substantiated by adducing cogent and concrete evidence and hence the question of fresh inquiry as directed by Service Tribunal is without any lawful justification.

4. We have carefully examined the contentions as agitated on behalf of the petitioner in the light of relevant provisions of law and record of the case. We have minutely perused the judgment impugned. After having gone through the entire record we are of the view that all the points including question of limitation have been dilated upon and decided in a comprehensive manner in the judgment impugned and relevant portion whereof is reproduced hereinbelow for ready reference:

"(5) Arguments heard and the record perused. Although the respondent-Bank has stressed that the inquiry was held and consequent action taken strictly in accordance with law but no document has been placed to substantiate and to rebut the allegations and contentions of the appellant to the effect that the inquiry was held strictly in accordance with law. The appellant has however placed two documents and two inquiry reports dated 19-5-1981 and 1-11-1981 indicating only some procedural lapses but there is no suggestion for punishment at all. The relevant paras of the inquiry report dated 19-5-1981 is reproduced:

"From the perusal of what has been stated above it is said beyond doubt that the Branch Manager, Cashier Incharge and Mr. Shamoon Khan, Assistant are irresponsible, carefree and negligent in the performance of their duties which can place the bank in awkward position at any stage. However, it is gathered from the conversation and cross question that there was some dispute of Rs.2000 of the depositor with Mr. Shamoon Khan, Assistant of the branch (who had good relations with each other) which was later on settled with the intervention of the respectables of the Town. The complainant has already given in writing duly witnessed by the Chairman of the Town that the issue stands settled. He has again given me the enclosed statement wherein he has stated that he lodged the complaint by mistake and now after checking the record he has come to the conclusion that the complaint lodged by him was wrong and therefore may be filed." The observation of the Inquiry Officer in the second inquiry report dated 1-11-1981 regarding the appellant is also reproduced for better appreciation of the case: "Mr. Shamoon Khan, Senior Assistant was in need of funds so he tendered some ornaments to the Branch Cashier for the purpose. He stated his occupation as Zamindar instead of "Bank Service". Thus he tried to conceal his identity. He might be knowing that if he will declare his occupation as "Bank's service" the loan will not be granted to him without the permission of the competent authority. Thus he availed loan at public rates." From the perusal of the documents only placed by the appellant it appears that quantum of punishment is of the highest degree of removing the appellant from service. The respondents failed to substantiate their contention by placing any document but on the other side the appellant has been able to make out a case that the inquiry was not held in accordance with law as submitted by him above. Keeping in view the above discussion we hold that imposition of penalty on the basis of defective inquiry was not justified. The appeal is hereby accepted, the impugned order dated 23-1-1982 is hereby set aside and the appellant is reinstated in service. This order will be without prejudice to the discretion of the respondent to initiate inquiry proceedings de novo within a period of three months and the question of back-benefits shall depend upon the result of de novo inquiry".

5. A careful perusal of the operative portion of the judgment impugned as reproduced hereinabove would indicate that the question of limitation has been dilated upon and decided. It is well established by now that sufficiency of cause of condonation of delay being question of fact is within the exclusive jurisdiction of Tribunal Ali Hasan Rizvi v. Islamic Republic of Pakistan 1986 SCMR 1086, Hussain Bibi v. Mubarak Hussain 1976 SCMR 262, Yousaf Hussain Siddiqui v. Additional Settlement and Rehabilitation Commissioner, Peshawar and 5 others 1976 SCMR

268. Even otherwise once the discretion is exercised qua the question of limitation by the learned Service Tribunal it is not usually interfered with by this Court. In this regard reference can be made to cases titled WAPDA v. Abdur Rashid Dar 1990 SCMR 1513, Sher Bahadur v. Government of N.-W.F.P. 1990 SCMR 1519, Zahida v. Deputy Director 1990 SCMR 1504.

6. It may not be out of place to mention here that leave to appeal of this Court is only competent where a case involves a substantial question of law and public importance. Muhammad Iqbal v. Secretary to Government of Punjab 1986 SCMR 1, Karamat Hussain v. Province of the Punjab 1982 SCMR 897, Razia Sultana v. Government of Punjab 1981 SCMR 715, M. Yamin Qureshi v. Islamic Republic of Pakistan PLD 1980 SC 22, Irtiqa Rasool Hashmi v. Water and Power Development Authority and another 1980 SCMR 722, Dilbar Hussain v. Province of Punjab 1980 SCMR 148, Yousaf Hussain Siddiqi v. Additional Settlement and Rehabilitation Commissioner 1976 SCMR 268, Muhammad Azhar v. Service Tribunal, Islamabad 1976 SCMR 262, M.A. Majid v. Government of Pakistan 1976 SCMR

311. Where no question of law or public importance is involved leave to appeal may not be granted. Director Food v. Rashid Ahmad 1990 SCMR 1446, Muhammad Manzoor Ahmad v. Commissioner Multan Division 1990 SCMR 560, Government of Punjab v. Khalid Hussain Gill 1989 SCMR 748, Abdul Razaq v. Province of Punjab 1980 SCMR 876, Muhammad Yaqub Sheikh v. Government of the Punjab 1987 SCMR 1354. The learned Advocate Supreme Court was asked pointedly that what is the question of law or public importance, but no satisfactory answer could be given. Let we mention here at this juncture that inquiry was not got conducted in accordance with relevant provisions of law and moreso it was found in flagrant violation of the principles enunciated in cases titled Shakeel Ahmad v. Commandant 502 Central Workshop E.M.E. 1998 SCMR 1970, Basharat Ali v. Director, Excise and Taxation 1997 SCMR 1543, Land Reforms Commission, Punjab, Lahore and another v. Mst. Azra Parveen and 2 others 1995 SCMR 890, Jan Muhammad v. General Manager, Karachi 1993 SCMR 1440. The Service Tribunal has given a fair opportunity to the petitioner to initiate inquiry proceedings de novo within a period of three months but nothing could be done for the reasons best known to it.

7. The upshot of the above discussion is that the judgment impugned being free from any illegality or infirmity does not call for interference. The petition being meritless is dismissed and leave refused. M.H./N-7/SC Petition dismissed.