M. SALEEM CHAUDHRN (CHAIRMAN).-In this case the appellant an ex-Senior Store Keeper, Excavator Division, Irrigation Department, Faisalabad (previously Lyallpur), aggrieved by the order of respondent No, 3, dated 20th March, 1970, dismissing him from service and directing the recovery of Rs, 5,341.73 in lieu of shortages.
2. Briefly the facts of the case are that the appellant who was a Senior Store Keeper remained attached with the Irrigation Workshop Bhalwal, and Excavator Division, Faisalabad, was allegedly responsible for the shortages amounting to Rs, 13,305 in the Storesattached to the said Divisions. It further appears that there was a Draft Para. 56 (iv) 1963-64 pending concerning the shortages above. The matter appears to have been referred by the respondent No, 3 to the higher authorities.
The Secretary to Government, West Pakistan, Irrigation and Power Department, on 17th December, 1969, vide Annexure '0' to the appeal, observed that since a sum of Rs, 10,000 was recoverable from the appellant, therefore, he considered it desirable to take action for dismissing the appellant from service and further directed that compliance be reported to him before 10th January, 1970. Fhis letter was addressed to the Chief Engineer, Irrigation, Lahore, who in turn on 18th December, 1969, passed on the similar direction to respondent No, 3 and desired the compliance to be reported by the 8th of January, 1970. When the above impugned order was passed. The appellant in the first instance filed a Writ Petition No, 512-S/70 in the Lahore High Court which was declared to have abated on 15th July, 1974 by the Lahore High Court. The present appeal was filed before this Tribunal on 24th January, 1975.
3. The learned Government Pleader has raised two preliminary objections in this case. Firstly he submitted that since the appeal under section 8 of the Punjab Service Tribunals Act was required to be filed within 90 days of the establishment of this Tribunal which expired somewhere on 19th October, 1974, thus the appeal was grossly barred by time. He further submitted that assuming that if the appeal was to be treated as having been filed under section 4 of the Punjab Service Tribunals Act, still it is barred by three days for which there was no explanation justifying the condonation of delay. Thus the appeal is liable to be dismissed on that ground. He also raised the objection that the appellant never filed any appeal to the next hire authority and for that reason the appeal is hit by proviso (a) to section 4 of the Punjab Service Tribunals Act, 1974 according to which no appeal shall lie unless the appeal has been preferred to the next higher authority and a period of 90 days had elapsed thereafter.
4. The appellant, however, submitted that since the orders had been passed in pursuance to the directions issued by the Secretary, Irrigation and the Chief Engineer, Irrigation Lahore Region, therefore, the order was void and as such there was no question of limitation. He also submitted that since the Chief Engineer, Irrigation, Lahore, the departmental Appellate Authority, had issued the direction for the compliance of Secretary, Irrigation's orders dated 29th December, 1969, therefore, there was no use of filing the appeal and in the circumstances, the bar envisaged by proviso (a) to section 4 could not be pressed into service. The learned Government Pleader submitted that the contention of the appellant with regard to the substance of the letter dated 29th December, 1969, issued by the Secretary to Government, West Pakistan, Irrigation and Power Department, was misconceived inasmuch as he was merely directed to take action in accordance with law which provided the maximum penalty of dismissal in such cases.
5. We have heard both the parties. We find that the appeal in any case is barred by time. Evidently in such case the appeal is to be treated under section 8. According to the dictum of the Supreme Court of Pakistan contained in PLD 1976 Lah. 195 In re : lidasood Ahmad Sh. V. Pakistan, the appeal preferred under section 8 after 90 days was barred , by time. Even under section 4, the maximum time available to the appellant was upto 21st January, 1975 and the appeal filed on 24th January, 1975 was clearly barred by time. Needless to observe that the appellant was required to explain the delay for each and every day. In the application for the condonation of delay dated 21st January, 1975, there is no explanation for filing the appeal on 24th January, 1975 when it was ready on 21st January, 1975.
6. The contention of the appellant that the impugned order passed by respondent No, 3 was void is also not correct. At the relevant time, 1960 Efficiency and Discipline Rules, were applicable, according to which no appeal or revision was competent before the Secretary, Irrigation and Power Department. Thus the rule laid down in In re: Syed Fayyaz Hussain Qadri v. Administrator, Lahore Municipal Corporation, Lahore , was not attracted. In fact, the course of action adopted by the Secretary, Irrigation and Power Department, West Pakistan, was clearly authorised by the rule laid down by the Supreme Court of Pakistan-Province of East Pakistan v. M. Amir Hussain . Even otherwise, the Supreme Court has laid down in In re : Sharif Hussain Qazi that a void order being only a type of an illegal order needs to be set aside, Thus the contention of the appellant based upon the view that a void order is free from the bar of limitation, is not correct. We therefore, repel this contention of the appellant. Even the contention of the appellant as to the availability of section 4 for filing appeal is of little avail to him as admittedly he has not complied with the requirements of proviso (a) to section 4. There is no warrant for the contention that appeal to the Chief Engineer could have been futile. We are rather inclined to favour the view that the direction by the higher authority was merely to the effect that action for extreme penalty be taken against him. Thus the appeal is liable to be dismissed in either case.
7. Consequently, the appeal fails and is dismissed. However, there will be no order as to costs. 1 2