2011 SCMR 698 (PLP)

CH. IJAZ AHMED, J.

Sohail Butt, petitioner, seeks leave to appeal against the judgment dated 31-12-2008 whereby the Federal Service Tribunal, Islamabad, dismissed his appeal on merits as well as time barred.

2. Detailed facts have already been mentioned in para 1 of the impugned judgment and memo, of petition in para

2. However, necessary facts out of which the present petition arises are that the petitioner was serving as Senior Patrol Officer in the National Highways and Motorway Police when he was transferred from Islamabad to Sector N-5 (North II) vide order dated 8-2-2003. The petitioner absented himself from duty on 8-2-2003 without any information/prior permission of his seniors and reported back on duty on 11-3-2003 after absenting himself for 31 days. The petitioner on the said date, i.e. 11-3-2003 again absented himself from duty without any intimation or permission from the competent authority. Report was entered against him on daily diary No. 18 dated 11-3-2003 qua his absence from the office. Petitioner reported back on 11-4-2003 after remaining absent from duty for 31 days. Petitioner did not report for duty at his new place of posting till 16-5-2002. Respondents had initiated disciplinary proceedings against him by issuing charge sheet to him under the Punjab Police (Efficiency and Disciplinary) Rules, 1975. An Inquiry Officer was appointed. Petitioner raised objection that respondents had no lawful authority to initiate proceeding against him under Efficiency and Disciplinary Rules after the enforcement of Removal from Service (Special Powers) Ordinance, 2000. Respondents issued fresh charge sheet along with statement of allegations to the petitioner on 3-6-2004 under the provisions of the aforesaid Ordinance, 2000. The petitioner submitted, reply to the charge sheet controverting the allegations levelled in the charge sheet. Petitioner had failed to appear before the inquiry officer in spite of repeated notices issued to him by the inquiry officer. Senior Superintendent of Police as competent authority under section 2(aa) of the said Ordinance, had decided in terms of section 5(1)(4) of the Ordinance as under:-- "It is not necessary to have an inquiry into the above charges conducted through an Inquiry Officer or Inquiry Committee." Show cause notice dated 13-12-2004 was sent to him by the competent authority. Petitioner was awarded major penalty of dismissal from service w.e.f. 10-9-2004 vide order dated 9-4-2005. Petitioner being aggrieved filed appeal before the Deputy Inspector General of Police on 5-7-2007 which was dismissed vide order dated 12-7-2007 as time barred and the same could not be entertained. The petitioner being aggrieved filed Appeal No. 707(R)/CS/2007 before the Federal Service Tribunal, Islamabad, which was dismissed on merits as well as time barred. Hence the present petition.

3. Learned counsel for the petitioner submits that learned Service Tribunal erred in law to dismiss the appeal of the petitioner as time barred without adverting to the facts and circumstances of the case of the petitioner as the impugned order of dismissal was passed by an incompetent authority, i.e., Senior Superintendent of Police whereas Chief Executive vide Notification dated 27-5-2000 through S.R.O. No.208(I) of 2000 has authorized the head of the department/subordinate office to exercise the power of competent authority for the class of persons holding posts in BPS-16-19 while exercising power conferred by section 2(a) of the Ordinance. He further urges that petitioner met with an accident and got fractured in his left feet and was admitted in Tehsil Headquarter Hospital Gujar Khan. Medical certificate was also submitted to the Sr. Superintendent of Police concerned when petitioner appeared before him. The petitioner could not attend office on account of his illness and the medical certificates were also submitted before the Senior Superintendent of Police who did not consider the same at the time of awarding major penalty to the petitioner. Learned Service Tribunal also erred in law to decide the appeal of the petitioner without judicial application of mind.

4. We have given our consideration to the contentions of the learned counsel of the petitioner and also perused the record. It is proper and appropriate to reproduce the basic facts in chronological order to resolve the controversy between the parties: (i) Sow cause notice was issued to the petitioner on 13-12-2004. (ii) The petitioner was removed from service on 9-4-2005. (iii) The petitioner filed appeal before the departmental authority on 5-7-2007. (iv) The departmental appeal of the petitioner was dismissed as time barred on 12-7-2007. Mere reading of the aforesaid facts it is crystal clear that the departmental appeal of the petitioner was barred by limitation for more than two years. It is settled proposition of law that if departmental appeal is not filed within the statutory period, the appeal before the Tribunal would not be competent meaning thereby where departmental appeal is time-barred, then the appeal before the Tribunal is also time-barred. The appeal before the Tribunal was also incompetent on that account. There are series of judgments of this Court in support of the aforesaid proposition of law. See Anwarul Haq case (1995 SCMR 1505), Chairman PIA's case (PLD 1990 SC 951). The above view was re-affirmed in the following judgments:- (i) Dr. Anwar Ali Sahto's case (PLD 2002 SC 101) (ii) Khyber Zaman's case (2004 SCMR 1426) (iii) Syed Ashfat Hussain Shah's case (2006 SCMR 453). The learned Service Tribunal had taken a lot of pain to consider the case of the petitioner even on merits in spite of the fact that his appeal before the Service Tribunal was incompetent as the departmental appeal filed by the petitioner was dismissed as time barred as depicted from para 4 of the impugned judgment. It is settled principle of law that finding of Service Tribunal being findings of fact would not call for interference by this Court while exercising power under Article 212(3) of the Constitution. It is pertinent to mention here that petitioner is a member of discipline force but his conduct as evident from the narration of facts would not deserve any leniency as the petitioner had absented himself from duty without securing any permission from any higher authority for a considerable period approximately 3 months. Petitioner had also failed to file reply of the show cause notice issued to him at his given address and even when the same was published in the newspaper, therefore, learned Service Tribunal was justified to come to the conclusion that petitioner had no case even on merits. As mentioned above the learned Tribunal dismissed the appeal as time barred as well as 'on merits, even otherwise the learned counsel of the petitioner has failed to raise any question of public importance as contemplated under Article 212(3) of the Constitution. It is better and appropriate to reproduce Article 212 (3) of the Constitution to resolve the controversy between the parties:-- "

212. Administrative Courts and Tribunals.

(1)

(2)

(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal". The word `satisfied' means `existence of mental persuasion much higher than mere opinion meaning thereby the phrase satisfied means simply makes up its mind. See Blyth v. Blyth {(1966) AER 524 (541)}, also means a mind not troubled by doubt or to adopt the language of Smith, J a mind which has reached on clear conclusion Angland v. Payne {1944 NZLR 610 (626)}. The word `substantial question of law' means a 'substantial question of law as between the parties in the case involved'. See Raghuman Prasad Singh and others v. The Deputy Commissioner of Partabgarh and others (AIR 1927 P.C. 101). The dictum laid down by the Privy Council was followed by the Indian Supreme Court in the case of Sir Chunilal v. Mehta and Sons Ltd. (AIR 1962 SC 1314). The word 'public importance' can only be defined by a process of judicial inclusion or exclusion because the expression public importance is not capable of any precise definition and has not a rigid meaning, therefore, each case has to be judged in the circumstances of that case as to whether the question of public importance is involved. But it is settled that public importance must include a purpose or aim in which the general interest of the community as opposed to the particular interest of the individuals is directly and vitally concerned. See Abdul Aziz's case (PLD 1982 SC AJ&K 16). The' word `grants' means 'permission'. The following are the ingredients of said Articles: (a) An appeal lies to the Apex Court from a judgment, decree, order or sentence of such Court or Tribunal. (b) Appeal shall only lie if the Apex Court grants leave to appeal being satisfied that the case involves a substantial question of law of public importance. The above referred ingredients of Article 212(3) of the Constitution clearly show that constitutional power under this Article is discretionary in character/nature which has to be exercised reasonably, honestly and not arbitrarily or capriciously or in bad faith. It is pertinent to mention that involvement of a question of law of public importance alone could justify leave to appeal under Article 212(3) of the Constitution. In other words, appeal against order of Service Tribunal is competent only on ground of law of public importance, otherwise barred. We find that the Service Tribunal has examined each and every piece of evidence at considerable length before coming to the conclusion that apparently the petitioner had absented himself without permission of his higher officer as evident from para 3 of the impugned judgment. We are not persuaded that the Service Tribunal has ignored any material evidence or mis-reading the same in reaching its conclusions.

5. In view of what has been discussed above, we do not find any merit in this petition and the same is dismissed. Leave refused. S.A.K./S-34/SC Leave refused.