M. A. Aziz, Member.--It has been stated that the appellant was appointed on 7.12.1989 in the Pakistan Railways as Semi Skilled Slinger in Carriage and Wagons Shop under the administrative control of the respondents. Disciplinary action was taken against him under the Removal from Service (Special Powers) Ordinance, 2000 for absence from duty from 7.9.2001 to 12.10.2001. A Show Cause Notice was issued to him on 12.10.2001. His explanation was not found satisfactory and he was removed from service with effect from 19.12.2001 vide order dated 20.11.2001. The appellant filed departmental appeal on 4.12.2001. It was rejected on 20.3.2002.
2. It has been contended by the learned counsel for the appellant that the absence of the appellant was not intentional or wilfull. It was due to severe ailment of his wife. The appellant submitted another representation on 2.8.2004 to the Chairman, Pakistan Railways. It was rejected on 14.9.2004. He then submitted a mercy petition before the Chairman, Pakistan Railways. The appellant also filed Writ Petition No, 20841/2009 which was disposed of on 23.10.2009 with the direction to Respondent No, 1 to decide the mercy petition which was pending since long within a reasonable time. The respondent had a grudge against him. Consequently the mercy petition was dismissed on 12.1.2010 with the remarks that there was no provision in rules for second representation or mercy petition. But it is a fact that Respondent No, 3 accepted two mercy petitions against the removal from service vide order dated 15.1.2003 and 16.7.2004. Thus he has been a victim of discrimination. It is a violation of the Constitution of the Islamic Republic of Pakistan, 1973. The orders passed against him are void and void orders are nullity in the eye of law.
The appellant has been condemned unheard. The orders passed by the respondents are not speaking orders. It has been prayed that the appeal may be accepted, illegal and unlawful removal from service order dated 20.11.2001 may be declared as void, without jurisdiction and nullity in the eye of law and may be set aside. It has been further prayed that direction may be issued to the respondents to reinstate the appellant in service with all back benefits.
3. The appellant has also filed an application under Section 5 of the Limitation Act wherein it has been stated that the appellant came to know about the impugned order on 14.9.2004. He approached the wrong forum which was neither intentional nor wilfull. According to him, the delay in filing the appeal was not intentional but due to the circumstances and ignorance of the appellant regarding the impugned order.
4. On the other hand, the learned counsel for the respondents has stated in his Parawise Comments/Objections that Mr. Javed Iqbal, appellant was served with Show Cause Notice at his available home address through postal authorities which was received and acknowledged by the appellant on 13.10.2001. He submitted defence reply which was considered by the competent authority and keeping in view his previous punishment record during his 12 years service and his attitude towards official duty he was awarded the penalty of removal from service vide order dated 20.11.2001. He submitted his appeal to the Appellate Authority which was considered and rejected. He was informed about the decision vide letter dated 3.4.2002. He again submitted a representation which was also replied with the remarks that he had already availed his right of appeal and there was no provision in the rules for second appeal/mercy petition. The mercy petition addressed to the Chairman directly was received through Liaison Officer to the Federal Minister for Railways which was also replied through letter dated 6.4.2006. After that he filed a petition in the Hon'ble Lahore High Court which was dismissed on 23.10.2009. The appellant was awarded six punishments before the punishment of removal from service. It is pointed out that the reason for unauthorised absence mentioned in this appeal is the ailment of his -wife whereas the reason given in the defence reply dated 18.10.2001 it is the illness of his mother. The appellant is a habitual absconder. In Writ Petition No, 20841/2009 filed before the Hon'ble Lahore High Court, facts were concealed by the appellant. The appellant has been informed about the decision vide letter dated 12.1.2010 in response to Hon'ble Lahore High Court order dated 23.10.2009. It has been prayed that the appeal may be dismissed with costs.
5. We have considered the arguments of the learned counsel for the parties and have perused the record.
6. We find force in the argument of the respondents that the appellant had already availed his right of departmental appeal and the same was rejected by the respondents. The provision of second departmental appeal or mercy petition is not available to him under the rules. The appellant has approached this Tribunal after 9 years. Under Section 4 of the Service Tribunals Act, 1973, a civil servant is required to file departmental appeal and thereafter he can wait for 90-days and then approach the Tribunal. The Tribunal does not have the powers to give concession to the civil servant for the period which was spent in litigation in wrong forum as provisions of Section 14 of Limitation Act A are not applicable to the proceedings before the Federal Service Tribunal. The time spent in wrong forum is not a sufficient cause for condonation of delay under the Service Tribunals Act, 1973. Hence the application for condonation of delay does not merit consideration.
7. For the foregoing reason without discussing the merit of case, appeal is dismissed as time barred.
8. No order as to costs.
9. Parties be informed.