SHAH ABDUR RASHID (CHAIRMAN).-----The appellant, Rasheed Ahmed, who was serving as Lower Division Clerk in the Civil Service Academy, Lahore, was charge-sheeted and proceeded against for misconduct and removed from service by the Director, Civil Service Academy, Lahore, by order dated 15th February 1972. Aggrieved by this order, the appellant filed a suit in the Court of Civil Judge, which by virtue of the provisions of Civil Servants Ordinance, 1973, automatically abated. The appellant filed the present appeal on 17th July, 1974, and the learned counsel for the respondent has, taken a preliminary objection that the appeal is barred by time.
2. The learned counsel for the appellant has contended that the impugned order was passed by the Director, Civil Service Academy on 15th. February, 1972, and that since the Tribunal was established on 22nd February, 1974, the appeal filed by the appellant on 17th July, 1974, was within time having been filed within the period of six months, as provided for in subsection (1) of section 4 of the Service Tribunals Act, 1973.
3. The learned counsel for the respondent has, however, contended that the provisions of section 4(1) in this case are not applicable inasmuch as the appellant was before the civil Court and his suit abated on the passing of the Service Tribunal Ordinance, and therefore, in accordance with the proviso to section 6 of the Service Tribunals Act, 1973. The appeal should have been filed within ninety days of the establishment of the Tribunal.
4. The argument of the learned counsel for respondent is quite valid inasmuch as the period provided for in proviso to section 6 related to those appeals which are filed on abatement of suits, appeals or applications, whereas section 4(1) is applicable when the appeal is filed from the date of the order of departmental authority.
5. The learned counsel for the appellant then contended that no doubt, the appeal is apparently time barred in view of proviso to section 6 but nevertheless the Tribunal should altogether ignore the fact of the filing of the suit and invoke the provisions of section 4(1) which gives six month's time from the date of establishment of the Tribunal for filing an appeal from the final order of the departmental authority. This conten--tion has no substance inasmuch as neither section 4 controls section 6 nor section 4 is controlled by section 6. Both are independent provisions and whenever certain matter was pending in a civil Court at the time of establishment of the Tribunal, a period of ninety days was available for filing the appeal. Even if the provisions of section 4 are invoked, the appellant cannot get any redress from this Tribunal because an appeal under section 4 cannot be filed without first exhausting the departmental remedy provided for. The Civil Servants Classification (Control and Appeal) Rules, 1978 specifically provide that every officer against whom an order is passed, is entitled to prefer at least one appeal against such order. The appellant having failed to file the appeal to the departmental authority could not come to the Tribunal directly in order to seek remedy and the enlargement of time to six months from the date of the establishment of the Tribunal. If section 6 is applicable then the appeal is time barred and if section 4 is applicable, then the appeal is incompetent. In both the cases, the Tribunal cannot exercise the jurisdiction, though we are of the view that in this particular case, section 6 and not section 4. Of the Service Tribunals Act, 1973 is applicable.
6. In view of the above facts, the appeal is dismissed. No costs.
7. Parties be informed accordingly.