2008 PLP (C (PLC(CS))

MOAZZAM HAYAT (MEMBER).

Appellant Arshad Munir Chughtai was a Deputy Director, Power Planning, in WAPDA. A show-cause notice was issued to him on 24-10-2002 under section 5(4) of Removal from Service (Special Powers) Ordinance, 2000. A statement of allegation was annexed with the show-cause notice. Following allegation was levelled against him:

"He proceed on earned leave w.e.f. 9-5-2002 to 5-8-2002 (89 days) vide G.M. (Planning) Power WAPDA House, Lahore, office order No.GMP/Power/Admn/EP-575/2698-2701 dated 8-5-2002 and was due to report for duty on 6-8-2002 but failed to report back for duty."

2. The proceedings initiated against him culminated into his removal from service vide order dated 25-1-2003. He made a representation against the said order under Section (9)(1) of Removal from Service (Special Powers) Ordinance, 2000. No action was taken on this representation by the respondents. The appellant was, therefore, constrained to file the present appeal wherein he had prayed that the impugned order dated 25-1-2003 be set aside and he be reinstated into service with back-benefits.

3. We have heard the learned counsel for the appellant and have also perused the record.

4. Under section 9(1) of Removal from Service (Special Powers) Ordinance, 2000 the appellant was required to file a representation/appeal against the impugned order of removal within 15 days. He did not file his representation/appeal within the statutory period. The representation/departmental appeal filed by him on 20-2-2003 was time-barred. No application was filed for condoning the delay. The present appeal was filed on 30-12-2003. It too was time-barred. No application for condonation of delay has been filed. The learned counsel for the appellant has vehemently argued that under ESTACODE the appellant could file a departmental appeal within six months. He has also argued that the impugned order was void ab initio and for challenging that order there was no fixed period of limitation for filing a departmental appeal and appeal in this Tribunal. We find no force in the arguments advanced by the learned counsel. Such provisions of ESTACODE can be adopted which are consistent with the provisions of Civil Servants Act, 1973 and Service Tribunals Act, 1973 and Removal from Service (Special Powers) Ordinance, 2000. The provisions of ESTACODE which are not consistent with any law in force cannot be relied upon. Such provisions shall be rendered ineffective in the presence of a clear law. Under the Service Tribunals Act, 1973 and the Removal from Service (Special Powers) Ordinance, 2000 time limit has been fixed for filing a departmental appeal and appeal in this Tribunal. The ESTACODE cannot overrule or supersede the provisions of the aforementioned law. The time for filing a departmental appeal or an appeal in this Tribunal cannot be extended on the basis of ESTACODE. The Removal from Service (Special Powers) Ordinance, 2000 clearly provides a period of 15 days for filing a departmental appeal. This provision of law is overriding and has to prevail over the ESTACODE. The argument advanced by the learned counsel is, therefore, repelled. On the same principle the argument of the learned counsel that the appeal in this Tribunal is not time-barred is also repelled.

5. The learned counsel for the appellant has submitted that since the impugned order is void, therefore, the appeal is not time-barred as for challenging a void order there is no fixed period of limitation. This argument is not acceptable to us. There is a gulf of difference between c an order which is illegal and an order which is void ab initio. Every illegal order is not void. A void order is that order which is passed by an authority not competent to pass it. On the other hand an illegal order is that order which is not passed in accordance with law. In the instant case a show-cause notice was issued to the appellant under the provisions of Removal from Service (Special Powers) Ordinance, 2000 by a competent Authority. After observing the legal formalities the impugned order was passed by the competent Authority. We are unable to scribe to this argument of the learned counsel for the appellant that the impugned order was void as it had been passed by an incompetent authority. On the contrary this order was passed by the competent Authority in accordance with law. It was, therefore, not a void order. The contention of the appellant that for challenging a void order there is no fixed period of limitation cannot be accepted in the circumstances.

6. No application for condonation of delay has been filed. The appellant has not made a formal request through an application for condoning the delay in filing the present appeal. When no application is filed for that purpose the question of condoning the delay cannot even be considered.

7. For the above reasons we hold that the appeal is incompetent and time-barred. It is dismissed in limine.

8. Parties be informed. H.B.T./42/FST Appeal dismissed.