2008 PLP (C (PLC(CS))

JUSTICE (RETD.) RUSTAM ALI MALIK (CHAIRMAN).

The appellant has filed this appeal on the plea that he had joined the University of Arid Agriculture, Rawalpindi as Junior Clerk in May, 1997. Disciplinary proceedings under the provisions of Punjab Removal from Service (Special Powers) Ordinance, 2000 were initiated against him and two other co-accused namely Qaisar Rafique, Junior Clerk, and Khalil Ahmad, Lab. Attendant vide order, dated 7-4-2004 on the allegation of negligence and misconduct for allegedly tampering with the record for the benefit of one Farrukh Amin, student of BBA (Hons.). Dr. M. Munir was appointed as Inquiry Officer by the competent authority vide order, dated 17-4-2004 to scrutinize the conduct of aforesaid official. He issued a sort of memo. of allegations, dated 11-5-2004 and to which he submitted a reply before the Inquiry Officer on 19-5-2004. The appellant has averred that the inquiry was conducted in a slipshod manner and no charge-sheet or a proper statement of allegations was ever issued nor any witness was examined in his presence. The statements of a number of witnesses and their co-accused were taken in writing by the Inquiry Officer and the appellant was not allowed to produce any evidence in rebuttal. The Inquiry Officer submitted his report on 21-6-2004. However, major penalty of removal from service was imposed on him vide order, dated 30-7-2004. He filed separate appeals/representations before the Chancellor and Vice-Chancellor of the University of Arid Agriculture, Rawalpindi who was also Chairman of the Syndicate. He also sent a reminder to the Chancellor of University for disposal of his representation. A letter, dated 27-11-2004 was,however, issued to him by the Deputy Registrar of the University advising him to file appeal/ representation before the competent forum which in his case was syndicate. However, as his old and wrong address was mentioned on the said letter, it did not reach him. After waiting for a long time, he filed Writ Petition No.2556 of 2005, dated 15-9-2005 before the Honourable High Court at its Rawalpindi Bench and during the hearing of the said writ petition, the final rejection order, dated 27-9-2005 was conveyed to him on 10-11-2005 and he thus, withdrew the writ petition immediately and filed the instant appeal before this Tribunal. He has further prayed that the impugned orders, dated 30-7-2004 and 27-9-2005 be set aside and he may be reinstated in service with all back-benefits.

2. The learned counsel for the appellant has argued that the representation filed by the appellant had been wrongly rejected by the authority as time-barred. She has referred to the portion of the rejection order which was conveyed to him by the Registrar of the University and which reads as below:-- "In accordance with advice of Governor's Secretariat, you were required to submit your appeal within one month from the date of directive of governor of Punjab, dated 11-11-2004. You have however, submitted your appeal on 12-9-2005, hence your appeal cannot be considered and placed before the Syndicate as it is time-barred."

3. She has submitted that in fact the appellant had filed departmental appeal/representation against the impugned order within 15 days on 13-8-2004 before respondent No.1 i.e. Chancellor and respondent No.2 i.e. Vice-Chancellor. She has argued that in case the appeal was presented before a wrong forum, it was the duty of the said forum/officer to forward it to the competent authority and that this Tribunal had filed in a number of cases that where any appeal or representation is addressed to a wrong officer in the hierarchy, it is the duty of the said officer to forward it to the competent authority for disposal. However, respondent No.3 who was not the competent authority had once again issued the order, dated 27-9-2004 which was never communicated to him by the Department and he had received a copy of the said order through the Honourable Lahore High Court, Rawalpindi Bench on 10-11-2005. He has argued that the appellant had the option to file appeal before this Tribunal immediately after the expiry of 60 days from the date of filing the departmental appeal or he could have waited for the decision of the same and could have filed appeal within next 30 days. She has argued that the action against him was based on surmises and conjectures and he had been thrown out of service merely on the basis of presumptions. She has further argued that the inquiry was conducted in a slipshod and defective manner and the evidence was not recorded in the presence of the appellant nor was he allowed to cross-examine the witnesses. She has pointed out that at the end of the inquiry 'report, the Inquiry Officer had recorded the following observations:-- "It was not possible for me to pin point the person who changed the award lists/answer sheets. Most probably Mr. Rashid might have done it. It needs more investigation. I am sorry, I am unable to do that." She has argued that on the basis of such-like findings, the appellant and his family could not be deprived of their source of livelihood. In support of her arguments, the learned counsel for the appellant has placed reliance on 2006 SCMR 86, PLD 1987 SC 256, 2002 PLC (C.S.) 1113, 2002 PLC (C.S.) 474 and 2003 SCMR 826 and has argued that the appeal filed by the appellant is within time.

4. On the other hand, it has been asserted by the learned counsel for the respondents that the appeal is hopelessly time-barred as the impugned order regarding removal from service of the appellant was passed on 30-7-2004 and he had been informed about the fate of his representation vide letter, dated 27-9-2005 in response to his application, dated 12-9-2005. It has been pointed out that the departmental appeal/representation of the appellant was also barred by time. The respondents have taken the plea that the appellant was appointed as junior clerk on 16-6-1997 and his services were regularized vide order, dated 18-7-2000. His service record was not to the entire satisfaction of his superior officers as his annual increment was stopped for a period of two years with effect from 1-12-2002 to 1-12-2003 on the recommendations of the Inquiry Officer regarding his involvement into the financial indiscipline during admission process of 2002 at Centre for Information Technology and he was transferred from the said Centre. The respondents have also taken the plea that on the receipt of the preliminary inquiry report from the Controller of Examinations, the appellant was suspended along with two others vide order, dated 7-4-2004 and Dr. Muhammad Munir, Professor, Department of Plant Breeding and Genetics, University of Arid Agriculture, Rawalpindi was appointed as Inquiry Officer and who conducted the inquiry in accordance with the prescribed procedure and the appellant was afforded full opportunity to defend himself. The Inquiry Officer in his report recommended the imposition of major penalty and the said report was placed before the competent authority for consideration and who issued a show-cause notice to the appellant. He was also provided an opportunity to submit his written defence, if any, within seven days. The competent authority nominated the Registrar, University of Arid Agriculture, Rawalpindi for personal hearing. The copy of the inquiry report was also provided to the appellant for preparation of his written defence and he was asked to appear before the Registrar on 19-7-2004 at 10-00 a.m. for personal hearing but he neither appeared in person before him nor submitted his written defence. Hence the competent authority approved the recommendation of the Inquiry Officer and decided to remove him from service with immediate effect. 5 The respondents have also taken the plea that the appellant was required to submit an appeal against the decision of the Vice-Chancellor before the Syndicate within 30 days from the date of his removal order i.e. 30-7-2004, but he preferred to submit an appeal before the Governor/Chancellor which was received by the respondent's university for comments. The comments were according forwarded to the Chancellor's Secretariat and the Chancellor's office directed the office of University of Arid Agriculture, Rawalpindi to advise the appellant to file an appeal/representation before the relevant authority which in his case is syndicate. The appellant failed to 'comply with the directions issued by the Chancellor's Secretariat and failed to avail the chance afforded to him in the said letter. He again submitted an appeal, dated 12-9-2005 to the Vice-Chancellor at a belated stage. The said appeal could not be considered and placed before the Syndicate as it was time-barred. The respondents have taken the plea that in fact the result of representation of the appellant had been duly communicated to him and his denial in that respect was only an effort to escape from the clutches of the law of limitation.

6. I have carefully considered the arguments advanced from both sides and have also perused the record. It is correct that the appellant had filed the appeal before a wrong forum i.e. the Chancellor instead of having recourse to the Syndicate of the University. The plea of the appellant that the appeal filed by him should have been forwarded by the Chancellor's office to the Syndicate is not correct. He should have adopted the lawful course for filing the appeal before the Syndicate of the University. However, it would be inappropriate to throw out the appeal merely on the ground that it had been filed before a wrong forum. I feel that as the appellant had filed the departmental appeal within time, although before a wrong forum, it can be directed even now to place his departmental appeal before the proper forum i.e. Syndicate of the University of Arid Agriculture, Rawalpindi. As such I consider it appropriate to direct respondent No.3 i.e. Registrar, University of Arid Agriculture, Rawalpindi to place the departmental appeal filed by the appellant before the Syndicate of the University for appropriate decision. It can be pointed out here that the order, dated 27-9-2005 was not passed by the departmental appellate authority i.e. Syndicate while it was the Syndicate, which was competent to dispose of the departmental appeal/representation of the appellant even on the ground of limitation.

7. In view: of what has been' stated above, the appeal is accepted, the impugned order, dated 27-9-2005 whereby the departmental appeal of the appellant had been rejected as time-barred is set aside and a direction is issued to respondent No.3 to place the representation/departmental appeal of the appellant before the Syndicate, University of Arid Agriculture, Rawalpindi for its disposal in accordance with law. H.B.T./48/PST Appeal accepted.