1988 PLP (C (PLC(CS))

IHSANUL HAQ CHAUDHRY (CHAIRMAN).‑‑The relevant facts for the decision of the present appeal are that the appellant was serving as S.D.O. in the Public Health Engineering Department. He was posted at Jhelum in the year 1979 when he was served with show‑cause notice dated 11‑8‑1982 on the following charges:‑ (1) That according to contract specification crush bedding was required to be provided under sewer laid at Jadda Road Jhelum against the work of Messrs Mirza Fazal Karim & Sons, Sargodha but on inspection of Governor Inspection Team on 16‑10‑1980 it is noticed that sewer has been laid without crush bedding as per entries made at pages 106 to 1G9 and 114 to 117 of M.B. No.4807 and payment made to contractor M/s. Fazal Karim & Sons vide voucher No.33 dated 15‑2‑1979 by you while working as Sub‑Divisional Officer, PHE Project Sub‑Division, Jehlum. You thus got the work executed and made payment of below specification work as no crush bedding was laid under the sewer. (2) Made the payment without setting rubber rings affixed which is/was must according to specification of A.S.T.M. (3) That below specification work has been got executed, at River Road and in street Near River Road where 4" crush under 3" sewer was found mixed with earth. Copy of the show‑cause notice is appended with the appeal. Mr. Ghulam Jillani the then Executive Engineer, PHE, Jhelum and Muhammad Sarfraz the then Sub‑Engineer, PHE, Jhelum were also served show cause notices containing the same allegations."

2. The appellant submitted reply to show‑cause notice on 12‑5‑1981 and Lt.‑Col. Muhammad Yousaf, OSD‑IV (Enquiries), SGA&ID was appointed as Enquiry Officer in the matter. The Enquiry Officer formulated his report holding the appellant and his co‑accused guilty of the charges and submitted the report to the Authorised Officer. The authority after due consideration of the whole matter decided to impose the penalty of compulsory retirement on the appellant. Accordingly notification dated 16‑6‑1983 was issued.

3. The appellant and his co‑accused were, also, involved in a criminal case, which ultimately was transferred for trial to Military Court, which convicted and sentenced him of one year R.I. with Rs.10,000 as fine and dismissal from service. However, MLA Zone 'A' vide his order dated 12‑5‑1985 set aside the proceedings and ordered the reinstatement of the appellant in service.

4. The appellant thereafter moved a mercy appeal on the ground that his co‑accused Ghulam Jillani, Executive Engineer, Jhelum, has since been reinstated as a result of acceptance of his appeal by this Tribunal, therefore, the appellant should also be reinstated and order of compulsory retirement set aside. This mercy appeal was, however, rejected by the Respondent vide memo. dated 20‑10‑1986.

5. The appellant still not feeling satisfied decided to invoke the jurisdiction of this Tribunal through this appeal under section 4 of the Punjab Service Tribunal Act. The appeal was filed on 18‑11‑1986. We have heard the learned counsel for the appellant and gone through the paper book of the appeal. It is argued on behalf of appellant that the appellant was confined to Jail from 6‑2‑1983 to 15‑5‑1983, therefore, he could not appear for personal hearing before the authority on 20‑2‑1983 and 28‑2‑1983. The grievance of the appellant is that he should have been summoned from the Jail. Secondly, that the allegations against the appellant were incorrect and charges were not proved.

6. We have heard the learned counsel and asked him to show how mercy appeal was competent? Secondly, how this appeal is competent and within limitation? It is relevant to give here the brief resume of the previous proceedings before dealing with the arguments of the appeal.

7. The penalty of compulsory retirement was imposed on the appellant vide notification dated 16‑6‑1983. Admittedly the appellant had come out of Jail by the said date but he neither availed the departmental remedy nor filed appeal in this Tribunal. This way the order of compulsory retirement attained finality.

8. The learned Advocate for the appellant in reply to our query submitted that mercy petition was in fact a review petition, which was competent under rule 16 of the Punjab Civil Servants (Efficiency & Discipline) Rules, 1975. The argument is merely an after thought. The appellant was well aware of the fact that he did not avail the departmental remedy of review within 60 days or even within a reasonable time, therefore, he intentionally and consciously styled the same as mercy appeal instead of review petition. It is relevant to mention here that this mercy appeal was moved on 21‑12‑1985 i.e. after about 21 years of the order whereas the review could have been filed within 60 days as per provision of Section 21 of the Punjab Civil Servants Act, 1974, which reads as under: "21(1).Where a right to prefer an appeal or apply for review in respect of any order relating to the terms and conditions of his service is allowed to a civil servant by any rules applicable to him, such appeal or application shall, except as may otherwise be prescribed, be made within sixty days of the communication to him of such order. (2) Where no provision for appeal or review exists in the rules in respect of any order, a civil servant aggrieved by any such order may, except where such order is made by the Governor, within sixty days of the communication to him of such order, make a representation against it to the authority next above the authority which made the order:"

9. It seems that the appellant had mentally accepted the punishment imposed upon him but when he leant that the appeal of his co‑accused Ghulam Jillani has been accepted by this Tribunal on 24‑10‑1985 thereafter he, also, thought of doing something. The appellant was fully conscious of the fact that the review petition would be hopelessly time‑barred and he had also no misgiving about merits of his claim, therefore, he tried to move on compassionate grounds rather than on legal grounds.

10. The learned counsel on the point of limitation has submitted that since this mercy appeal was rejected on 20‑10‑198.6, therefore, present appeal filed on 18‑11‑19f~ is within time. We do not agree with the arguments of the learn counsel on behalf of appellant for the simple reason that the order which had attained finality years back, could not be allowed to be re‑opened by filing miscellaneous petition. If the argument of the learned Counsel for the appellant is accepted then the theory of finality of decision shall disappear. Then one can move a miscellaneous petition any time he likes and when it is dismissed, he can invoke the jurisdiction of this Tribunal and file appeal claiming that the last order in the field is the order passed on his miscellaneous application. We may refer in this behalf to finding of Supreme Court reported as P L D 1985 S. C.309 in case of Government of Pakistan versus Bashir Ahmad Khan The relevant portion of the judgement reads as under: "He challenged his first compulsory retirement through a review application filed on 23rd of October, 1974, which was decided on 3‑6‑1975. This was the final order passed on review. It could be challenged within 30 days, before the Tribunal under section 4 of the Service Tribunal Act. If the appellant chose not to file an appeal but only to repeat a representation before the same authority who had decided the review, that by itself would not give him another cause of action to file an appeal under section

4. The period spent in making the representation this second or any other representation after the decision of the review application, could not be excluded as of right in counting the period of limitation." It was further held:‑ "Same would apply to the appeal arising out of the second compulsory retirement. The review petition filed by the respondent, in that behalf was decided on 13‑6‑1978. Instead of filing an appeal before the Tribunal under Section 4 within 30 days of this final order passed on review, he made another representation which caused further delay. The period consumed during the processing of the subsequent representation could not be excluded as of right. And there being no condonation on any good ground by the Tribunal, the appeal filed on 14‑1‑1979 was clearly time‑barred and should have been dismissed accordingly."

11. It is high time that public servants dealing with matter should clearly understand that before taking a decision or dealing with matter in hand, they are under legal obligation to ensure the following:‑ (1) That appeal or representation is provided by law. (2) That they are competent to deal with the matter. (3) That appeal/representation has been moved within the prescribed limitation and in absence of any period within reasonable time. These are the most important and basic requirements, which a diligent and efficient public servant is supposed to keep in view. We have seen that matters are being dealt with carelessly and in utter disregard of the settled law and rules. It not only complicates the issue but jeopardises the public interest. We can illustrate carelessness handling by referring to the case where the matter has gone to the level of the Supreme Court of Pakistan and same point was being dealt with by the Department in utter disregard of the dictions of Supreme Court yet in another matter this Tribunal has finally decided the issue but still the matter was re‑considered in utter disregard of the order of Tribunal. The civil servant, who does not deep legal provisions in view whether it is done to help somebody or on account of ignorance of law, he should be proceeded under Efficiency and Discipline Rules for gross misconduct.

12. We are of the considered view that last order in the field is dated 16‑6‑1983. The appellant admittedly did not avail departmental remedy of review. Whereas section 4 of the Punjab Service Tribunal Act, 1979 clearly provides that without availing departmental remedy a civil servant cannot appeal to the Tribunal. The relevant provision reads as under:‑ "4.Appeals to Tribunals.‑‑(1) Any civil servant aggrieved by any final 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 Punjab Civil Servants Act, 1974 or any rules against any such order no appeal shall lie to a Tribunal unless the aggrieved civil servants has preferred an appeal or application for review or representation to a departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so 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 grade; and‑‑‑"

13. The learned Counsel when confronted with this situation, his precise argument was that the appellant did ultimately move mercy appeal, therefore, he had complied with the provision. The argument is without any merit and misconceived. The mercy petition at the best could be treated as a miscellaneous petition and the order passed on the same cannot be assailed before this Tribunal as the appeal is only provided against the final order. The appellant having failed to file the departmental remedy cannot maintain this appeal

14. The upshot of this discussion is that there is no merit in the appeal and the same is dismissed. A.A. /153/Sr.P Appeal dismissed.