1990 PLP (C (PLC(CS))

5. On 10‑2‑1977, the appellant preferred a departmental appeal against the order of termination of his services. Although we do not find a mention of this fact in the pleadings of the appellant, the record shows that on 4‑9‑1977 he filed an appeal before this Tribunal under section 4 of the Service Tribunals Act, 1973 against the order of termination of his services dated 25‑1‑1977. On 11‑5‑1978, the Tribunal passed the following order in that appeal: "Appellant requests to withdraw the present appeal with a view to filing a petition before the Labour Court. The request is acceded and the appeal is dismissed as withdrawn. No order as to costs." It may be mentioned that the appeal was accompanied by an application for condonation of delay. In this application, it was stated by the appellant that he filed a departmental appeal on 10‑2‑1977 against impugned order dated 25‑1‑1977 and that he had been waiting "in good faith" for a response from the department.

6. After having withdrawn this appeal from the Service Tribunal, he challenged the validity of order-dated 25‑1‑1977 in a petition under section 25‑A of the Ordinance, which was dismissed by Punjab Labour Court No. 4, Faisalabad on 28‑8‑1978. His appeal against the Labour Court's order was accepted by the Punjab Labour Appellate Tribunal, Lahore on 24‑3‑1982, with an order of his reinstatement (Annexure C). The respondents' writ petition against the order dated 24‑3‑1982 was accepted by the Lahore High Court on 21‑4‑1984 on the ground that the appellant is a civil servant in view of section 17(1‑B) of the WAPDA Act and the impugned order was declared to be without lawful authority and of no legal effect (Annexure‑D); which was followed by the passage of respondents order dated 19‑5‑1984 (Annexure E) to the following effect: "In pursuance of Punjab High Court Lahore's decision dated 21‑4‑1984, read with Director Legal WAPDA, Lahore letter No. LA‑25549/80/ 3092, dated 5‑5‑1984, the services of Mr. Muhammad Sadique Turner attached to Xen., Construction Division, WAPDA, Faisalabad are hereby terminated with immediate effect".

7. In the background of these facts, the appellant has approached this Tribunal with the present appeal under section 4 of the Service Tribunals Act, 1973 where the relief sought is that the "impugned orders dated 25‑1‑197 and 19‑5‑1984 removing the appellant from service may kindly be set aside and the respondents be directed to take the appellant back on duty as if the impugned orders had not been passed."

8. The main ground in support of the appeal is that the services of the appellant could not have been terminated on the basis of conduct, which preceded his reappointment on 7‑7‑1975. It is pleaded that order dated 25‑1‑1977 terminating his services was passed in consequence of disciplinary proceedings which dealt with the appellant's conduct before his first removal from service on 5‑7‑1975. After re‑employment it could not have provided them with a ground for disciplinary action. About the inquiry which followed after the parties had come to a compromise before the Punjab Labour Court, the appellant's case is that it was to be confined only to the matter of payment of back benefits and that the inquiry committee was not competent to deal with his absence from office and employment with Fatimah Textile Mills before 5‑7‑1975. It is also in his pleadings that termination of services on the objection of the Audit party was without lawful authority.

9. In defence, it has been pleaded that the present appeal filed on 18‑6‑1984, after the High Court's decision on 21‑4‑1984, is time‑barred. Another objection is that this Tribunal does not have the jurisdiction to decide the matter. On facts it was pleaded that the services of the appellant were rightly terminated by order dated 25‑1‑1977 in consequence of regular and lawfully conducted disciplinary proceedings after fulfilment of the requirements of rules.

10. We feel no hesitation in finding that the appeal is liable to dismissal for the following reasons: (a)(i)???? As we have seen, it was on 21‑4‑1984, that the High Court accepted the respondents writ petition and decided that the Labour Court had no jurisdiction to decide the matter in view of the appellant's status as a civil servant. The High Court order bears out that it was conceded by the appellant's learned counsel that he was a civil servant in view of section 17(1‑B) of the WAPDA Act and that he had nothing to say in view of the clear legal position. Although he has not specifically been marked as present in the High Court's order, he appears to have conceded about the legal position and the order gives us an impression that it was passed in his presence. Even if factually it was not so, according to the appellant's own case, he came to know of the High Court's decision on 19‑5‑1984 when another order of his removal was passed by the respondents. After the communication of this order, there was no justification for delaying the institution of this appeal for about a month till 18‑6‑1984. The result of High Court's decision was that the Labour Court order dated 14‑7‑1976 and Labour Appellate Tribunal order dated 24‑3‑1982 were without jurisdiction and of no legal effect. This brought the appellant back to the situation obtaining before the institution of his earlier Petition No. 266‑P/76 under section 25‑A of the Industrial Relations Ordinance, 1969. In this petition he assailed the validity of order dated 26‑12‑1975, terminating his services in consequence of the Audit party's objection. After the High Court judgment declaring the Labour Court proceedings as illegal, this order of 26‑12‑1975 remains in the field. The appellant has, however, chosen to assail only the validity of subsequent order dated 25‑1‑1977 terminating his services as a result of disciplinary proceedings. Be that as it may, it has been noticed that departmental appeal against this order was filed on 10‑2‑1977. It will, therefore, have to be held that limitation started running against him on the expiry of ninety days after preferring the departmental appeal on 10‑2‑1977. There was no justification for sitting idle after the High Court's order dated 21‑4‑1984 and the appellant should promptly have had recourse to this Tribunal with an appeal under section 4 of the Act. The appeal filed on 18‑6‑1984 is evidently time barred. (a)(ii)??? It was accompanied by an application under rule 8 of the Service Tribunal Procedure Rules, 1974 read with sections 5 and 14 of the Limitation Act for condonation of delay, where it was alleged that he was seriously ill on 19‑5‑1984, when he was removed from service and that it was physically impossible for him to come to the Tribunal on a date earlier than 18‑6‑1984, the date on which the present appeal was filed. No medical certificate or other evidence has been produced by him to show that he was in fact suffering from any ailment and that he was prevented by sufficient reasons from having recourse to the Tribunal within time. We find that explanation for delay in filing the appeal is not satisfactory, as would justify an order of condonation. (b)??????? We have taken notice of the fact that the appellant's previous appeal under section 4 of the Service Tribunals Act to challenge the validity of order dated 25‑1‑1977, was dismissed by the Tribunal as having been withdrawn. The previous appeal having been filed on the same cause of action and in respect of the same subject‑matter, seeking exactly the same relief, the present appeal is barred by principles analogous to those of res judicata. We find no legal justification for sitting on judgment on exactly a similar matter with the same facts and seeking an identical relief. The dismissal of the previous appeal by the Tribunal on 11‑5‑1978 as having been withdrawn, amounts to a final decision of the matter for all intents and purposes. There is no escape from the fact that the present appeal raising substantially the same questions of law and facts is a matter already finally heard and decided by a competent Tribunal, which invites the application of the principle of res judicata. (c)??????? Another fact worth notice is that the appellant has failed to assail the order of termination of his services dated 26‑12‑1975, which still holds the field in consequence of the High Court's decision dated 21‑4‑1984 regarding jurisdiction of the Labour Court/Tribunal. We feel that this order should have been impugned in the present appeal, for no relief can possibly be granted if this order continues to remain in the field.

11. For these reasons, the appeal is dismissed. There will be no order as to costs. Parties to be informed. M.Y.H./531/Sr. F ?????? Appeal dismissed.