Justice Shahid Waheed, Member.--Prayer in this appeal, under Section 5 of The Punjab Subordinate Judiciary Service Tribunal Act, 1991,, is to set aside Letter No. 171/RHC/C-I dated 31st March, 2011 whereby the review petition of the appellant against Notification No. 133/RHC/CJJ dated 9th May, 2009 was rejected.
2. Shorn of dispensable details, the facts of case are that on 9th February, 1991, one Muhammad Ashraf filed a complaint against the appellant, Raja Muhammad Shafiq Javed, who at that time was working as Civil Judge. Pursuant to said complaint, an inquiry was conducted against the appellant wherein he was held guilty and resultantly under the provisions of Rule 3(b) and (c) of The Punjab Civil Servants (Efficiency & Discipline) Rules, 1975 a major penalty of dismissal from service was imposed upon him vide Notification No. 25/RHC/CJJ dated 31st January, 2001.The appellant challenged the said Notification before this Tribunal through Service Appeal No. 51 of 2001. This appeal was accepted vide judgment dated 10th December, 2004. The respondent challenged the said judgment before the Hon'ble Supreme Court of Pakistan through Civil Petition No. 599-L of 2005. This petition was dismissed vide order dated 5th October, 2006. In compliance with the judgment passed by the Hon'ble Supreme Court of Pakistan, the appellant was reinstated into service with back benefits vide Notification No. 237/RHC/CJJ dated 1st November, 2006.
Subsequently, the appellant performed his duties as Civil Judge, 1st Class, at Noorpur Thal (01.11.2006 to 25.07.2007), 'Pindigheb (26.7.2007 to 12.10.2008); and, Rawalpindi (13.10.2008 to 16.4.2009). Lastly on 17.4.2009 he was posted at Lahore as OSD Lahore High Court, Lahore. While assuming the charge of post of OSD, Lahore High Court, the appellant on 23rd April, 2009 also tendered his resignation. This resignation was accepted vide Notification No. 133/RHC/CJJ dated 9th May, 2009. After a lapse of more than one year the appellant filed a petition for review of Notification No. 133/RHC/CJJ. Dated 9th May, 2009. The appellant also filed an application for condonation of delay in filing the said review petition. Both the said applications were rejected by the Authority vide Letter No. 171/RHC/C-1 dated 31st March, 2011. Hence, this appeal.
3. At the outset of hearing we confronted learned counsel for the appellant with the fact that appellant's appeal/petition seeking review of the Notification No. 133/RHC/CJJ dated 9th May, 2009 was barred by time and asked as to how this appeal was competent. In response to said query, learned counsel for the appellant submitted that copy of the Notification No. 133/RHC/CJJ dated 9'
May, 2009 was not communicated to the appellant; that on gaining knowledge the appellant on 13th August, 2009 filed an application for obtaining certified copy of the said Notification but the same was not provided to him; that the appellant with intention to get certified copy of the said Notification moved the Hon'ble Lahore High Court through W.P. No. 134370 of 2010 but the same was dismissed being not maintainable; that the appellant approached the Hon'ble Supreme Couit of Pakistan through CPLA No. 1263 of 2010; and, that during hearing of the case Hon'ble Supreme Court of Pakistan advised the appellant to withdraw the appeal and approach the respondent by way of representation as provided under the law; that consequently the appellant filed a representation before the respondent but the same was rejected vide Letter No. 171/RHC/CJJ dated 31st March, 2011; and, that from the said date the instant appeal is within limitation and, therefore, competent.
4. On the other hand, learned counsel for the respondent submitted that the appellant was aware of the Notification No. 133/RHC/CJJ dated 9th May, 2009 whereby his resignation was accepted. In support of this contention he presented before us a copy of the charge relinquishment report; and, Letter No. 14587 dated 18th January, 2010 whereby the Deputy Registrar (Admn) on behalf of the Registrar, Lahore High Court, Lahore forwarded the charge relinquishment report to the Accountant General, Punjab, Pay-Roll-X, Lahore. He urged that the appellant being aware of the Notification No. 133/RHC/CJJ dated 9th May, 2009 relinquished the charge of the post of OSD, Lahore High Court, Lahore and thus he could not take the plea of non-communication of said Notification. He further argued that when the departmental appeal/representation was barred by time then this appeal would not be competent.
5. We have heard learned counsel for the parties and perused the record. The admitted facts of the case are that while assuming the charge of post of OSD in the Lahore High Court, Lahore the appellant on 23rd April, 2009 also tendered his resignation; that the said resignation was accepted vide Notification No. 133/RHC/CJJ dated 9th May, 2009; and, that against the said Notification the appellant on 30th July, 2010 filed a departmental representation. These admitted facts show that the appellants departmental representation was barred by time. It is the case of the appellant that delay in filing departmental representation occurred due to the default of the respondent is not communicating Notification No. 133/RHC/CJJ dated 9th May, 2009 to him. This plea has no substance and the same is negated from the contents of charge relinquishment report signed by the appellant, which reads as under:- "CHARGE RELINQUISHMENT REPORT I, Raja Muhammad Shafiq Javed, have this 9th day of May-2009, relinquished the charge of post of O.S.D., Lahore High Court, Lahore, in compliance with the Notification No. 133/RHC/CJJ dated 9th May, 2009.
Sd/ Rana Muhammad Shafiq Javed O.S.D.
Lahore High Court, Lahore.
The above said charge relinquishment report was forwarded to the Accountant General Punjab in following words:-- "LAHORE HIGH COURT, LAHORE To No. 14587 The Registrar, Lahore High Court, Lahore.
To The Accountant General Punjab, Pay Roll-X, Lahore Dated Lahore the 18-1-2010 Forwarded a Certificate declaring that the charge of the post of O.S.D, Lahore High Court, Lahore, has been relinquished by Raja Muhammad Shafiq Javed, on 9th day of May-2009, in compliance with the Notification No. 133/RHC/CJJ dated 9th May, 2009.
Sd- Deputy Registrar (Admn)
For Registrar"
6. Perusal of above stated charge relinquish report; and, Letter No. 14587 dated 18th January, 2010 unfold the fact that the appellant was in possession of the Notification No. 133/RHC/CJJ, dated 9'
May, 2009. He, therefore, could have filed departmental representation seeking review of said Notification within a prescribed period of time. Conversely, he consumed more than a year and filed departmental representation on 30th July, 2010. This was patently barred by time. Although the appellant, by concealing the afore stated facts, made a feigned attempt to cover up the default by filing a petition before the learned High Court, and Hon'ble Supreme Court of Pakistan with a prayer that a direction be issued to the respondent for delivering him a copy of Notification No. 133/RHC/CJJ dated 9th May, 2009 yet the same were of no avail as these facts were not stated in the application for condonation of delay. The appellant in his departmental representation or in the application for condonation of delay before the respondent had neither disclosed sufficient cause for condonation of delay nor explained the delay of each day in filing the belated representation. We are, therefore, clear in our mind that the appellant had failed to disclose sufficient cause for condonation of delay in filing departmental representation and, therefore, the same was rightly rejected by the respondent vide impugned Letter No. 171/RHC/C-I dated 31st March, 2011.
7. The other argument that the Hon'ble Supreme Court of Pakistan during the course of hearing of CPLA No. 1263 of 2010 advised the appellant to withdraw the petition and to approach the respondent by way of representation as provided under the law is also against facts. In fact the appellant made a request before the Hon'ble Supreme Court of Pakistan to withdraw the said petition in order to avail legal remedy before the proper forum for redressal of his grievance. On the basis of said request the petition was dismissed as withdrawn. The order dated 28th July, 2010 of the Hon'ble Supreme Court of Pakistan, for ease of reference, is reproduced hereunder:- "Learned counsel for the petitioner wants to withdraw this petition in order to avail legal remedy before the proper forum for redressal of his grievance.
Dismissed as withdrawn."
8. It is by now a well settled principle of law that if a departmental representation is barred by time,, then without disclosing any sufficient reason for delay no subsequent order of disposal of such incompetent representation could create fresh cause of action; and, that the appeal before the Tribunal would be incompetent. Reliance in this regard is placed on The Chairman, PIAC and others vs. Naseem Malik (PLD 1990 SC 951) Abdul Wahid vs. Chairman Central Board of Revenue, Islamabad and another (1998 SCM R 882), Muhammad Afzal vs. Inspector General of Police and others (2004 SCM R 18), Muhammad Islam vs. Inspector General of Police, Islamabad and others (2011 SCM R 8) and Muhammad Asif Chatha and others us. Chief Secretary, Government of Punjab, Lahore and others (2015 ,SCMR 165). In the case on hands, the appellant had not only failed to disclose sufficient cause for condonation of delay in filing departmental representation but has also not filed any application for the same before this Tribunal. Thus, this appeal, as per above said principle of law, is not competent.
7. In the sequel, this appeal fails and is accordingly dismissed.