1976 PLP [C (PLC(CS))

S. BARKAT AHMAD (MEMBER).‑The respondent, Shabbir Hussain, was appointed as Lorry Driver on 14‑1‑1969 by the Divisional Engineer, Telegraphs, Sargodha. The relevant appointment orders indicate that "the appointment was in a temporary capacity as stop gap arrangement and likely to be terminated at any time without notice and assigning any reasons." 2. The appellant later discovered that the work of the respondent was net satisfactory. His serviced could be terminated at any time, without notice, but this was not done, and instead the employer served him with a charge -sheet on 12‑3‑70, accusing the respondent of inefficiency, corruption and misconduct. This was followed by a show‑cause notice dated 26‑3‑70. In case of charge‑sheet, he was asked to submit a written defence within four days, while an explanation to the show‑case notice was asked for within forty‑eight hours. Without conducting the regular enquiry following the procedure, the respondent, thereafter filed a Civil Suit in the Civil Court at Sargodha, which was decreed in his favour on 21‑7‑73. An appeal against this was filed by the Engineering Supervisor, Sargodha, in the Court of District Judge, Sargodha, which remained pending till November 1974, in spite of the provision of Article 212 of the Constitution ; it is reported to have abated recently. In the meantime, the appellant approached the Tribunal on 21‑11‑1974 with the requests that‑ (i) the order of dismissal of the respondent should be declared as valid and legal order and the respondent could not claim to be in service- (ii) pending the decision of the appeal (in the Court of the District Judge), the respondent be restrained from executing the decree in the civil Court ; and (iii) the delay in filing the appeal to the Tribunal may be condoned, as the District Judge was keeping the appeal pending in spite of section 6 of Service Tribunals Act. 3. The Tribunal has already taken a stand that all suits pertaining to civil servants stood abated (on the establishment of the Tribunal on 22‑2‑1974). The appeal to the Tribunal should have been filed being established on 22‑2‑1974, the appeal within three months, i.e. before 22nd of May 1974 and, unless the delay is explained, the appeals filed after 22‑5‑1974 should have to be held as time‑barred. In this connection, relevant extracts from Tribunal's judgment in case of Pakistan and others v. Azizuddin (Appeal No. 407 (R) of 1974) are reproduced below:‑ "Azizuddin's suit for a declaration and injunction before Administrative Civil Judge, Muzaffargrah, was decreed on 31st October 1973, against the appellant, i.e. Islamic Republic of Pakistan and three others Appeal was filed on 3‑12‑1973 to result in dismissal vide District Judge's order dated 25‑4‑1974. These dates are relevant because progress of Law during the time has to be traced with its impact on the cause. Present appeal was filed on 13th June 1974. Service Tribunal Act came into force on 29th September 1973. Under section 3 of the Act, the Tribunal shall have exclusive jurisdiction with respect to matters relating to terms and conditions of service of a 'civil servant' including disciplinary matters. The Act was passed to enforce the constitutional provisions contained in Article 212 of the Constitution of Pakistan. The appeal was filed on 13th June 1974. The Act under section 6 provides that any party to an abated suit or appeal must file an appeal as to issues involved within 90 days of establishment of the appropriate Tribunal. The Tribunal should have been filed by 22nd May 1974, at the latest. Consequently, unless the delay is explained, the appeal shall have to be held as time‑barred. The application for condonation of delay is competent under section 5 of the Limitation Act by virtue of section 7 of the Service Tribunal Act, yet, the explanation does not sufficiently conform to requirements of law to justify the grant of concession. As already pointed out, the suit stood abated on 22nd of February 1974. Thereafter, no jurisdiction vested in the District Judge to proceed to judgment yet it was a case of doubtful jurisdiction, the want of jurisdiction subsequently determined would have given him sufficient cause for agitation, but his pursuit of a nullity would not entitle this Tribunal to condone the delay. The exercise in futility than only earn bitter fruit of disappointment. The Tribunal as such is not sufficiently convinced to grant extension of time for reasons of mistake in assumption of jurisdiction. It is a question of ignorance of law which does not permit exercise of favourable discretion. The appeal being barred by 25 days without reasonable cause, has to be dismissed as time‑barred. The order is made accordingly." 4. This appeal was submitted on 2‑11‑1974, and is therefore, time‑barred by over five months. 5. The appeal cannot be sustained on merits also. As mentioned earlier, according to the terms of appointment, the services of the respondent could be terminated any time without notice and assigning any reasons. The appellant, however, charge‑sheeted him. Once having adopted this procedure, it was necessary to hold a regular enquiry which was not done. 6. The appeal is dismissed. Parties to be informed. G. D. MEMON (MEMBER).‑I agree that the Departmental appeal be dismissed. The order against the Civil Servant being one of `dismissal,' the major penalty could not have been imposed without following the procedure laid down under the relevant Efficiency and Discipline Rules. There has been a material failure and irregularity on the part of the Departmental Authority.