2001 PLP 1318 (SCMR)

RASHID AZIZ KHAN, J.‑‑‑Facts in brief, leading to the filing of this petition, are that respondent F.G. Alvi was an employee of the petitioner‑Corporation as Zonal Manager, Nawabshah. On account of certain allegations, his services were dispensed with on 10‑3‑1993. Respondent filed a suit challenging order of the authorities which remained pending for some time, thereafter, on 28‑8‑1997, the learned Civil Judge passed an order that after the introduction of section 2‑A in Civil Service Tribunals Act, 1973, the suit had abated. Respondent, thereafter, filed a departmental appeal and ultimately approached the Federal Service Tribunal which vide, its judgment dated 19‑7‑2000 allowed his appeal and reinstated him in service. In the instant case, judgment of the Service Tribunal has been impugned.

2. Learned counsel for the petitioner contended that the respondent had filed an appeal under section 4(1) of the Service Tribunals Act, 1973, which reads as under:‑‑ "Any civil servant aggrieved by any order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him. (or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal): Provided that‑‑ (a) where an appeal, review or representation to a departmental authority is provided under the Civil Servants Act, 1973, or any rules against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was preferred; (b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade;" whereas, appeal should have been filed under section 6 of the Service Tribunals Act, 1973, which reads as under:‑‑ Abatement of suits and other proceedings.‑‑‑All suits, appeals or applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the commencement of this Act shall abate forthwith: Provided that any party to such a suit, appeal or application mar, within ninety days of the establishment of the appropriate Tribunal, prefer an appeal to it in .respect of any such matter which is in issue in such suit, appeal or application. According to him there was no statutory requirement for filing a departmental appeal in a case where the suit had abated. On account of introduction of section 2‑A, right of filing of appeal before the Service Tribunal was available but was filed with inordinate delay. Learned trial Judge while condoning the delay of 9 months mainly relied upon the period consumed by the respondent in filing of departmental appeal which was not required nor delay could be condoned on, such ground, therefore, reasons advanced by the Tribunal for condoning the delay are not in accordance with law. ??????????? Points raised by the learned counsel for the petitioner need examination, therefore; we grant leave to appeal to consider the contention, noted above. Meanwhile, operation of the impugned judgment is stayed. Q.M.H./M.A.K./C‑29/S ???????????????????????????????????????????? Leave granted.