' By this appeal filed on 9th April, 1980 the appellant a Chowkidar of Lahore General Hospital, Lahore seeks to challenge the order of Deputy Medical Superintendent dated 27th August, 1978 terminating the services of the appellant with effect from 28th July, 1978 on the charges of misconduct under E and D Rules, 1975.
2. The Department in the written statement has raised two preliminary objections namely, that the appeal is barred by time and also the appellant has failed to file representation against the impugned order to the next higher authority, i.e. Head of the Institution namely, Medical Superintendent, Lahore General Hospital.
3. The appellant with regard to first objection has filed an application for the condonation of delay on the grounds that he had filed a representation to the Secretary, Health Government of the Punjab on 30th August, 1978 and al so a representation to the M.S. Lahore General Hospital on 28th September, 1978. The appellant has sought the condonation of delay on the grounds that he in the first instance filed an appeal before the Labour Court No. 2, Lahore but the same was returned to him under Section 25-A. Of the Industrial Relations Ordinance as he was declared to be civil servant vide Notification dated 20th September, 1979 which came to his notice on 7th November, 1979. Thus his appeal under the Industrial Relations Ordinance, 1969 was returned to him by the Industrial Court. With these submissions the appellant submitted that the delay merits to be condoned.
4. In reply the Department, however, denied to have received any representation dated 26th September, 1978 and it was rather submitted that the representation to the Secretary, Health was rejected on 5th November, 1978 and a copy of the decision was endorsed to the appellant on 14th November, 1978. Thus the only representation filed to the Secretary, Health stood rejected in November, 1978 and the appeal filed on 9th April, 1980 was thus time-barred. The appellant, however, has denied the receipt of the letter dated 14th November, 1978.
5. After hearing both the parties we are of the view that the appellant has failed to produce any evidence that he represented to the M. S. Against the order of D. M. S. General Hospital terminating his services. The only representation filed by him to the Secretary, Health stood rejected on 5th November, 1978 a copy of which was endorsed to him on 14th November, 1978. We are inclined to accept that the appellant had been intimated the rejection of his representation by the Government. Moreover, the representation to Government could not be regarded to have been made to the proper authority. Under the Delegation of Power, Rules the next higher authority was M.S. General Hospital to whom the appeal lay against the order of D.M.S. The representation filed to the Secretary, Health could not be availed of by the appellant to overcome the objection as to the maintainability of the appeal. We are not satisfied that the appellant had filed the representation to the proper authority, i.e. M. S. General Hospital as required vide proviso (a) to Section 4 of the Punjab Service Tribunals Act, 1974. The conclusion above is full supported by the following observation from the judgment of Supreme Court of Pakistan reported as PLD 1979 S. C. 856 (relevant at page 861):- "Learned counsel then argued that his client again approached the Secretary against the order dated 23rd June, 1976 and also made representation to the Education Minister and the Martial Law Authorities, as pleaded by him in para. Of his appeal before the Tribunal, therefore, he could in this way be considered to have filed the appeal before the competent authority, namely, the Chief Secretary. This plea has no merit. The order to be appealed against was that of 23rde 1976 against which no appeal in time or in any competent from vise. Chief Secretary was filed and mere representation of the petitioner here and there could not be a substitute of the requisite appeal. In this view of the matter the other finding of the Tribunal that appeal against the relevant order before it was barred, is also correct."
In any case the representation to the Secretary, Health stood rejected in November, 1978 and the appeal filed in April, 1980 as discussed above is barred by time. Even after allowing the time consumed before the Labour Court the appellant did not appear to have acted diligently in as much as it took about a week to file this appeal. This is not a reasonable time. The case was initially filed with the Labour Court after due preparation and the appellant could the same before us within a couple of days at the most. Thus the preliminary objection is upheld and the appeal is dismissed in limine.