MUHAMMAD IRSHAD KHAN (MEMBER).-The appellant, then a Time Scale Clerk in the Office of Divisional Engineer Telephones, Sialkot, was suspended on 1.4-1979. A charge-sheet dated 16-6- 1979 accompanied by a statement of allegations, was served upon him whereby he was required to submit his explanation within 14 days of the receipt of the charge-sheet as to why disciplinary action should not be taken against him for the charges mentioned in the charge-sheet and elaborated in the statement of allegations.
2. On receipt of the charge-sheet, the appellant pointed out certain alleged irregularities in the charge-sheet vide his letter dated 25-6-1979 to the Divisional Engineer Phones, Sialkot, respondent No. 2 herein, who, according to the appellant tried to rectify the errors vide his letter dated 1-9-1979.
Thereafter, the appellant requested for the supply of attested copies of certain documents, which, according to him, were necessary for giving a reply to the charge-sheet, but the same were never provided to him. According to the respondent, it was not necessary to provide the copies of those documents to the appellant as he himself had forged and prepared the relevant record. However, he was asked by the Divisional Engineer Phones, Sialkot, to inspect the relevant record, which he did. The appel--lant contends :o have furnished a reply to the charge-sheet, but he was not provided any opportunity to cross-examine the witnesses or to place his defence before the Inquiry Officer, rather he, all of a sudden received an order of dismissal from service dated 16-12-1979. The case of the respon--dent is that no reply to the charge-sheet was ever received from the appel-- lant who was even directed by the Inquiry Officer also vide his express telegram No. KT/1.230/ 27th August, 1979 and C/M No. TEP/CON., to submit his defence within seven days positively otherwise the Inquiry report will be submitted to the General Manager, Central Telecommunication Region, Lahore. 'Not only this, but the appellant was again required by the Divisional Engineer Phones, Sialkot, vide his letter dated 1-9-1979, to submit his defence by 6-9-1979, otherwise ex parse proceedings will be taken against him. But the appellant failed to submit his defence nor he ever requested for a personal hearing while in the charge-sheet, the appel--lant was specifically required to state whether he desired to be heard in person and adduce any evidence or witness in his defence. Thus, in spite of the full opportunity provided to him, the appellant did not associate himself with the inquiry proceedings as he did not at all appear before the Inquiry Officer. The Inquiry Officer, having gone through the cast and after thorough investigation, gave his findings that all the 13 'allegations mentioned in the statement of allegations stood proved against the appellant and accordingly he was dismissed from service by the competent authority.
3. The appellant did not prefer any appeal or representation against the impugned order to the competent departmental authority. However, one Khalid Latif Khan, General Secretary, Pakistan Post Office Employees Union (Regd.), Sialkot Division, sent a grievance notice dated 22 December, 1979 under section 25 (A) of the Industrial Relations Ordinance, 1969 to the respondent No. 1.
Thereafter, a petition under section 25(A) of the Industrial Relations Ordinance, 1969 was filed before the Punjab Labour Court No. 7. The said petition was dismissed by the learned Labour Court for lack of jurisdiction, vide its order dated 28-4-1980. The learned council for the appellant raised s number of grounds for challenging the impugned order.
4. The learned counsel for the respondents, while defending the impugned order on merits also, raised a preliminary legal objection that the present appeal is not maintainable being barred by limitation as well as by proviso (a) to section 4(1) of the Service Tribunals Act. 1973. We would first examine the question of applicability to, and effect on, the present case of the proviso (a) to section 4(1) of the Service Tribunals Act. The relevant provision is reproduced below :- ".4. Appeals to Tribunals.-{I) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him, or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal Provided that-
(a) where an appeal, review or representation to a depart--mental authority is provided under the Civil Servants Act, 1973, or any rules against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or represen--tation to such departmental authority and a .Period of ninety days has elapsed from the date on which such appeal, applica--tion or representation was so preferred; ".
5. A plain reading of the above provision shows that if an appeal or representation against the impugned order is provided under the law to a departmental authority, no appeal shall lie to this Tribunal unless the aggrieved civil servant has preferred an appeal or representation, as the case may be to the competent departmental authority. According to a dictum laid down by the learned Supreme Court of Pakistan in C. Appeal No. K-106/79, even a final order should not be brought before the Service Tribunal if aright of appeal, review or representation is provided under the law, unless that right has been availed of. 1n the instant case, the undisputed position is that the appellant had never submitted any appeal or representation to the competent departmental authority. A grievance notice, under the Industrial Relations Ordinance, from the General Secretary of a Union, by no stretch of imagination can be consi--dered as a departmental appeal. An obvious conclusion, therefore, would be that the present appeal is incompetent being barred by the proviso (a) to section 4 (1) of the Service Tribunals Act, 1973.
6. The objection of the learned counsel for the State regarding limita--tion also carries much force, though there is, on record, an application of the appellant seeking condonation in delay in filing thend present appeal on the ground that the delay occurred due to his pursuing remedy before the Labour Court, which in our view, is not a sufficient cause to justify condo nation of delay. The appeal deserved to be dismissed as barred by limitation also.
7. For the foregoing reasons, the appeal must fail and is accordingly dismissed as incompetent as well as barred by limitation.