Ch. Shahid Naseer , Member .--Briefly stated the facts of the instant service appeal are that, the appellant was awarded major penalty of dismissal from service alongwith recovery of Rs. 1279300/-by the Respondent No. 1 (BS- 19) being a Competent Authority , vide impugned order dated 16.9.2014. The appellant preferred departmental appeal to the Respondent No. 2 (BS-20) i.e. next higher authority , on 12.11.2014. Subsequently , the Respondent No. 4 issued the second impugned order on 30.7.2015, on the direction of PMG (BS-20). The appellant filed his departmental appeal to PMG (Punjab Province) (BS-21) on 17.4.2017 against the impugned order issued by the DSPS (BS-17) on the direction of PMG Central Punjab (BS-20) and inspite of forwarding the same to PMG (Punjab) (BS-21), he himself decided and rejected it on 18.5.2017 inspite of fact that he was not the Appellate Authority against the order issued by the DSPS (BS-17) and the next higher authority was Deputy Postmaster General (respondent No. 1) and he had already showed his compulsion being an Appellate Authority and never decided the first appeal, hence he violated the doctrine of "Estoppel".
2. The learned counsel for the appellant has argued that the impugned order of "Dismissal from Service" is illegal and ex-parte. As per Rule-7, mentioned in second impugned order exercised by the Respondent No. 2 is not a statutory rule of service as the same is a Para as explained on next page No. 220 of Volume III that was obtained from Para No. 77 of Guide Line issued by the D.G, PPO in 1980. The Appellate Authority can only set aside /modify or confirm the order of Authority under Rule-6(c) of The Civil Servants (Appeal) Rules, 1977 and there is no provision of law under which higher Authority or Competent Authority has been empowered to cancel or withdraw the punishment orders that had attained finality and legal effect, as per verdict, on the subject, of the Hon'ble Supreme Court of Pakistan that "An order issued by the Competent Authority can be recalled, rescinded amended or varied under Section-21 of General Clauses Act only if final step thereto had not been taken. Where an order of penalty had been issued, executive authority would have no locus poenitantiae to recall such order without affording opportunity of hearing to affected person. Principle of audi alteram partem should be strictly adhered to."
Reliance has been placed on 2004 SCMR 158, 2009 SCMR 775. No notice was issued to the appellant before withdrawal or recalling the penalty order dated 16.9.2014 and thus the appellant was condemned unheard, which is against the cannons of Natural Justice. Reliance is placed upon 2005 SCMR 1814 , PLD 1994 Lahore 353, 2004 SCMR 316 .
3. The learned counsel for the appellant has further contended that the direction issued by the PMG is not valid under the rules. No second dismissal order of appellant can be issued without reinstatement of official. When the Inquiry Officer submitted his report or Authorized Officer recommended his penalty , while the appellant was under suspension, he should firstly be restored on his anti-status/previous position. The Competent Authority issued the impugned order dated 30.7.2015, received on 5.4.2017, on the same allegations under the direction of superior Authority (PMG Central Punjab). The Department's own Rule 12-A(3) of PO Manual (Volume-II) debars higher authority to issue any direction to Competent Authority , which says "a penalty can be imposed only by the designated authority or designated authorized officer . In no circumstances should an officer than the designated one issue any direction in regard to the penalty to be imposed. Neither should a competent authority obtain the guidance or consent of any superior authority in this respect ". As such, he prayed for the acceptance of this appeal.
4. The respondents have vehemently contested the appeal by clarifying that the appellant served with a Charge Sheet by the Authorized Officer /ASPS, Chunian Sub Division on 26.2.2014, on account of misappropriation of amount of Rs. 12,79,300/- of bogus Money Orders by making payment to unknown persons without any witness/proper verification in violation of Rule-706(6) of PO Manual Volume-VI. An Inquiry Officer was nominated to probe into the matter by the Authorized Officer. The Inquiry Officer fully proved all the allegations in his Inquiry Report dated 5.6.2014, against the appel lant. The Authorized Officer issued secon d Charge Sheet to the appellant on 19.6.2014. He submitted his defence statement to the Authorized Officer on 15.7.2014 and was heard in person on 23.7.2014. The Authorized Officer submitted the case to Competent Authori ty /Deputy Postmaster General (Operation) Central Punjab Circle, Lahore for imposition of major penalty on 4.8.2014. Two opportunities of personal hearing were afforded to the appellant on 8.8.2014 and 29.8.2014 and going through the case, the Competent Authority imposed the penalty of "Dismissal from Service" on 16.9.2 014. Afterwards, the order was recalled on technical grounds because the same was not passed by the Competent Authority . So the fresh personal hearing was called on 25.5.2015, 29.5.2015, 16.6.2016 and 6.7.2015, but the appellant badly failed to appear before the Competent Authority/DSPS. The appellant did not prefer departmental appeal against the impugned orders within time. The order was dispatched on 11.8.2015, on the given mail address. The Postmaster Pattoki also reported that the Article has been delivered on 13.8.2015. The Respondent No. 2, informed through an order dated 18.5.2017 that the impugned order delivered to the appellant on 13.8.2015 and his departmental appeal received in his office on 19.4.2017 after one year and eight months being barred by time. The punishment orders issued to appellant is quite justified according to the gravity of the offence committed by the appellant, who was the main culprit and his name was included in the FIR by FIA. His case is under trial in the Special Court, Lahore.
5. Arguments heard. Record perused.
6. The elaborate perusal of the record transpires that on 26.2.2014, a Charge Sheet alongwith Statement of.
Allegations was served upon the appellant, under the charges, inter alia, misappropriation of an amount of Rs.
21,79,300/- through making payment to un-known persons without any witness and proper verification in respect of some Money Orders as well failed to perform his legitimate duties. A detailed inquiry was conducted and the allegations became proved. A Show-Cause Notice was issued and vide order dated 16.9.2014, the Deputy Postmaster General imposed a penalty of Dismissal from Service with immediate effect and recovery of embezzled amount of Rs. 21,79,300/-. Against the said impugned order , a departmental appeal dated 12.11.2014 was preferred. Thereon, vide order dated 20.5.2015, the Postmaster General observed as under: "I have gone through the whole case in detail and examined the Charge Sheet, Inquiry Officer, Show-Cause Notice, Defence Statement, statement recorded during personal hearing and other relevant documents and come to the conclusion that the punishment awarded by Dy. PMG (Op) CO Lahore in the capacity of Authority is invalid and incompetent as only the DSPS Lahore Division is competent to issue such orders. So by these means I am not in a position to decide the instant appeal of the appellant as Appellate Authority . I in the capacity of Head of Circle orders under Rule No. 7 of Appendix No. 9 of Volume III, to recall /withdraw the punishment orders issued vide Memo No. G.2/Bogus MO's /LD dated 16.09.2014. The DSPS Lahore Division should proceed against the official from the instant when the enquiry officer had submitted the case to DSPS Lahore Division for decision. The Competent Authority i.e. the DSPS Lahore Division should issue a fresh letter to the official for personal hearing and decide the case."
7. In compliance, DPS issued some notices to the appellant for appearing before him for personal hearing and the last notice was issued' on 6.7.2015, therein it has been clearly mentioned that "now you are once again finally directed to appear before the undersigned on 10.7.2015 for personal hearing otherwise the case will be decided ex parte." Even then the appellant did not bother to appear before the DSPS. Resultantly , on 30.7.2015 considering the Inquiry Report and the other relevant documents imposed a major penalty upon the appellant "Dismissal from Service," which is a detailed order . The copy of the said order , dated 30.7.2015 despatched to the appellant on the same date. But from the appellant side no departmental appeal was moved against the impugned order dated 30.7.2015. The appellant for the first time through an application dated 16.10.2015- asked for providing the previous appellate order and the dismissal also. Thereon, DSPS vide letter dated 26.10.2016 informed the appellant i.e. "you are informed that your dismissal order was dispatched vide Lahore Cantt: NPO Rl. No. 1347 dated 11.8.2015, the Postmaster Pattoki also reported for the article has been delivered on 13.8.2015 ". Even then the appellant again sent a letter to the DSPS on 1.11.2016 about non-receipt of dismissal order. On 28.11.2016, he moved a representation against non-supply of dismissal order by the DSPS, Lahore Division, Lahore. Subsequently , from the respondents' side, letters dated 16.2.2017, 22.2.2017, 17.3.2017 and 20.3.20 17 were issued to the appellant and in the last letter dated 17.3.2017, a reference of letter dated 22.3.2017 was made and asked the appellant to see the DSPS, Lahore Division, Lahore on any working day for the purpose. Thereafter , the file is 'silent from the appellant's side whether he derived a copy of the impugned order on the same date or not However , he moved a representation against the impugned order dated' 30.5.2017 as alleged therein, received on 5.4.2017 by hand. In this regard, no written proof has been attached with the file. The aforesaid correspo ndence reflects the mala fide on the part of the appellant that he on different pretexts tried to delay the matter . The proof of the same is on the record that despite issuance of so .many notices by the DSPS, he never bothered to appear before him for personal hearing. The worth noting point is that it was in his knowledge that the Postmaster General passed an order on 20.5.2015 to DSPS after issuing notice to deal with this matter . In the said order , he has categorically mentioned that under Rule No. 7 of Appendix No. 9 of Volume III, he has the capacity as Head of Circle to recall /withdraw the punishment order issued on 16.9.2014.
8. Despite, repeatedly issuance of notices to the appellant, nobody appeared and finally on 17.4.2017 the appellant submitted his representation against the impugned order dated 30.7.2015. Thereon, the Appellate Authority passed the following order:- "The punishment of "Dismissal from Service" was awarded by DSPS Lahore Division on 30-07-2015 was delivered to the official on 13-08-2015 and his appe al received in his office on 19-04-2017 after one year and 8 months. The appeal is time barred, thus filed. Please inform the appellant accordingly ."
From the appellate order and the correspondence, it is proved that a copy of the impugned order had been delivered to the appellant on 13.8.2015 and in this regard competent and responsible officers/of ficials submitted their reports. His appeal was dismissed as being barred by time and in this regard, reliance is placed on Zia-ur - Rehman v. Divisional Superintendent, Postal Services, Abbottabad and others (2009 SCMR 1121), whereby it has been observed that "It, is settled principle of law that when appeal of the employee was time-barred before the appellate authority then the appeal before the Tribunal was also not competent on that count in view of the various pronouncements of this Court including the following judgments:--(1) Chairman PIA and others v. Nasim Malik PLD 1990 SC 951 (2) Muhammad Aslam v. WAPDA and others 2007 SCMR 513. It is a settled principle that when an appeal is required to be dismissed on limitation its merits need not be discussed. Reliance placed is placed on Raja Khan v. Manager (Operation) Faisalabad Electric Supply Company (WAPDA) and others (2011 SCMR 676). To fortify the said principle, a case-law Muhammad Aslam v. WAPDA and others (2007 SCMR 513), is also referred, wherein it has been observed that appeal of civil servant having been rejected by the Department, the presumption would be that it had been rejected both on limitation as well as on merits ... if departmental appeal was not filed within the statutory period, appeal before Service Tribunal would not be competent, hence, for the foregoing discussion we are of the view that this appeal is neither maintainable nor compete nt, as being time barred and the same is dismissed accordingly .
9. No order as to costs.