' MOAZZAM HAYAT (MEMBER).--- Appellant Muhammad Idrees was a Security Sergeant in the service of WAPDA. He was dismissed from service on account of misconduct under Pakistan WAPDA Employees (E&D) Rules, 1978 vide order, dated 21-10-1999. It is the legality and validity of this order which has been challenged by him in his present appeal filed under section 4 of Service Tribunals Act, 1973.
2. The appellant has maintained that the proceedings initiated against him were mala fide.
According to him during his posting at Nandipur he had filed a complaint of corruption against Resident Engineer and it was on account of this complaint that he was transferred to Larkana and then dismissed from service. It is stated by him that he had filed complaint against the Resident Engineer because the Prime Minister of Pakistan had issued a direction that complaints could be filed against seniors for their corruption. The appellant was transferred to Larkana on 18-4-1998. He took over at Larkana on 30-6-1998. The Executive Engineer at Larkana relieved him from duty and directed him to report to Lahore Office. He was again sent back to Larkana. Aggrieved by his transfer to Larkana the appellant had filed an Appeal No,256(L) of 1999 in this Tribunal. It was withdrawn on 15-2-2000 as in the meantime he had been dismissed from service. It is stated in the memo. Of appeal that appellant had been dismissed from service because he had made a complaint against Resident Engineer which was ultimately proved to be correct. As regards the departmental proceedings it is submitted by him that the same were conducted stealthily and clandestinely inasmuch as he was never informed about these proceedings.
3. The appeal is resisted by the respondents. The charge of mala fide levelled by the appellant has been resisted. It is stated that the appellant had remained at Gujranwala/Nandipur for about 14 years, therefore, he was transferred to Larkana under a general order by which other officials were also transferred to different. Places. It is further stated that the complaint made by the appellant against the Resident Engineer had no nexus with the proceedings initiated against him under E&D Rules. This contention of the appellant that the departmental proceedings were conducted secretly has also been controverted. It is maintained that the appellant was issued letter of explanation and show cause notices on his last known address but he did not receive the explanation letter and notices and thereafter a notice was published in WAPDA Khabarnama which clearly proved that the proceedings were open and bona fide.
4. We have heard the learned counsel for the parties and have also perused the record.
5. Two preliminary objections have been taken by the learned counsel for the respondents. Firstly that the appellant had not filed any departmental appeal and secondly that the Executive Engineer who had passed the impugned order was not made a party. In this regard it is submitted by the learned counsel for the appellant that departmental appeal had been filed by the appellant against the impugned order on 3-11-1999 and it was addressed to Lt-Genl. Zulfiqar Ali Khan, Chairman, WAPDA. A reference is made to another application dated 14-12-1999 submitted by the appellant to the same Chairman for reinstatement into service. Relying on these documents it is argued by the learned counsel for the appellant that the appellant had filed departmental appeals in time. The learned counsel for the respondents has categorically stated that no appeal was ever filed by the appellant before the Chairman WAPDA. We find force in the argument of the learned counsel for the respondents that the appeals were not filed by the' appellant before the Chairman WAPDA. There is no evidence that these appeals had been presented by the appellant and received by the respondents. Normally all correspondence made by the employees is entered in the relevant registers and endorsement to that effect is made on the copies of the correspondence. On the appeals, alleged to have been filed by the appellant, there was no endorsement to the effect that the same had been filed and received in the office of the respondents. In the absence of any proof we uphold the objection of the respondents that the appeals were not filed. In normal course of events the departments do not conceal facts. If the appellant had actually filed these appeals the respondents would not have hesitated in accepting his contention. We accordingly hold that departmental appeals were not filed by the appellant.
6. The other objection of the learned counsel for the respondents is that the departmental appeals should have been filed before the Superintending Engineer who was the Departmental Appellate Authority of the appellant. This objection has become redundant because we have held above that the appellant had not filed any departmental appeal. But since the learned counsel for the respondents has raised an objection to that effect, therefore, we are constrained to decide it. We are of the view that if departmental appeal is not filed before the appropriate departmental Authority and is filed before the highest Authority then it is D duty of the higher Authority to forward that appeal to the competent departmental Authority. Had the appellant filed departmental appeal the Chairman WAPDA would have immediately forwarded these appeals to the Superintending Engineer and if he had not done so we would have issued a direction in that regard.
But as observed above there is no need of any such direction because we have held that the appellant had not filed any departmental appeal.
7. The impugned order was passed by the Executive Engineer, S.S&T Division, NTDC, Larkana. Rule-7 of the Service Tribunals (Procedure) Rules, 1974 clearly states that in every memo. Of appeal, the competent Authority against whose orders the appeal is preferred shall be shown as a respondent.
The learned counsel for the respondents has argued that this rule has been violated by the appellant as the Executive Engineer, Larkana who was the competent Authority, has not been impleaded as a respondent and for that reason the appeal is liable to be dismissed. This argument of the learned counsel for the respondents cannot be sustained. Order I, Rule 9, C.P.C. Says that no suit shall be defeated by reason of misjoinder or non-joinder of the parties. In view of this principle of law an appeal, which is a continuation of a suit, cannot be dismissed for this reason alone that the competent Authority had not been impleaded as a respondent. The appellant has filed this appeal against WAPDA. The Executive Engineer, Larkana is an employee of WAPDA. The appeal has been properly defended notwithstanding non joinder of Executive Engineer, Larkana. As no prejudice has been caused to the respondents by non-joinder of Executive Engineer, Larkana, therefore, the appeal cannot be dismissed. The argument is repelled.
8. On merits the appellant has endeavoured to prove that he had been made a victim because he had filed a complaint against Resident Engineer. We have perused the transfer order dated 18-4- 1998 by which the appellant was transferred from Nandipur, Gujranwala to Larkana. By the same order Muhammad Hussain, Sergeant was transferred from Nandipur to Jamshoro Mr. Suba Sadiq from Jamshoro to Gujranwala, Mr. Raza Khan from Larkana to Gujranwala, Mr. Muhammad Razzaq Khan from Gujranwala to another section in Gujranwala and Abdul Rasheed from Jamshoro to Gujranwala. The learned counsel for the respondents has stated that the appellant had been transferred as he had already served at Nandipur for about 14 years. The appellant has not denied having served at Nandipur for about 14 years. He was transferred to Larkana as his colleagues has also been transferred to different places. Even otherwise a transfer is an administrative matter and is ordered in routine. The appellant on the basis of his transfer order could not claim victimization particularly when he had already remained at one station for about 14 years. His transfer was not mala fide.
9. The appellant was allotted a quarter in Larkana. He had remained absent from duty after his transfer orders were issued but his absence was regularized and he was granted leave for the period of absence. These acts of the respondents show their bona fides. The respondents could very easily refuse allotment of a house to the appellant and could also refuse to grant him leave for the period he had remained absent. By allowing these concessions the respondents had shown compassion to the appellant and compassion is shown only when there are no mala fides.
10. The last argument of the appellant is that he was not joined in the departmental proceedings which finally resulted into his removal from service. According to him these proceedings were conducted secretly. We do not find any force in this argument of the appellant. The explanation letter dated 17-7-1999 and the show-cause notices had been sent to the appellant on his last known address through registered post A.D. It was reported by the Postman that inspite of his repeated visits the appellant was not found at his residence. The very fact that the respondents had sent notices/explanation letter to the appellant through registered .Post A.D. Proves that the proceedings were not conducted stealthily or clandestinely. Since the appellant was not served with notices sent to him through post, therefore, he was served through a proclamation in WAPDA Khabarnama. Rule 6-A of the Pakistan WAPDA Employees (E&D) Rules, 1978 relates to the procedure for service of the show-cause notice or charge-sheet to the employees in certain eventualities.
This rule was further elucidated by Office Order of WAPDA No,S/S.O(R)24/Vol.1/18144-18743 dated 10th July, 1980.In para 4 of this order it was clearly stated that if the whereabouts of an addressee were not known and letters could not be delivered to him in all such cases a notice could be issued to him in the WAPDA Khabarnama. The principle of substituted service is available in Order V, Rule 20 of Code of Civil Procedure. When a defendant does not accept service of summons and avoids the same he can be served by publication of notice H in a newspaper. Substituted services deemed in law to be effective and valid service. The same principle has been borrowed by the respondents and has been incorporated in para 4 of the Office Order dated 10-7-1980. In the presence of notice published in WAPDA Khabarnama it cannot be held that the proceedings were conducted secretly. We are of the view that notices sent to the appellant on his address and notice published in the WAPDA Khabarnama abundantly proved that the appellant had been served and the respondents had not taken any action at his back. The argument of the appellant is repelled in the circumstances. He was given every opportunity to defend himself. He did not avail the opportunity, therefore, he cannot argue that he was condemned unheard.
11. The last argument made by the appellant is that the complaint made by him against the Resident Engineer was fully proved in an I inquiry conducted by the police. He had submitted an application for directing the police to produce the record of that complaint. The fact that the complaint made by the appellant against the Resident Engineer was genuine did not mean that the proceedings against him were mala fide. He was issued notices to present his defence. If the proceedings against Mm were mala fide he could avail of the opportunity and present his case before the competent Authority. He intentionally did not participate in the departmental proceedings and now he is precluded from maintaining that he has been victimized because he had made a complaint against the Resident Engineer.
12. For the above reasons we find no merit in the appeal which is hereby dismissed.
13. No order at to costs. Parties be informed.