' SARDAR MUHAMMAD RAZA KHAN, J.--- Oil and Gas Development Company Limited, Islamabad has challenged, after leave of the Court, the judgment, dated 23-6-2000 of learned Federal Service Tribunal whereby, on acceptance of the appeal of Syed Najamul Hassan Naqvi, his compulsory retirement from service was set aside.
2. The respondent joined the company on 23-9-1982 as Deputy Chief Geologist and in due course became a Manager (B-21) when on 12-12-1998 he was served with a charge-sheet levelling the allegations of misconduct. An inquiry was held and ultimately it was found that the charges of misconduct were proved. Accordingly, vide office memorandum dated 13-8-1999 he was made to retire from service compulsorily. His appeal before the Service Tribunal succeeded and hence this appeal.
3.. Learned counsel for the appellant challenged the very maintainability of appeal before the Tribunal on the ground that it was premature and was filed without waiting for a period of 90 days after filing of appeal or representation before the higher departmental authority. The learned counsel drew analogy from section 80 of the Civil Procedure Code where no suit against Government could be filed before the expiry of two months next after notice in writing, as contemplated by the section itself. It was vehemently asserted by the learned counsel that any suit brought in contravention of section 80, C.P.C. Was bound to be rejected under Order VII, rule 11 of the C.P.C. And could not be entertained by the Court. That identical was the case of appeals to be filed under section 4 of the Service Tribunal Act.
4. We believe that the one in hand is a matter squarely akin to the civil law and that is why the learned counsel also consciously sought protection under the provisions of section 80, C.P.C. Still, we cannot avoid making expression that the condition of prematurity involved under section 80, C.P.C. As well as under section 4 of the Service Tribunals Act is of hyper-technical nature.
Legislature having realized this fact has amended the section in the year 1962 by adding proviso to the effect that if a premature suit is instituted without such notice or in contravention of the provision of section 80, C.P.C., the Court shall allow not less than three months to the Government to submit its written statement. The logic behind the issuance of notice under section 80, C.P.C. Of providing time to the Government is covered by allowing it three months time after the institution of suit, to file written statement. This carries an idea that the causes of action if premature can be overlooked if those become mature during pendency of the cause. This Court comprising of Mr. Justice A.R. Cornelius, Mr. Justice B.Z. Kaikaus and Mr. Justice Hamoodur Rahman in Abdullah Bhai's case PLD 1964 SC 106-113 had categorically observed that it was open for the Court to have decreed the suit which was premature when it was filed but where the cause of action matured during the pendency of the suit.
5. The aforesaid verdict though available in field, in principle, this Court comprising of two Honourable Judges in Muhammad Usman's case PLD 1983 SC 436 did not agree to the hearing of a premature appeal by the Tribunal under section 4 of the Service Tribunals Act. Subsequent development would indicate that this rule was relaxed in Syed Aftab Ahmed's case 1999 SCMR 197 by holding that where no statutory provision or statutory rule providing a right of appeal or representation is available in the relevant laws of the appellant, he is not bound to file the same and then wait for a period of 90 days in order to have resort to the Service Tribunal. Similar view was taken in Pakistan International Airlines Corporation 1999 PLC (C.S.) 1539 that if the provision of appeal or representation is available in the statutory rules of a corporation or statutory body, the employee shall have to file such appeal but where the rules are not statutory, the employees can directly resort to the Service Tribunal. In the instant case, the Oil and Gas Development Company is not possessed of any statutory rules and hence the appeal before the Tribunal could be filed directly either without filing any appeal or representation before the departmental authority or without waiting for a period of 90 days. The latest view of this Court in this behalf is given in the case of Sui Southern Gas Company Limited 2003 PLC (C.S.) 796.
6. With regard to the stringency of the rule involved, we have another view of the matter as well.
Any suit or cause which is premature, does not entail the dismissal of that cause but it results into rejection under Order VII, rule 11, C.P.C. That does not operate as res judicata. We are, therefore, of the firm view that if an appeal before a Service Tribunal is premature, it should be returned by the Registrar so as to be re-submitted after the maturity of the cause of action. Quite an anomalous situation would it be that on the one hand and at the initial stage, by serious omission, the timely return of appeal is avoided and the cause of action is allowed to mature during pendency and, on the other hand, at the far end of proceedings, it is dismissed on the ground that the initial submission was premature. Such oke face if taken by the Tribunal cannot be endorsed under any canon of justice. The fact remains that premature matters are not bad but simply premature and must be returned. Failure to do so debars the Tribunal to subsequently jeopardize the rights and bona fide claims of the appellants. We, therefore, conclude that a premature appeal before the Tribunal requires to be returned at the very first instance. If this course of action is not adhered to, the Tribunal subsequently, cannot damage the appellant on grounds of prematurity of appeal when the same had become mature during the pendency allowed by the Tribunal itself. The Tribunal, in the instant case, has rightly declined to dismiss the appeal on this score and moreover, this objection was not taken before the Tribunal either, by filing any concise statement.
7. Coming to the factual aspect of the case concerning charges of misconduct and the manner those were tackled with by the Tribunal, we would take up the charge concerning Gas Dehydration Plant. In this charge 8 officers were under inquiry and the respondent was held liable being member of the Evaluation Committee. The learned Tribunal has rightly concluded that on the one hand, the respondent was not a member of Evaluation Committee consisting of 5 members namely, Mr. Ain-udDin Siddique, Mr. Jaffar Muhammad, Mr. Ghulam Abbas Nakai, Mr. Qamar Saeed Awan and Muhammad Athar. It may be remarked at this stage that Mr. Qamar Saeed Awan was exonerated for not being a member of the committee while he was very much the member thereof, whereas, the respondent was condemned though not a member at all. This was an act of discrimination as well.
8. No action was taken against Mr. Qamar Saeed Awan on the ground that he was to retire on 7-1- 1999. If such reason could prevail with the authorities qua Mr. Qamar ASaeed Awan, it was equally available for the respondent as well who also was to retire on 17-8-1999. The height of discrimination is that Mr. Qamar Saeed Awan was accordingly exonerated but the respondent was compulsorily retired only 4 days before his superannuation.
9. Concerning the charge about appointment of a consultant, it is rightly observed by the Tribunal that the same appointment of consultant was dropped on 27-4-1995 by the competent authority and the said committee did not take any final decision. There were many officers senior to him in the committee and the final decision never rested with the respondent.
10. Regarding Gas Transport Pipeline the allegation against the respondent was that he facilitated the procurement of a Pipeline at a very high cost, depriving the corporation of the benefits of a fair and transparent competition. Suffice it to say for negation of charge that the decision to adopt the, gallop tender was taken at the level of Chairman, the Minister and the Prime Minister. It was implemented through the decision of Chairman O.G.D.C. And the period of 15 days after gallop tender was determined by the Chairman himself.
11. For all the aforesaid reasons, it was rightly concluded that the penalty awarded to the respondent did not commensurate with the so-called misconduct on his part. That he was clearly discriminated and his retirement was expedited malafidely despite the fact that after 4 days he was to retire on superannuation. In the circumstances, the judgment of the Tribunal being unexceptionable is maintained and the appeal is hereby dismissed.