1988 PLP 421 (SCMR)

NASIM HASAN SHAH, J.--This appeal, by leave of this Court, is directed against the judgment dated 17-11-1985 passed by the Federal Service Tribunal, Islamabad. The relevant facts are that the appellant, a Sub-Inspector in the Watch and Wards Department of the Railway Police, was awarded punishment for reduction in pay by two stages below in the time scale vide order of the Authority dated 14-6-1983 but, according to the appellant, he was not communicated this order and came to know about it only by letter dated 21-8-1984 sent to him by the superinten dent, Pakistan Railways Police, Karachi, on the subject of the "fixation of pay in Basic Scale 7 (Selection Grade) of ASI". He thereafter made a representation on 26-8-1984 to the departmental authority against the fixation of pay mentioned in this letter and as no reply was received to his representation he filed an appeal before the Federal Service Tribunal after the expiry of the statutory period of 90 days on 8-12-1984. This appeal was dismissed by the order of the Federal Service Tribunal vide order dated 17-11-1985 as being incompe tent and as barred by time. This order is impugned by this appeal. The contention of the appellant is that the impugned order dated 14-6-1983 was communicated to him for the first time through a letter dated 21-8-1984 which was in reply to his application dated 7-7-1984 protesting against the fixation of pay. Inasmuch as he was dissatisfied with the said communication (dated 21-8-1984) he had made a representation to the departmental authority for redress in accordance with the rules. Since the department did not respond to this representation he thereafter filed the appeal to the Federal Service Tribunal within the prescribed period of limitation and, therefore, the appeal was well within time. Nor was the appeal incompetent, The learned Tribunal has dealt with this contention in its order in the following way:-- "To appreciate the contention it may be of advantage to reproduce below the document dated 21-8-1984:-- "No.730-K/3/15-PRP Karachi: 21-8-1984 Mr. Zafarullah Khan A.S.I.(P) through SI RPL/KC Sub: Fixation of pay in Basic Scale-7 (Selection Grade) of ASI. Zafarullah Khan of General Store KC. Ref: His application dated 7-7-1984. Please inform the above named ASI in reference to his representation quoted above that as a result of his punishment of reduction in his pay two stages below in the time scale (RNSP-7) w.e.f. 14-6-1983, his pay has been reduced and fixed as under, on his consequent re-instatement in service. Date Pay & Pay & - Scale Scale as ASI as ASI ________________________________ 14-6-83 RNSP-5 RNSP-7 ________________________________ Rs.422/- Rs.433/- He had to cross the E.B. from Rs.447/- to 463/ w.e.f. 1-12-82. He was not allowed to cross E. B. from 14-6-1984 his pay was reduced as a result of punishment by two stages and fixed at Rs.422/- in RNSP-5 Rs.433/-in RNSP-7. 1-7-83 B-7 Selection Gr. He was dismissed from Rs.744/- service on 15-6-83.

10-12-83 -do- Re-instated in service as ASI and period upto 9-12-83 treated as such.

Dismissed from service w.e.f. 9-1-1984 21-6-84 B-7 Re-instated in service

w.e.f. 21-6-1984. Rs.744/- His pay, therefore, was correctly fixed vide this office order No even dated 22-12-1983 and 4-7-1984 which may be adjusted accordingly. Sd/- Superintendent Pakistan Railways Police Karachi" The Tribunal was of the opinion that the aforesaid letter (of 21-8-1984) was not the order imposing the impugned penalty on the appellant but it was only a communication addressed to him in reply to his representation dated 7-7-1984 against the alleged incorrect fixation of his pay. Since the said communication was merely in reply to his representation/ appeal and no provision in law existed for a departmental appeal against such a communication, the appellant s departmental appeal dated 26-8-1984 was an exercise in futility. Moreover, if the appellant was of the opinion that the communication dated 21-8-1984 was the order whereby he stood punished, he should have filed an appeal before the Tribunal within thirty days from the date of communication thereof. But the appeal was filed on 8-12-1984. Hence even if the appeal filed by the appellant to the Tribunal was considered to be an appeal against the order dated 21-8-1984 it was barred by time because this appeal was filed beyond the statutory period of limitation of 30 days. The Tribunal also held that the appellant was, in point of fact, challenging the order dated 14-6-1983 whereby his pay was reduced but no explanation was given for the inordinate delay in filing the appeal against the said order. Furthermore. no departmental appeal was filed by the appellant against the order dated 14-6-1983 and, therefore, the appeal to the Tribunal was also barred by proviso (a) to subsection (1) of section 4 of the Service Tribunals Act 1973. Mr. Zafarullah Khan Brohi, appellant herein, who argued the case in person. submitted that he had never received the order dated 14-6-1983 and became aware of its existence for the first time only by letter dated 21-8-1984; hence the Tribunal was not justified in dismissing his appeal on the ground of limitation. The order dated 14-6-1983 is on the record of the Federal Service Tribunal and is in the following terms:- "OFFICE OF THE SUPERINTENDENT PAKISTAN RAILWAY POLICE KARACHI READ:

1. Report of IRP of (P) C & W Shops Hyderabad under No.PF/636/82 dated 12-5-1982 (2) Charge-sheet dated 7-4-1983 issued to S.I.(P) Zafarullah Khan (3) Reply to charge-sheet was refused to be given by the defaulter S.I. (P) Zafarullah (4) Finding submitted by the DSRP (B) Karachi. ORDER S.I.(P) Zafarullah Khan was issued charge-sheet for his gross misconduct in that he while performing his duties as SI (P) in Carriage and Wagon Workshop. Hyderabad reported sick on 26-4-1982 A . N . and he was declared fit on 27-4-1982 by the Medical Officer Railways Dispensary Hyderabad (C & W). Thereafter, he absented without lawful authority and reported for duty on 11-5-1982. Thus, he remained absent from duty from 27-4-1982 to 11-5-1982 (17 days) without lawful authority and permission,. His action amounts to indiscipline and violation of law-binding orders. The defaulter S.I. (P) refused to give reply to charge-sheet as is evident from letter No.P.B/881 dated 26-4-1983. DSRP (B) Karachi was appointed as an Enquiry Officer to conduct departmental enquiry. The defaulter S.I. (P) was directed through Head Constable No.215 Muhammad Siddiq reader to the DSRP (B) Karachi to attend the proceedings at Hyderabad on 7-5-1983. In accordance with P.F.R. 1624(2)(i) HC Muhammad Siddiq personally met the defaulter S.I. (P) and handed. over the order. The defaulter S.I. (P) read the order and refused to receive the same. Hence HC Muhammad Siddiq made an entry in the lines roznamcha accordingly vide D.D.E.No. 4 dated 28-4-1983. Hence ex parte proceeding was conducted. The statement of P.Ws.(1) Ghiasuddin IRP (P) Armed wing Lahore; (2) Dr. Sohail Rabbani, Medical Officer C&W Dispensary, Hyderabad; (3) Mr. Shaikh Ahmad IRP (P) C & W Shops Hyderabad; (4) HC 215 Muhammad Siddiq, Reader to DSRP (B) Karachi and (5) ASI Muhammad Ajaib R.P. Line Karachi Cantt: were recorded. The Enquiry Officer in his findings has submitted that from the statement of P.Ws. and the defaulter in his statement dated 23-8-1982 charge-sheet levelled against him has been established and fully proved. After perusal of his record, departmental file and keeping in view the indisciplined attitude of the defaulter S.I. (P), I agree with the findings of the Enquiry Officer and award punishment of reduction in pay by two stages below in the time scale with immediate effect. Sd/ 14-6-1983 Superintendent Pakistan Railways Police, Karachi." The perusal of this order shows that the appellant was aware of the proceedings which resulted in the order dated 14-6-1983, although he did not participate in the said proceedings. Moreover, it is also clear from the letter dated 21-8-1984 (against which the appellant filed an appeal before the Federal Service Tribunal) that the fixation of pay of which he was aggrieved was fixed pursuant and on the basis of the order dated 14-6-1983. It is quite clear that the amount of pay of the appellant which was fixed in basic scale-7 was fixed because of the said order and reference to the said order has pointedly been made in the communication dated 21-8-1984. Hence if the appellant was aggrieved by the fixation of his pay in basic scale-7 it was essential to challenge the order dated 14-6-1983. Even if he had not received a copy of it he had at least become aware of it when he received the communication dated 21-8-1984. He could thereafter have obtained a copy of the said order and challenged it by a departmental appeal and if that did not succeed he could then come up in appeal before the Service Tribunal. We agree with the Service Tribunal that the appeal filed by the appellant against the communication dated 21-8-1984 is incompetent as this could not be deemed to be the operative order. We also agree with the Tribunal that the true order, whereby the appellant was awarded the penalty, was the order dated 14-6-1983, which was not challenged at all and if the appeal filed against the communication dated 21-8-1984 is considered to be an appeal against the said order as well, the said appeal was badly barred by time and liable to dismissal on that score. The result is that there is no force in this appeal which is, accordingly, dismissed with no costs. M.I. /Z-21/S Appeal dismissed.