1988 PLP (C (PLC(CS))

The appellant was serving as Professor of Electrical Engineering and Head of the Electrical Engineering Department, University of Engineering and Technology, Lahore. The appellant got a job as General Manager with Ameejee Valejee and Sons, therefore, he applied for extraordinary leave vide application dated 24-10-1974 for one year w.e.f. 30-10-1974. The leave was granted by the University but it seems that at the expiry of period of one year the appellant sought extension in the leave. He was asked to produce clearance certificate and also to supply the terms and conditions of his job on deputation together with special justification for the same The leave was not extended and instead the appellant was required through letter dated 10-7-1977 to report on duty. The relevant portion of the letter reads as under:- "The working paper was considered and discussed at length and it was decided that Dr. Ainuddin Ahmad Kazi, may be asked to report back to the University immediately. It was also agreed that decision regarding grant of extraordinary leave for the period he remained out of the University shall be taken after he joins the University. It was further decided that if he does not join the University in compliance with this decision, he may be proceeded against under the Efficiency and Discipline Rules." The matter of the appellant was considered by the Syndicate in its meeting held on 25-9-1977 and the decision was conveyed to the appellant through letter dated 6-10-1977. The relevant portion reads as under: - "Dr. Kazi Ainuddin Ahmad may be asked to report for duty by 10-10-197 7. " The appellant did not comply with the directions and instead alleged in discriminatory treatment in the grant of extension of leave as has been meted out in large number of similar cases. He, also, expressed despair regarding the correspondence of the University communicating the substance of the decision of Syndicate. The appellant was repeatedly asked by the University to join but every time he came up with new proposal but did not bother to join the University. Ultimately the University decided to initiate proceedings against him under the Efficiency and Discipline Rules of the University. This decision was conveyed to the appellant through a letter dated 21-2-1978 together with charge-sheet/statement of allegations. The charge-sheet was issued by Dr. M. Islam Sheikh, V.C. of the University as Authorised Officer. The appellant submitted reply thereto on 16-3-1978 and controverted the allegations against him.

2. After receipt of the reply, Mr. Justice (Retd.) S.A. Mahmood was appointed as Enquiry Officer by the Authorised Officer. The report of the Enquiry Officer is dated 15-4-1978 and was submitted to the Authorised Officer. The same was considered and the appellant was removed from service vide order dated 23-4-1979 and operative portion of the same is read as under:- "I am directed to refer to your U.O. letter No.EE.2-61/77, dated 26th November, 1978 on the subject noted above and to say that the Governor of the Punjab has been pleased to approve removal from service of Dr. Ainuddin Ahmad Kazi, Professor in Electrical Engineering Department, University of Engineering and Technology, Punjab, Lahore, as recommended by the Syndicate of the University." The appellant submitted representation against this. The same was rejected vide memo. dated 9-12-1979. The relevant portion reads as under:- "Representation of Professor Kazi Ain-ud-Din Ahmad has been examined in consultation with the Law Department and affording him personal hearing-by the Chief Secretary, the MLA/ Governor Punjab has been pleased to order that the action taken against Dr. Kazi Ain-ud-Din Ahmed should stand as already decided."

3. It is clear from the grounds of appeal that the appellant tendered his resignation on 13-1-1979 but submitted the same to the Education Adviser to Governor. of Punjab. This was followed by a request directly to the Governor Punjab to retire the appellant from the service of University and intimating that the resignation earlier tendered stand withdrawn. This side of the matter was not further pursued by the appellant.

4. The appellant thereafter kept on submitting representations to the various authorities and ultimately filed the present appeal on 28-3-1987. The appeal is accompanied by application under section 5 of the Limitation Act. It is prayed that the delay, if any in filing the present appeal be condoned, without reference of final order dated 9-12-1979 and the basic order dated 23-4-1979.

5. I have heard the arguments of the learned counsel for the appellant. The argument is that since the appellant was Government servant, therefore, action should have been taken against him under the Civil Servants Efficiency & Discipline Rules and not under the Efficiency & Discipline Rules of the University. Therefore, the order of his removal is void ab-initio. Secondly it is submitted that he being civil servant the University authorities have no jurisdiction to remove him from service and order is corum non judice, therefore, liable to be struck down. This argument is in fact just part of the first argument. It was argued, as to the limitation, that since the order is without jurisdiction and void ab-initio, therefore, the limitation will not come in. Additionally it is argued that since the matter was under active consideration of the Government and the last representation was submitted on 25-11-1986, which has not been decided within 90 days as provided in proviso (a) to section 4 of the Service Tribunal Act the appellant has come within next 30 days hence there is no delay in filing of this appeal.

6. Now I proceed to consider the main argument as to the order being void ab-initio and having been passed by an authority, who was not competent. The learned counsel for the appellant placed reliance on P L D 1976 S C

37. The argument of the learned counsel is devoid of any force both legally as well as factually. Legally speaking the learned counsel has ignored the latest pronouncement of the Supreme Court in S. Sharif Ahmed Hashmi v. Chairman, Screening Committee, Lahore and another, reported as 1980 S C M R

711. Their Lordships had reconsidered the law relating to void orders and the remedy available to the party and concluded as under:- "But, in the instant case, even on the footing that the impugned order is void, the petitioner failed to challenge it for more than a decade, therefore, it must have led to consequences, such as the promotion of other people to the appointment held by the petitioner. Additionally, to allow the writ after such gross laches would be to throw on the tax payer the consequences of the petitioner's gross negligence in pursuing his remedies. But as the petitioner relied upon the judgment in his favour by the Letters Patent Bench, I would recall here that the Letters Patent Bench had relied on this Court's judgment in Abdul Qadir s case, but the delay in filing the writ petition in this case was three years, and there can be no comparison between a delay of three years and a delay of twelve years. I may, however, point out that this Court had condoned a delay of about eight years in Pakistan v. Sheikh Abdul Hamid P L D 1961 S C

105. But this was an extreme case. In any event, the law has to draw a line somewhere between delay which can be condoned and delay which cannot be condoned, and, as the delay in the instant case was too gross to be condoned, the writ petition of the petitioner had to be dismissed on this ground, irrespective of the question whether the impugned order was void or voidable." The appellant has presumed that once order is termed or branded as 'void' then in all eventuality, it is to be set aside without taking into consideration the attending circumstances and the conduct of the party. This cannot be done and I am fortified in my opinion by the following passage from Sharif Ahmad Hashmi's case:- "This passage does not mean that a void order is always to be struck down regardless of the consequences of such a decision, but that a void order must be struck down provided there is no statute or principle of law which would make it unjust or inequitable to strike down the void order. This qualification is very important, and that is why, -for-example, a writ may be refused against a void order if this would enable the petitioner to circumvent the provisions of a statute of limitation. (See this Court's judgment in Civil Appeals 150 and 166 of 1970 Jalal-ud-Din and others v. Mst. Noor Sain and others) and (Jalal-ud-Din and others v. Shamas-ud-Din and others) respectively. Similarly in Ghulam Mohi-ud-Din v. Chief Settlement Commissioner and others P L D 1964 S C 829 a writ petition had been filed against an order which this Court held was void. Nonetheless the writ petition was dismissed on the ground that it was barred by acquiescence on the part of the petitioner. There is also ample authority for the proposition that a writ against a void order may be dismissed, if the petitioner is estopped by his conduct from challenging it, or if he has been guilty of laches."

7. I am, therefore, of the considered opinion that even a void order sealed the fate of matter if allowed to remain intact and not challenged in proper forum. It is relevant to add here that the appellant has challenged the order of dismissal after about 8 years.

8. Factually speaking the whole case of the appellant has been built on the basis that the University Authorities had no jurisdiction to proceed against him. The argument is misconceived and falsified by the Government Notification dated 30-12-1961. Para. 1 of which is reads as under:- "All persons serving, in whatever capacity, in the Government College of Engineering and Technology, Lahore and its Workshops shall with immediate effect stand transferred to serve under the West Pakistan University of Engineering and Technology, Lahore, constituted under the West Pakistan University of Engineering and Technology Ordinance, 1961, (hereinafter referred to as the University)." This way it is clear that all the staff serving in the College stood transferred to the University and became its employees. The other .provisions relevant for the decision of this point raised by the learned counsel for the appellant is para. 3, which deals with the disciplinary action etc. and reads as under:- 30) The University shall exercise all administrative, disciplinary and financial powers in respect of any such person, consistent with the provisions of the West Pakistan University of Engineering and Technology Ordinance, 1961. "

9. It is, therefore, clear that the appellant in matter of discipline was governed by the provisions of West Pakistan University of Engineering and Technology Ordinance, 1961 and not by the Civil Servants Act as now been contended by the appellant. The argument is clearly an after thought, therefore, even on merits there is no force in the arguments advanced by the learned counsel for the appellant.

10. The appeal of the appellant is liable to be dismissed both as incompetent and barred by limitation. The appeal is not competent for the reasons that the order of the Governor dated 23-4-1979 was final and no representation at all lay against the said order of Governor. The relevant portion of section 4 with proviso (a) of the Tribunal Act, 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 servant 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." The appellant in this case made repeated representations and now it is submitted that since his last representation was submitted on 25-11-1986 and the same was not decided within 90 days as required under proviso (a) to section 9 of the Service Tribunal Act, therefore, the appellant has rightly invoked the jurisdiction of this Tribunal within next 30 days. The argument is without any merit for the simple reason that not only the final order has been passed but first representation of the appellant after due consideration was also dismissed on 9-12-1979. The repeated representations are not warranted by' law. In this behalf I can refer to Government of Pakistan v. Bashir Ahmad Khan, reported as P L D 1985 S C

309. The relevant portion of the judgment 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 Tribunals 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." There is yet another decision of the Supreme Court in Shafaat Ahmad and others v. Government of Punjab and 2 others reported as 1986 SCMR

30. This decision of the Supreme Court fully covers the proposition involved in the appeal in hand. The relevant portion of the judgment reads as under:- "There could be three objections to the competency of the appeal including the ground of limitation. The first was that against the order of the Governor no representation at all lay. Therefore, awe time taken in filing the representation, in awaiting its disposal was a time wasted and not condonable. Secondly even where a right of appeal or representation exists it implies one such right accept its repeated exercises. As the order relied upon for extension of imitation is not referable to the first representation but to subsequent one the right of appeal under section 4 of the Tribunal Act came to an end with the filing of first representation and expiry of the prescribed under section 4 of the Tribunal Act. The third ground is that undue influence and pressure was alleged against Mr. Alimuddin, Secretary Irrigation for avoiding the undertaking. Not only that no such grievance was ever expressed against the officer in any of the representations he was not personally impleaded in the appeal to answer the allegation. "

11. In this view of the matter, I hold that this appeal is not competent. Now I come to the limitation. The final order having been passed on 23-4-1979 and in any case the order dated 8-12-1979 concluded the matter once for all. But the appellant still went on making the representations. The appellant still chose not to file an appeal but only to repeat representations, which will not give him fresh cause of action to file an appeal under section 4 of the Service Tribunal Act. This has been clearly held in Government of Pakistan v. Bashir Ahmad Khan's case and I have reproduced the relevant portion while discussing the competency of the appeal. Similarly the case of Shafaat Ahmad and others, as referred to and relevant part of the Judgment of Supreme Court as reproduced, also, directly confirms my views. There is yet another decision of the Supreme Court in case Zia Mohiuddin Khan v. Secretary-General Finance and 4 others reported as 1986 S C M R 782 fully clinches the point under discussion. The relevant portion of the judgment is reproduced as under:- "This was a second representation and the Tribunal was therefore, right in not permitting the petitioner to take advantage of it because section 22(2) of Act LXXI of 1973 does not permit a number of representations to be made. We, therefore, agree with the Tribunal that the appeal before it was barred by time and consequently decline to interfere with its order and, therefore, dismiss the petition and decline to grant leave to appeal."

12. The appellant cannot be allowed premium for his own lapses. One cannot avoid the impression, after going through this volumious paper book, that the appellant was not interested in the job with the, University and for this reason he did not re-join the University in spite of prolonged correspondence spread over a period of about 4 years. The appellant even after passing of the order of removal from service proceeded in a very careless and casual manner although there was no scope for representation specially after order dated 9-12-1979 yet he went on with the representation. If this fact alone is taken into consideration it is sufficient to dismiss the application for condonation of delay.

13. The other aspect of the matter is that the order passed by the competent authority could only be set aside in accordance with the procedure prescribed and the forum provided by the statute and not otherwise. The orders dated 23-4-1979 and 8-12-1979 having been not challenged in proper forum, therefore, the matter stood concluded and a legal parlance is estoppel by judgment. The appellant was negligent to pursue his remedy in the proper forum. There is no explanation, rather it has not been pleaded that the appellant in good faith went on pursuing the matter with different authorities officials. Even otherwise it is difficult to believe such a plea as final order of removal having been passed by the Governor, how a Secretary to Government or any other person can undo the same. The appellant continued repeating representations to the authorities having no jurisdiction to undo the decision, therefore, his fate was sealed. There is no merit in the petition under section 5 of the Limitation Act for the reasons: - (a) The appellant has not pinpointed the period of delay. (b) There is no sufficient cause or scope for the delay. (c) There is no explanation for the period from 9-12-1979 to 24-11-1986 for long 7 years. (d) The negligence, carelessness and lethargic prosecution on behalf of the appellant disentitled him to seek extension. Now if the appeal is allowed the appellant will secure undue benefits and tremendous loss to public exchequer on the one hand and officials who have in the meanwhile joined the service will be disturbed on the other hand. This being no fault either sides of these officials.

14. There is no sufficient cause to extend the time for filing of this appeal. The appellant is guilty of gross negligence and carelessness. He is just flogging a dead horse.

15. The upshot of this discussion is that neither the appeal is competent nor within time nor there is any merit in the same. The same is therefore, dismissed in limine. M.Y.H./134/Sr.P Appeal dismissed.