2003 PLP (C (PLC(CS))

MUHAMMAD NAWAZ ABBASI, J.

This appeal by leave of the Court has been preferred against the judgment dated 7-5-1995 passed by N.-W.F.P. Service Tribunal, Peshawar, in a service appeal filed by the present appellant.

2. The appellant was served with a charge-sheet containing the allegation firstly that he while posted as Headmaster, Government High School, Dakki, District D.I. Khan auctioned the old furniture of school including iron girders without publication in the newspapers and obtaining proper sanction of the Competent Authority and thereby caused substantial loss to the Government; secondly, that by terminating the services of an old class 4 employee appointed a person of his own choice without observing the legal formalities end thirdly, that being involved in private litigation remained absent from duty without leave. The appellant was proceeded against under N.-W.F.P. Government Servants, (Efficiency and Discipline) Rules 1973 for the above charges and was found guilty by the Inquiry Officer. In the light of findings of Inquiry Officer and the evidence on record, the Competent Authority imposed upon him the penalty of stoppage of two increments due on 1-12-1988 and 1-12-1989 end also gave him bad report in the ACRs. The departmental appeal preferred by the appellant was dismissed by the Secretary Education, Government of N.-W.F.P., Peshawar, vide order dated 31-12-1988 and the petitioner instead of filing appeal before the N.-W.F.P. Service Tribunal, Peshawar, filed a suit for declaration with consequential relief of permanent injunction. The civil suit was dismissed and further upon dismissal of appeal, the petitioner invoked the revisional jurisdiction of the High Court but later after withdrawing the same, filed an appeal in the N.-W.F.P. Service Tribunal, Peshawar, on 4-9-1994. The petitioner sought condonation of delay in filing appeal by way of moving an application under section 5 read with section 14 of Limitation Act, 1908 on the ground that he being under the impression that by virtue of proviso (b) to Section 4 of the N.-W.F.P. Service Tribunals Act 1974 appeal before the Tribunal was barred, filed the civil suit which was entertained and he had been pursuing the civil suit and appeal in good faith, therefore, the time spent may be excluded by giving the benefit of section 14 of the Limitation Act, 1908. The Tribunal dismissed the appeal being hopelessly bared by time. Leave was granted in the present appeal in the following terms. "The learned counsel for the petitioner contends that section 4 of the N.-W.F.P. Service Tribunal Act is worded differently from Section 4 of the Federal Service Tribunal Act and other Provincial Service Tribunal Acts. It is contended that until the decision in the case of Muhammad Anwar v. Chief Secretary to Government of N. W.F.P. (1996 SCMR 835), the view prevalent was that under section 4(1) (b) of N.-W.F.P. Service Tribunal Act, appeal lies only in case in which major penalty is awarded to a civil servant. We are inclined to grant leave to consider whether in view of different phraseology of section 4 of N.-W.F.P. Service Tribunal Act, the petitioner was bona fidely misled to believe that the order or departmental authority awarding minor penalty was not appealable before the Service Tribunal and therefore, he was entitled to condonation of delay for period he was pursuing the remedy before the Civil Court".

3. Learned counsel for the appellant while placing reliance on Muhammad Anwar v. Chief Secretary to Government of N.-W.F.P. (1996 SCMR 835) contends that the remedy of appeal is not available to challenge the quantum of punishment awarded by the departmental authority as envisaged under proviso (b) to section 4 of the N.-W.F.P. Service. Tribunal Act, 1974 whereas the legality of the punishment either major or minor can be challenged through an appeal before the Tribunal but due to the confusion in the law, the petitioner under the legal advice, invoked the jurisdiction of Civil Court in good faith and consequently, the benefit of section 14 of the Limitation Act 1908 would squarely be available to the appellant.

4. There is no cavil to the proposition that an appeal would lie to the Service Tribunal under section 4 of the N.-W.F.P. Tribunal Act, 1974, against the final order passed by the Competent Authority subject to the departmental appeal, if any, except in the case of determining the fitness or otherwise of a person to be appointed to a higher post or grade or the quantum of departmental punishment imposed on a civil servant as a result of a departmental inquiry, other than the penalty of dismissal or removal from service or compulsory retirement.

5. The bar contained under proviso (b) to section 4 of the N.-W.F.P. Service Tribunals Act, 1974 is not applicable to the availing of the remedy of appeal before the Service Tribunal for challenging the legality of punishment awarded to a civil servant under Efficiency and Discipline Rules. The Tribunal having considered the question of limitation in the light of explanation offered by the appellant held that the appeal was barred by time. The learned counsel for the appellant has not been able to convince us that the ground urged for condonation of delay would attract the provisions of section 14 of the Limitation Act. There being no ambiguity in the legal position, the erroneous filing of the suit before the Civil Court on the pretext of wrong advice would not be excuse to exclude the time spent in pursuing the remedy before a wrong forum. There can be no exception to the rule that vailing of remedy before Wrong forum willingly is not a valid ground for condoning the delay, therefore, the dismissal of appeal by the Tribunal being barred by time was not suffering froth, any legal defect. The plea that due to the confusion in law and the wrong "advice, the appellant was mis-directed was not raised before the Tribunal. The said plea for the first time, in the light of observations made by this Court in Muhammad Anwar v. Chief Service to Government N.-W.F.P. (1996 SCMR 835) has been raised before this Court 'but the facts of the above-referred case being distinguishable, it could not be helpful to the appellant and he would not be in a position to claim the benefit of Section 14 of Limitation Act 1908 on the strength of said judgment.

6. We having considered the matter, find that the Tribunal has committed no illegality in dismissing the appeal of the appellant being barred by time. In so far merits of the case are concerned, there would .be no legal ground to challenge the findings of holding the appellant guilty of charges and imposing the minor penalty of stoppage of two increments. The appeal being without any substance is dismissed accordingly. There shall be no order as to costs. M.H./A7349/S Appeal dismissed.