1998 PLP 1375 (SCMR)

SALEEM AKHTAR, J.

The petitioner seeks leave to appeal against the judgment of the Federal Service Tribunal, whereby his appeal was dismissed in limine holding that it was barred by time as well as hit by the principle of res judicata.

2. The petitioner was appointed as trained graduate teacher by order, dated 2nd December, 1969. He was allowed to go on deputation abroad in terms of agreement, dated 2nd August, 1975 for two tours of residential service each of not less than 18 months nor more than 24 months continuous residential service. According to the petitioner, his maximum agreed period of deputation would have expired on completion of four years in August, 1979, Respondent No. 3 issued a show-cause notice, dated 16th April, 1979 stating that the petitioner was on deputation for a period of 3 years with effect from 4-8-1975 to 3-8-1978 but on expiry he had' not reported for duty nor applied for extension of his deputation period which amounted to wilful absence from duty. He was required to report on duty immediately failing which strict disciplinary action would be taken against him. This notice was received by the petitioner on 10-7-1979 through the Embassy of Pakistan with covering letter dated 21-6-1979, According to the petitioner, he replied the notice on 19-7-1979 explaining that the period of deputation had not ended and requested for extension of deputation period up to 5 years. No reply was received by him but instead he received a letter from the Embassy of Pakistan conveying the order of termination. By office order, dated 6th December, 1980, the petitioner's service was terminated with effect from 4-8-1978 for his intentional and unauthorised absence from Government duty. The petitioner addressed a letter dated 12-1-1981 to the Director, Federal Government Education Institution to review the decision. As no response was made by him, the petitioner sent by post memo. of appeal to the Tribunal on 4-2-1981 which was returned on 15-4-1981 as being premature. He resubmitted an appeal on 12-7-1981. It was registered and on 10-1-1982 notice was issued to the petitioner at Nigeria for hearing on 7-2-1982 which according to the petitioner was received by him on 25-3-1982. On 7-2-1982 the appeal was dismissed for non-prosecution. The application for restoration filed on 17-3-1982 was dismissed on 15-4-1986.

3. As petitioner's appeal to the department had not been decided, he tiled a Constitution. petition in the Lahore High Court in which a direction was issued to the Director-General, Federal Directorate of Education, Islamabad to hear and decide the review petition of the petitioner within three weeks. The petitioner was afforded hearing on 21-11-1994 and the following order was communicated to him and is alleged to have been received on 10-12-1994 by letter dated 23-11-1994:- "Reference Writ Petition No. 1087 of 1994, I am directed to refer personal hearing of 21-11-1994 in the office of the Director-General Education. It is to inform that the competent Authority has not agreed with your arguments and the decision already taken against you is still stand being the time-barred case This issues with the approval of Director-General, Education."

4. The petitioner then filed an appeal before the Tribunal on 5-1-1995 which was dismissed by the impugned judgment.

5. The petitioner has contended that after his departmental appeal had been decided, he filed appeal before the Tribunal within the specified time from the receipt of the order and, therefore, it was not barred by time. It was further contended that the earlier appeal was filed before the disposal of the departmental appeal arid, therefore, it will not come in the way of the appeal filed after the decision and disposal of the departmental appeal. Reference can be made to Haji Qadir Bux v. Province of Sindh and others 1982 SCMR

582. It was further contended that the earlier appeal had been dismissed for non-prosecution and, therefore, the question of res judicata does not arise. Leave is granted to consider these questions. M.B.A./G-15/S Leave granted.