' SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been directed against the judgment of the Service Tribunal, dated 12-4-2000, whereby the appeal filed by Raja Hashmat Ali, respondent, was allowed.
2. The brief facts giving rise to the present appeal are that Raja Hashmat Ali, respondent No,1, was appointed as work charge Clerk, in the Electricity Department on 27-1-1974. Subsequently, he was permanently adjusted in the department as Junior Clerk in grade B-5 vide order passed by respondent No, 4 (Electrical Inspector) On 7-10-1979. The respondent filed an application for leave on half play on 31-8-1986. The application was accepted and leave without pay for 361 days was sanctioned in his favor which ended on 31-12-1986. The respondent was to join his duty on 1-1-1987 but according to his case he could not do so due to some personal difficulties. Subsequently, a proclamation was issued in various newspapers calling upon the respondent to join his duty otherwise he would face the legal consequence for his absence. According to the department, he did not join the duty and was charge sheeted; finally he was dismissed from service on 24-2-1987 for being absent from the duty. It was further the case of the respondent that he had neither any knowledge of the proclamation which was alleged to have been published in the newspapers for joining his duty nor any charge-sheet was served on him through postal letter, as is alleged 7)y the department. It is also contended by the, respondent that he v as not communicated the order of his dismissal which was passed in his absence; subsequently, when he came to know about it he filed a review petition/appeal before the Secretary of the department which was within time from the date of his knowledge although the same was preferred on 9-3-1988, i,e,, one year after his dismissal. However, the said review petition/appeal was not disposed of by the Secretary of the department and remained pending when the respondent, herein, made an application to the Prime Minister seeking the disposal of his review petition/appeal. According to the case of the respondent, in pursuance of the direction of the Prime Minister, his review petition/appeal was decided by the Secretary of the department vide his order, dated 23-8-1995 whereby the same was dismissed on merits as well as being time-barred. Thereafter, the respondent went up in appeal before the Service Tribunal which was dismissed 'holding that he was guilty of misconduct.
Consequently, an appeal was preferred to this Court by the respondent which was accepted vide judgment of this Court, dated 19-3-1998 and the case was remanded to the Service Tribunal with the direction that the appeal might be decided afresh in the light of the observations made by this Court. Consequently, the Service Tribunal, after re-hearing the arguments, allowed the appeal filed by Raja Hashmat Ali Khan, respmident, and passed an order of his re-instatement observing that he had no knowledge of the proceedings against him and his subsequent application for leave should have been accepted. It is against the aforesaid judgment of the Service Tribunal that present appeal has been preferred.
3. It has been contended by Mr. M. Tabassum Aftab Alvi, Advocate, the learned counsel for the appellant, that the appeal before the Service Tribunal was not competent because at the relevant time, Raja Hashmat Ali, respondent, was not a civil servant within the meaning of definition of expression 'civil servant' given in section 2 of the Service Tribunals Act. He has contended that .The relevant'provision was amended in the year, 1999 whereby the said definition was amended and a person no more in service has been included in the definition of the said expression. He has argued that in the instant case, as the appeal was preferred in the year, 1995 when the definition of 'civil servant' had not yet been amended, the appeal in the Service Tribunal by the . Respondent was not competent. He has referred to a case reported as Ms. Zabeda Begum v. Azad Govt. Of State of Jammu and Kashmir 1998 PLC (CS) 292 in support of his contentions, wherein, the proposition has been discussed in detail and it has been held that a. Person who was no more in Government service could not be regarded a 'civil servant' within the meaning of un-amended definition of the said expression.
4. In reply, Mr. Abdur Rashid Abbasi, Advocate, the learned counsel for respondent No,1, has referred to subsection 2 of section 4 of the Service Tribunals Act and has argued that if the appeal is against an order of the departmental authority imposing any of the punishments, envisaged in the said provisions, the appeal was competent to the Service Tribunal, irrespective of the definition of expression 'civil servant'. The learned counsel has taken pain in comparing the provisions of subsections (1) and (2) of section 4 and has maintained that if an order regarding the terms and conditions of service of a civil servant is passed, the appeal could be preferred only by a civil servant who is still in the service but it is not so in case of punishment awarded to a civil servant.
According to the learned counsel, the cases falling in subsection 2 of section 4 of the Service Tribunals Act are appealable whether the concerned civil servant is in service at the time of preferring the appeal or not. In other words, according to the learned counsel, the definition of words 'civil servant' given in section 2 of the Service Tribunals Act would not be applicable to the cases falling within the ambit of subsection 2 of section 4 of the Service Tribunals Act.
5. We have given due consideration to the arguments raised by the learned counsel for the parties on the aforesaid point, it may be observed that the definition of words and phrases given in a statute would be attracted in cases of all the provisions of such statute until and unless the application of the definition has been expressly excluded. Therefore, we are of the view that even cases falling within the ambit of subsection 2 of section 4 only a civil servant was competent to prefer an appeal to the Service Tribunal; as has been already stated, the un-amended definition of 'civil servant' was applicable to the respondent and his appeal to the Service Tribunal was not competent.
6. Next, it has been contended by Mr. M. Tabbasum Aftab Alvi Advocate, the learned counsel for the appellant, that the Superintending Engineer, who was 'Authority' in the case, was not impleaded as a party before the Service Tribunal and, as such, the appeal was liable to be dismissed on this ground. He has referred to a case reported as Qazi Liaqat Ali Qureshi v. Hafiz Muhammad Ishaq (1998 PLC (CS) 153 wherein it has been held that, as the Selection Committee was necessary party, the same was not impleaded in the writ petition. Thus, it was held that the writ petition was incompetent.
7. In reply, Mr. Abdur Rashid Abbasi, the learned counsel for the respondent, has 'contended that present proceedings do not arise out of the writ proceedings and, thus, the authority cited by the learned counsel for the appellant is not relevant. He has further submitted that even otherwise in the instant case, the relevant order was passed by the Electrical Inspector who was impleaded as a party before the Service Tribunal. The learned counsel has contended that as the Superintending Engineer did not pass any order against Raja Hashmat Ali, respondent, he was not a necessary party in the case.
8. After giving due consideration to the matter, we are of the opinion that the objection of the learned counsel for the appellant that the Superintending Engineer was a necessary party in the appeal before the Service Tribunal has no force because the impugned order of dismissal of respondent was passed by the Electrical Inspector who was duly impleaded as a party before the Service Tribunal.
9. Next, it has been contended by the learned counsel for the appellant that the departmental appeal before the Secretary Electricity was filed one year after passing of the dismissal order and it was hopelessly time-barred. He has drawn our attention to the memorandum of departmental appeal filed by the respondent and has contended that no reason for delay was given in the memorandum of appeal filed by the respondent and, thus, the same was rightly dismissed as being time-barred as well as on merits. He has contended that if the departmental appeal is time- barred, the appeal before, the Service Tribunal would also be deemed as time-barred. He has referred to the cases reported as The Chairman, P.I.A.C. v. Nasim Malik (PLD 1990 SC' 951) and Muhammad Azam Mirza v. Chairman, Pak-Telecommunication Corporation, Islamabad (1994 PLC (C.S.) 831) in support of his contention. The learned counsel has further contended that when the respondent filed an appeal before the Service Tribunal, he merely mentioned in the memorandum of appeal that he had no knowledge of the order of his dismissal. The learned counsel has argued that the departmental Appellate Authority has discussed the question of limitation in detail and held the appeal as time-barred but the Service Tribunal merely recorded in the impugned judgment that the respondent had no knowledge and, thus, the same was not time-barred. He has further submitted that even in the memordanum of appeal filed before the Service Tribunal it has not been specifically mentioned by the respondent, herein, that he was not communicated the order of his dismissal.
10. In reply, Mr. Abdur Rashid Abbasi, the learned counsel for the respondent, has controverted the arguments. He has contended that although no reason was mentioned by the respondent in the memorandum of appeal filed before the departmental Authority, yet the has specifically pleaded before the Service Tribunal that he had no knowledge of the order of his dismissal and, thus, the appeal as within time from the date of his knowledge. The learned counsel has argued that the findings given by the Service Tribunal on the point should not be lightly interfered with. The learned counsel has referred to following cases in support of his contentions:-- ' In a case reported as Ch. Muhammad Hussain v. Azad Government of State of Jammu and Kashmir 1997 PLC (CS) 1047 the period of delay in filing appeal before the Service Tribunal was condoned on the analogy of Shabbir Ahmad's case, wherein it was held that a civil servant should file appeal within 120 days of filing his departmental appeal and should not wait for the decision of the same. It may be observed that in the aforesaid authority, the dispute regarding the departmental appeal being time-barred was in dispute and, thus, the authority does not help the case of the respondent.
' In a case reported as WAPDA v. Muhammad Khalid (1991 SCMR 1765), the petition for leave to appeal was rejected observing that as the Service Tribunal had condoned the delay on the basis of evidence and exercised discretion in favor of the concerned appellant. It may be observed that in the instant case, the delay was not condoned by the departmental Authority rather it was held that the appeal filed by the respondent was time-barred. Even otherwise, the question of delay in filing departmental appeal was not directly involved in the aforesaid authority.
11. After giving due consideration to the arguments raised at the Bar, we have come to the conclusion that respondent filed departmental appeal after the expiry of about one year of the order of his termination of service. He failed to give any reason whatsoever for the delay before the departmental Authority! Before the Service Tribunal, he merely wrote that the appeal was within time from the date of his knowledge. There is, no explanation whatsoever in the memorandum of appeal filed in the Service Tribunal as to how and when he came to know about the termination of his service. In view of the detailed reasoning given by the departmental Authority, mere bald statement of a fact without any material that respondent had no knowledge of the order of termination of his service cannot he accepted. Thus, we are of the view that the appeal before the departmental Authority was hopelessly time-barred and, thus, the appeal before the Service Tribunal was also time-bared as has been held in the authorities relied upon by the learned counsel for the appellant.
12. Next, it has been contended by the learned counsel for the appellant that Muzaffar Hussain, appellant herein, was appointed on the post as Junior Clerk after the termination of service of the respondent but he was not impleaded as a party either in the departmental appeal or before the Service Tribunal. Thus. It has been contended on behalf of the appellant that the appeal was nor properly constituted and was liable to be dismissed on this sole ground. The learned counsel has argued that it is evident from the record that the respondent was fully aware of the fact that the post which was previously occupied by him had been filled in but despite that he did not implead the appellant, herein, as a party in appeal filed before the Service Tribunal. He has argued that the appellant has been serving after his due appointment for more than eleven years and if the respondent is re-instated it would adversely affect the appointment of the appellant. The learned counsel has referred to case entitled Manzoor Ahmad v. Muhammad Sabbir 2001 PLC (C.S.) 50, wherein in identical circumstances it was held that as the appointee who was appointed on the post which was previously held by Manzoor Ahmad, appellant, was not impleaded as a party, the appeal before the Service Tribunal was incompetent.
13. In reply the learned counsel for the respondent, has contended that the respondent only challenged the order of his illegal termination of service, Muzaffar Hussain, appellant herein, was not a necessary party. He has submitted that at the most Muzaffar Hussain could be regarded a proper party and, thus, there is no force in the argument that the appeal filed by the respondent was not properly constituted.
14. We have given due consideration to the matter as to whether Muzaffar Hussain, appellant, was a necessary party before the Service Tribunal and the appeal without impleading him was not properly constituted. It would be expedient here to reproduce the observations made by this Court in case entitled Manzoor Ahmad v. Muhammad Sabbir 2001 PLC (C.S) 50 relied upon by the learned counsel for the appellant. The same are reproduced underd :-- "The Service Tribunal accepted the appeal on 24th July, 1999 on which date, as noted above, appellant Manzoor Ahmad stood promoted on regular basis with effect from 14th April, 1997. It means that an anomalous situation has been created. The promotion order of appellant Manzoor Ahmad issued on 14th April, 1997 was neither challenged nor brought to the notice of the Service Tribunal but respondent Muhammad Sabbir has been restored to the same post by the Service Tribunal. The disputed post is unquestionably the same, namely. Assistant Warden Fisheries at Authmaqam. The fault squarely is that of Muhammad Sabbir who did not bring this material fact to the notice of the Service Tribunal. In fact circumstances of the case show that appellant Manzoor Ahmad was a necessary part in his absence no effective order could be passed by the Service Tribunal. Even otherwise the order of promotion of Manzoor Ahmad remains unaffected by the judgment of the Service Tribunal because it is not binding on him since he was not a party. This ground itself is sufficient to set aside the judgment of the Service Tribunal."
' It is evident from the abovementioned dictum of this Court that in the instant case, the appeal without impleading Muzaffar Hussain, appellant, was not properly constituted and the same entailed dismissal on this sole ground. As the appeal is accepted on the grounds mentioned above, we need not go in other points involved in the appeal.
' In the light of what has been stated above, we accept the appeal with costs and set aside the impugned judgment of the Service Tribunal. Consequently, the appeal filed by the respondent before the Service Tribunal stands dismissed.