2006 PLP (C (PLC(CS))

JUSTICE (RETD.) ABDUL GI-IANI SHAIKH (CHAIRMAN).--Appellant Atta Muhammad while serving as Messenger in Bio-Technology Department of Karachi University was proceeded with departmentally on account of absence from duties and late coming etc., Professor Zahid Mehmood of Department of Statistics was appointed as Inquiry Officer. Appellant was served with call notice, dated 8-5-1998 issued by the said inquiry Officer on the following charges:-- (1) Late coining to the Department. (2) Disregard to the instructions of the Chairperson. (3) Misbehaviour with Teachers and not doing the jobs asked for. In his reply appellant denied the allegations and explained his position. As per inquiry report appellant was found guilty of late coming, absence without leave and non-compliance of Chairperson's order. He was again served with another call notice, dated 17-7-1998 by the same Inquiry Officer to the effect that appellant was asked by the competent authority to get his medical check-up done by the Senior Medical Officer but he failed to submit the certificate and thus disobeyed the orders of the competent authority and that he reportedly remained absent from duty without permission, which too the appellant replied and denied the allegations. His replies were not found satisfactory and by order, dated 12-11-1998 he was removed from service. He preferred departmental appeal which was rejected as per order, dated 20-10-1999.

2. Instead of approaching this Tribunal, appellant filed appeal No.1225-K/1999 before the Federal Service Tribunal, at Karachi. The said appeal was withdrawn by appellant on the ground that he is provincial employee and under bona fide mistake he filed appeal before F.S.T. The said appeal was thus disposed of on 26-1-2001. Hence, this appeal.

3. Learned counsel for the appellant who was present in the early hours of the day while leaving the Court with permission simply stated that the grounds raised in the memo. of appeal may be treated as his arguments.

4. Mr. Muhammad Tasneem, learned counsel for the respondents contended that appeal is hope-lessly time barred and is liable to be dismissed on this score alone. He submitted that departmental proceedings were conducted in perfect legal manner. Appellant was in habit of availing self-granted leave, late comer, used to misbehave with Teachers and defy the orders of his superior/Chairperson and such charges during inquiry proceedings held in appellant presence were fully proved against him. Therefore, the appeal being non-maintainable, time barred and devoid of merit, may be dismissed.

5. Perusal of the record reveals that departmental proceedings initiated against the appellant were in utter disregard of the mandatory provisions of the Efficiency and Discipline Rules of the Karachi University. According to the E&D Rules, the issuance of show-cause notice, appointment of inquiry officer and issuance of final show-cause notice are the functions of the `Authorised Officer'. Here in the instant case the Deputy Registrar of the University appointed the Inquiry Officer. The call notice was issued by the Inquiry Officer who was not competent to do so. Perusal of the inquiry report reveals that only the written reply of the appellant to the call notice was taken into consideration. Neither any witness was examined nor any document was referred therein. Besides, in the call notice as well as in the final show-cause notice published in daily `fang' there is no detail of appellant's absence. There is nothing on the record to indicate as to when and with whom and in whose presence appellant misbehaved with his teachers and which of the orders of the Chairperson were disobeyed by the appellant. As stated earlier, none of the procedure incorporated in the E& D Rules was complied with. The order of removal from service is thus illegal, void and in derogation of the rules and by no stretch of imagination either sustainable or maintainable. As regards second call notice, dated 17-7-1998 issued by the Inquiry Officer that appellant despite orders of the competent authority failed to appear before Senior Medical Officer for his medical check-up, it is suffice to say that no inquiry in this regard was ever conducted by the Inquiry Officer. On this charge too, the show-cause-cause notice was. not issued by the 'Authorised Officer' as required under the Rules. Issuance of call notice by the Inquiry Officer under the Rules cannot be treated as 'Show-cause notice'. Contention of Respondent's learned counsel that appeal is time-barred though has some force, but the delay in filing the instant appeal was neither wilful nor deliberate but as it appears it was due to unavoidable circumstances. The appellant was removed from service vide order, dated 12-11-1998 which he challenged in his departmental representation addressed to Vice Chancellor. The same was rejected vide order, dated 20-10-1999 by the Registrar. Appellant due to some wrong impression at first instance filed appeal before the Federal Service Tribunal at Karachi, well within time. The same was entertained and remained pending for quite considerable time. It was subsequently withdrawn by the appellant on 26-1-2001 and then he filed the present appeal. It appears from the circumstances that appellant was pursuing his legal remedy before incompetent forum under bona fide impression. Therefore, the time spent before incompetent forum is liable to be condoned under section 14 of the Limitation Act, which is hereby condoned. Besides, the impugned orders being void ab initio, therefore, under settled principle of law there is no limitation against void order.

6. For the foregoing reasons, the appeal is accepted, impugned orders are set aside and appellant is directed to be re instated in service. The intervening period shall be treated as `leave of kind due'. There shall be no order as to costs.

7. Announced in open Court. H.B.T./6/KST????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.