2000 PLP (C (PLC(CS))

SH. RIAZ AHMED, J.

This appeal through leave of this Court is directed against the judgment and order, dated 24-4-1994 whereby the appeal preferred by the appellant calling in question his dismissal from service was dismissed.

2. The relevant facts for the disposal of this appeal are that on 1-11-1983 the appellant was appointed as a Sepoy in the Chenab Rangers and was then promoted to the rank of Lance Naik. On 9-9-1989 the appellant was transferred to the newly created 50-Wing Bhitai Rangers at Karachi and was appointed as Moharrir. On the night between 26 and 27-6-1993, Zulfiqar Ali and Maqbool Ahmed committed sodomy on Sepoy Sher Ali after administering him some drug. Both were proceeded against and on the basis of the confession made by them before the Commandant, they were convicted. A Court of Inquiry was constituted to inquire into the circumstances in which the appellant, Maqbool Ahmed and Zulfiqar Ali committed unnatural offence with Sepoy Sher Ali. The Committee came to the conclusion that the appellant was also guilty of the charge inasmuch as he had arranged a drug powder to be administered to Sepoy Sher Ali and the commission of the unnatural offence took place in his presence. The Committee also came to the conclusion that if the appellant was innocent, then he should have informed the higher authorities about the incident. As a result of the report of the Inquiry Committee, the appellant was dismissed from service vide order, dated 10-7-1993. The appellant then preferred a departmental appeal on 2-8-1993 addressed to the Director-General, Rangers, which was dismissed vide order, dated 5-9-1993. The appellant submitted yet another representation/appeal addressed to the Ministry of Interior on 25-9-1993, which was not responded to and, thus, on the expiry of 90 days, the appellant invoked the jurisdiction of the Federal Service Tribunal (the Tribunal) on 16-1-1994. Alongwith the appeal the appellant also filed an application under section 5 of the Limitation Act for condonation of delay. The Federal Service Tribunal vide orders impugned dismissed the appeal holding it to be barred by time. Precisely the Tribunal observed that under Rule 20(4) of the Pakistan Rangers Ordinance, 1959, the order passed by the Commandant is amenable to appeal, which is to be made within 30 days of the passing of the order. The appellant filed an appeal on 2-8-1993, which was considered and was rejected vide order, dated 8-9-1993. According to the finding of the Tribunal, the appellant ought to have filed an appeal before the Tribunal within 30 days of the order passed rejecting his appeal. According to the Tribunal, the appellant chose a wrong forum by making another representation/appeal to the Ministry of Interior on 25-9-1993, which was considered by the Tribunal to be an exercise in futility. Under rule 20(5), a revision lies to the Ministry of Interior, which remedy was availed of by the appellant and having remained undisposed of, the appellant had preferred an appeal within 90 days of the filing of the revision petition.

3. Leave was granted to the appellant to consider whether the proceedings initiated against him were in accordance with law and as to whether the appeal was barred by time. After hearing the learned counsel for the parties at length, we are of the view that the appellant was governed by the West Pakistan Rangers (Efficiency, Discipline and Appeal), Rues, 1967 and the proceedings against the appellant ought to have been initiated under the provisions of said rules instead of resorting to a summary trial under the military law under which the Court of Inquiry is constituted. Rule 4 of the aforesaid Rules confers a valuable right upon the members of the force to cross-examine the witnesses appearing against them. The appellant obviously has been deprived of this valuable right and therefore, the entire proceedings stand vitiated and this aspect of the matter escaped the notice of the learned Members of the Tribunal.

4. On he question of limitation, we have noticed that appeal filed by the appellant was rejected by the Director-General, Rangers on 3-9-1993 and the said order was received by the appellant on 23-9-1993 against which on 25-9-1993 the appellant filed a representation before the higher authorities, which was withheld in the office of the Director-General. It is further pertinent to mention that this representation/revision/mercy petition should have been disposed of by the Director-General himself under rule 17 on the ground of material irregularity having occurred in the proceedings. Unfortunately, this revision/representation was not disposed of and, thus, it is obvious that after the expiry of 90 days a right accrued to the appellant to invoke the jurisdiction of the Tribunal by way of filing an appeal within 30 days of the rejection of his appeal. In this background, the appeal preferred by the appellant was not barred by time. In this view of the matter, we would allow this appeal and remit the case to the Tribunal to decide the same on merits in accordance with law within a period of two months. M.B.A./M‑338/S???????????????????????????????????????????????????????????????????????????????? Appeal allowed.