2011 PLC (C (PLP)

RAHMAT HUSSAIN JAFFERI, J.

The present petition is directed against the order dated 4-6-2009 passed by the Federal Service Tribunal, Karachi by which the appeal filed by the petitioner was dismissed by maintaining the order of Railway authorities dated 25-4-2002 under which major penalty of dismissal from service was imposed upon the petitioner. The operative part of the order reads as under.

"... Secondly, there is no provision for repeated appeals/mercy appeals under the RSO, 2000. In our opinion, the punishment order was passed on 25-4-2002 and the service appeal before the Tribunal should have been filed within 30 days after waiting for the reply for the mandatory period of 60 days i.e. within 90 days in all. It also needs to be noted that the appellant rejection order is not in response to any of the appeals/representations submitted by the appellant. But it is in response to an internal correspondence between the General Manager and the office of the Chairman and therefore, can hardly be described as a fins? rejection order. In our opinion the appellant should not have waited for indefinite period for the reply from the appellant authority. In holding this opinion we placed reliance in the ruling appearing in the Tanveer Hussain v. Divisional Superintendent, Railways PLD 2006 SC 249."

2. The learned counsel for the petitioner, in response to the above observation of the Tribunal has stated that the petitioner had filed the appeal on 7-5-2002 by registered post acknowledgement due, within the statutory period of 15 days (para.5 of the petition) and that the result of the appeal was communicated to him vide letter dated 9-9-2004 therefore, the observation of the Tribunal is incorrect. Conversely, the learned counsel for the respondent has stated that the petitioner preferred appeal on 16-7-2002, after the period of limitation which was dismissed on 9-10-2003 and was communicated to the petitioner vide letter dated 10-10-2003. He has produced the letter with signature of the petitioner as a token of receipt of said letter also showing the date of filing the appeal as 16-7-2002. He has also produced its covering letter addressed to Divisional Superintendent Pakistan Railway Sukkur dated 29-9-2003. He has further contended that petitioners' departmental appeal and appeal filed before the Tribunal were time-barred therefore, the impugned judgment does not require any interference.

3. From the arguments and letters produced by the respondents, it is clear that these documents were not before the Tribunal. The petitioner has also not produced the postal or acknowledgement due receipt proving that the appeal was filed by registered post acknowledgment due receipt. All these documents are essential for the just decision of the case to resolve the controversy between the parties but the same were not produced before the Tribunal, therefore, we feel it necessary that the parties should produce the above documents or any other relevant documents touchingly the merits of the case so that the Tribunal should give its proper decision.

4. Consequently, we convert this petition into appeal and remand the case to the Federal Service Tribunal to decide the question involved in the matter afresh on the documents and material produced by the parties, within a period of three months from the date of receipt of the order. Resultantly the impugned order is set aside. The appeal is allowed in the above terms. H.B.T./M-81/SC Case remanded.