JUSTICE SHAH ABDIJR RASHID (CHAIRMAN).--This consolidated order will dispose of the following four appeals, in which identical questions are involved :-
(1) Appeal No. 11 (L)/81, Mohammad Rafiq v. WAPDA:
(2) Appeal No. 12 (L)/81, Hakim Ali v. WAPDA.
(3) Appeal No 13 (L)/81, Mukhrar Ahmad v. WAPDA.
2. All the four appellants allegedly committed acts of misconduct, inasmach as they, by becoming party to the preparation of fictitious and bogus figures of line losses of the electric power deprived the WAPDA, the respondent herein, of considerable amount They were charge-sheeted on 19-6-1978. Their replies to the charge-sheet were submitted on 27-6-1978, and after inquiry by the Inquiry Committee, they were dismissed from service by the Executive Engineer on 24-12-1978. They filed an appeal on 26-12-1978 to the Executive Engineer, which he refused to entertain by order dated 3-2-1979, by observing that the appeal lay before the Superintending Engineer. In the meantime, prior to the receipt of reply from the Executive Engineer, they approached the Labour Court challenging their order of dismissal on 17-1-1979, but the Labour Court dismissed their appeal on 22-1-1980 for want of jurisdiction. They also preferred a regular departmental appeal to the Superintending Engineer on 7-5-1979, to which no reply was received and the appellants filed appeals before the Tribunal which were dismissed on 4-11-1980 as time--barred.
3. The departmental appeals which had been filed before the Superintend--ing Engineer on 7-5-1979 remained undecided- till the decision of the Tribunal, but on 10-1-1981, the Superintending Engineer informed the appellants separately that their appeals have been dismissed. After the receipt of this order, all the appellants have again approached this Tribunal under section 4 of the Service Tribunals Act, 1973.
4. The learned counsel for respondent WAPDA has raised a preliminary objection that the appeals of the four appellants having been previously dismissed by the Tribunal, fresh appeals on the same grounds could not be filed. The appellant's case, however, is that the previous appeals were filed against the original order of the Executive Engineer dismissing them from service, and that since the Superintending Engineer has now disposed of their appeals they have again come to the Tribunal. It was contended that now when their departmental appeals have been decided on 10-1-1981, a fresh cause of action has accrued to them, specially when their previous appeals were not decided on merits.
5. Section 4 of the Service Tribunals Act, 1973, enables a civil servant to file an appeal if he is aggrieved by any final order, whether it is original or appellate. The first set of appeals was obviously from a final order which was original, while the second set of appeals, which we are now to dispose of, is from the appellate orders. It has been held in many cases by this Tribunal and the view has been confirmed by the Supreme Court in the case of Kadir Bux v. Province of Sind (1982SCMR82 that if a civil servant is aggrieved by an order adversely, affecting him, he cannot come to the Tribunal without first filing a 'departmental appeal or representation and that if no reply to the appeal or representation, as the case may be, is received for 90 days, then he can approach the Tribunal within 30 days of the expiry of 90 days. This view has been taken on the interpretation of proviso (a) to subsection (1) of section 4 of the Service Tribunal Act, 1973. The Tribunal has also held and the Supreme Court has upheld the view in the same case that there are two alternatives for an aggrieved civil servant. One is that he should within 30 days of the expiry of period of 90 days, after the filing of departmental appeal or representation, should come to the Tribunal or take the risk of awaiting a reply to such appeal or representation, and then come to the Tribunal within 30 days from the decision of the same. There is no dispute that the first set of appeals was dismissed, as the appellants had not come up before the Tribunal within 30 days after the expiry of the waiting period of 90 days.
6. In our view, the question of the present appeals being barred by the principle of res judicata does not arise because the Superintending Engineer by dismissing their appeals departmentally gave them a fresh cause of action to come to the Tribunal. In the case of Kadir Bux v. Province of Sind, the Supreme Court had approved the observations of the author of the discourse in the Harward Law Review, 1949/50, Vol. 63 Hear ward Law Rev., which is to the following effect :- "Although there is some dictum to the contrary, it seems to be firmly established that a saving clause in a statute of limitations permitting a new action to be brought within a specified period after failure of the original action for some reason other than on the merits is generally considered as extending, rather than abridging, the general statutes of limitation (illegible) the limitation period remaining after the failure of a prior action is greater than the period allowed by the saving clause, the plaintiff will not be restricted to the latter period in bringing a new action Inasmuch as an action is deemed to be pending until its final disposi--tion upon appeal, in the majority of jurisdictions, it is held that an appeal from a judgment which supersedes, tolls the running of the statute of limitation against the judgment during the pendency of the appellate proceedings."
On the ratio of the above observation, we have no hesitation in holding that the appellants have every cause of action to bring fresh appeals to this against the order of the Superintending Engineer who dismissed Tribunal as their appeals.
7. The matter, however, does not end here. This Tribunal while deciding the previous appeals specifically held that the appeals filed by the appellants before the Superintending Engineer on 7-5-1979 were barred by limitation. The learned counsel for the appellants, however, contends that the time spent before the Labour Court needs to be excluded This plea was taken in the first set of appeals also, but was not accepted by the Tribunal and rightly so, because the law was then well-settled that the Labour Court in the case of the employees of WAPDA had no jurisdiction as they were civil servants for the purposes of the Service Tribunals Act, 1973. It cannot be said that the appellants were pursuing remedy before the Labour Court in good faith to satisfy the provisions of section 14 of the Limitation Act, 1908. In fact, in the first set of appeals also, the contention of the appellants that they were pursuing the remedy in good faith before the Labour Court was not accepted. The appellants also appear to have realised their mistake when they filed the appeal to the Superintending Engineer on 7-5-1979 before the Labour Court dismissed their appeals for want of jurisdiction This all shows that the appellants had not taken due care and caution in going to a forum which had no jurisdiction to entertain their appeals, and therefore, their action cannot be held to be bona fide. Since the appeals before the departmental authority were hopelessly barred by time having been filed over four months after the order of dismissal, the Superintending Engineer has rightly dismissed them, and on that ground alone, therefore, we uphold the order of Superintending Engineer, and dismiss all these four appeals with costs.
8. Parties to be informed.