' CH. HASAN NAWAZ (MEMBER).--While working as Meter Inspector-I, in Wazirabad Sub-Division, the appellant was placed under suspension, by order dated 4-3-1979 (Annex. A), on account of certain allegations which were later conveyed to him by way of regular charge-sheet on 27-8-1979 (Annex.
B), accompanied by a statement of allegations.
2. These were the allegations which, constituted a basis for the disciplinary proceedings:
(1) That while posted as Meter Inspector Grade-I, at Wazirabad Sub-Division, you received Rs,500 from consumer Mr. Barkat Ali of Flour Mill (Atta Chakki) A/c No, WH-52(i) situated at Lakarmandi, Wazirabad as illegal gratification and reversed his meter and fixed bogus seals. This was testified by the S.D.O. M&T vide his letter No, 307-10, dated 15-3-1979. The consumer named Barkat Ali also gave in writing to the S.D.O.
(2) That you asked the M.Rs, of Wazirabad forcibly to pay you bribe of Rs,200 each per month for giving them shelter in stealing of energy. The M.Rs, have given in writing to this effect to the S.D.O.
And have made complaint to him about your misbehavior.
(3)That on receipt of your suspension order issued vide this office order No, 10, dated 4-3-1979, you misbehaved with the S.D.O. In the presence of all the staff members.
3. In his written statement dated 10-9-1979 (Annex. C) filed in defence, the appellant denied all the charges against him. He pleaded that he never received any illegal gratification either from Barkat Ali consumer or from the Meter Readers, Wazirabad Sub-Division and that he was falsely involved in this case by Syed Ejaz Hussain Shah, S.D.O. Because of enmity which was due to the detection, by the appellant, of connection A/c No, AB-1161, illegally installed at the instance of the S.D.O. With the connivance of his technical staff.
4. Mr. Iqbal Jan, Technical Officer (Store) was appointed as Inquiry Officer to go into the allegations made against the appellant who was served with second show-cause notice dated 4-12-1979 (Annex. D) along with Inquiry Officer's report dated 20-11-1979 (Annex. E) where the following findings were recorded: "(1) Severe action should be taken against the B.D. Named Muhammad Rafique of Ghakkar Sub- Division under Cantt: Division, Gujranwala .Under E & D Rules as he is habitual culprit as shown in his personal file." (EP B.D. Attached).
(2) Mr. Anwar Mahmud may be re-instated in his service after imposing upon reasonable punishment under E & D Rules.
(3) "It is also requested here that either S.D.O. Or M.I. May be transferred from this Sub-Division in interest of authority to smooth running of departmental work."
5. On 18-12-1979, after he had been served with notice dated 4-12-1979 alongwith the Inquiry Officer's report dated 20-11-1979, the appellant made an application (Annex. F), where he asked the respondents to inform him whether the WAPDA (E & D) Rules, 1978, had the approval of the Government. He said that he would submit a reply to the second show-cause notice on receipt of this information. Again on 25-2-1980, he addressed another application to the respondents where he requested that he may be allowed to examine the file of the Inquiry Officer to be able to plead to the second show-cause notice (Annex. G). He was not, however, allowed to make any such inspection of the record of Inquiry Officer's proceedings.
6. In spite of Inquiry Officer's findings, however, the appellant was dismissed from service by respondent 1 on 17-4-1982 (Annex. H) after taking into consideration, as the order would make us believe, the charge-sheet with a statement of allegations, appellant's written statement in defence, inquiry report, second show-cause notice and the comments of Superintending Engineer, Gujranwala Circle, on his written statement dated 10-9-1979. (Annex. H).
7. It may also be mentioned as a relevant fact that in consequence of a Writ petition before the High Court against the order of his suspension dated 4-3-1979, he was re-instated by the respondent on 3-12-1981 and posted in Nankana Sub-Division East Shcikhupura.
8. On 17-4-1982, the appellant served the respondent with a grievance notice (Annex. J) which, having gone without any response, was followed by a grievance petition (Annex. K) under section 25-A of the Industrial Relations Ordinance, 1969, accepted on 25-10-1982 by the Labour Court concerned (Annex. L) with the direction that he may be reinstated in service with back benefits, within ten days of the passage of the circler.
9. After the passage of more than a year, on 27-24984, the Labour Court order dated 25-10-1982, was challenged by the respondents before the Lahore High Court in a writ petition (Annex. N), on the contention that the appellant was a civil servant and thus beyond its jurisdiction. The respondent's written statement before the Labour Court (Annex. M) has been filed to show that they had not raised any objection against its jurisdiction.
10. According to the appellant's case, it was the aforementioned Constitutional petition which led him to the Service Tribunal on 1-3-1984 with the present appeal under section 4 of the Service Tribunals Act, 1973 where the validity of the order of dismissal has been challenged on the ground that no proper inquiry had been held in accordance with law and that in any case, it was passed in spite of the findings of the Inquiry Officer exonerating him of the charges.
11. On 20-3-1986, the appellant filed another appeal before the Tribunal (76(L)/84) under section 4 of the Act, for the same relief and on the basis of the same allegations, which had been relied upon in the earlier appeal.
12. The subsequent appeal has the following pleadings in the background: "Previously, it was held by the Tribunal in a number of cases that grievance notice under section 4(a) of the Industrial Relations Ordinance, 1969, served the purpose of a departmental appeal, However, the appellant was informed by his counsel that the Tribunal had changed its view in a recent case where it was held that a grievance notice under the Ordinance did not amount to a departmental appeal, under Rule 11 of the WAPDA (E & D) Rules, 1978 so as to fulfill the jurisdictional requirements of section 4(1)(b) of the Act. Accordingly on 20-11-1985, a departmental appeal was submitted to respondent-2 with the prayer that it may be considered on merits and the delay in filing that appeal may be condoned in view of the circumstances of the case." (Annex. J). After waiting for the mandatory period of ninety days, he filed the subsequent appeal on 20-3-1986."
13. The account of material facts will be complete if it is mentioned that earlier appeal No, 105(L)/84 was amended by the appellant with the Tribunals permission and the amended appeal was filed on 12-4-1987; which seems to have been done by way of abundant caution with a view to get the necessary relief in any of the appeals. In the amended appeal, as well, the delay in filing the departmental appeal is sought to be condoned under the circumstances.
14. Since both the appeals have been filed by the same person,for the same relief, on identical grounds, it goes without saying that they will of course be dealt with and disposed of in the same judgment.
15. We might as well take notice of few other facts, which make this case slightly different in characteristics. As already mentioned, the appellant challenged the validity of the order of his suspension dated 4-3-1979 in a Constitutional petition before the High Court and he was reinstated in service by order dated 13-12-1981 and posted in Nankana Sub-Division (E. WAPDA) District Sheikhupura. Subsequently, he seems to have remained in the respondents' employment on the strength of the Labour Court order dated 25-10-1982, after which he had been working as Meter Inspector-1, Sangla Hill Sub-Division (E) WAPDA District Sheikhupura. It appears from his application under section 7 of the Act, for condo nation of delay that he retired on 27-8-1987, after availing of leave preparatory to retirement due to him on attaining the qualifying service of 25 years.
16. On merits, the appellant does not appear to have a bad case, evidently because of the fact that he was dismissed from service in spite of exoneration by the Inquiry Officer and also because the competent authority seems to have been influenced by the comments of the Superintending Engineer of Gujranwala Circle on his reply in defence dated 10-9-1979 which were not supplied to him along with the inquiry report, to enable him to render an explanation and defend himself against the proposed action. Even otherwise, the penalty of dismissal was somewhat harsh in view of the findings of the Inquiry Officer. Taking all these facts into consideration, it could have been a case at least of further inquiry from the stage the irregularity came about, which is not now possible because of the appellant having gone on retirement.
17. Apart front the aforesaid factual aspect of the matter, the most important point in this case is that the appellant filed his earlier appeal No, 105(L)/84 without fulfilling the jurisdictional requirements of section 4(1)(b) of the Act, no departmental appeal under Rule 11 of the WAPDA (E & D) Rules, having been filed. The appellant's malady reflected from his subsequent conduct in filing another appeal in 1986 after preferring a departmental appeal is quite understandable. He filed appeal No, 76(L)/1986 on account of fear that his earlier appeal may be dismissed as being incompetent under section 4(1)(b) of the Act for want of fulfillment of jurisdictional requirements.
He seems to have relied upon the fact that in the second appeal he will ask for condemnation of delay in filing not only the regular appeal before Tribunal but also the departmental appeal which he has in fact done. He took another precautionary measure as has already been noticed in the earlier part of this judgment. It is that he amended his earlier appeal with the permission of the Tribunal on 12-4-1987, which was obviously done in view of an apprehension that the subsequent appeal of 1986 may fail because of limitation and in the earlier appeal it was easier for him to seek condo nation of delay in filing the, appeal as well as the departmental appeal.
18. However, we are constrained to say that it is not possible to grant the requisite relief in spite of the appellant's precautionary measures. The first appeal was incompetent because of having been instituted without fulfilling the jurisdictional requirements of section 4(1)(b) of the Act. The grievance notice served on the respondents through application dated 17-4-1982 did not serve the purpose of a departmental appeal and we have a feeling that the appellant should be deemed, under the circumstances, to have been conscious of this fact. Had it not been so, he would have mentioned it in his first appeal that he had not filed the departmental appeal because his grievance notice had served its purpose. Be that as it may, it is now settled law that such a notice is not the same as a departmental appeal and that it was insufficient to fulfil the jurisdictional requirements. (1987 SCMR 1936).
19. Therefore, Appeal No, 105(L)/1984 are liable to dismissal as being incompetent and we do not have the jurisdiction to decide it. As for the second appeal, even there the appeal cannot succeed because the facts of the case bring about no justification for condemnation of delay. In the first place, it is not possible to appreciate how the second appeal could lie during the pendency of the first appeal on the same cause of action seeking the same relief. Be it as it may, the fact remains that material thing about the second appeal is the delay of departmental appeal filed so late as on 20-11-1985, almost three and a half years after the passage of impugned order on 17-4-1982.
There is no justification whatever for condo nation of this delay, for the simple reason that the appellant should have filed this departmental appeal before the institution of his earlier Appeal No, 105(L)/1984, after he had become aware of the fact that the Labour Court's order dated 25-10-1982, had been challenged in the High Court in a constitutional petition filed on 27-2-1984 on the ground that he was a civil servant. As a matter of fact, it appears from his pleadings that he wasted no time in coming to the Tribunal and he did not even wait for the decision of the High Court; which makes it clear that he had become aware of his status as a civil servant. This awareness should have been sufficient to lead him to the institution of departmental appeal before coming to the Tribunal, to fulfill its jurisdictional requirements, as laid down in Muhammad Latif Bhatti's case by the Supreme Court 1987 SCMR 1936. His explanation of having failed to do so is the belief that grievance petition had been treated in some of the cases as a departmental appeal. But this explanation is by no means sufficient. His promptness in coming to the Tribunal without waiting for the High Court's decision on the respondent's Constitutional petition regarding his status, rather postulates the presence of a sudden and sure awareness that he is a civil servant and that he must fulfill the statutory requirement of filing the departmental appeal before having recourse to the Tribunal; moreso when it had been unequivocally declared by the Supreme Court in another case in the year 1983 that the WAPDA employees are civil servants under section 17(1B) of the WAPDA Act, 1958. This being the position, it is not possible to disregard the clear provisions of law and make them a dead letter.
20. The appellant's reliance on this Tribunal's earlier judgments cannot be of any avail to him, for the reason that they were passed on distinguishable facts. He relied on one of the cases where appeal under section 4 of the Act was filed on the same date as the departmental appeal, which is clearly distinguishable.
21. In this view of the matter, both the appeals are dismissed as being incompetent under section 4(1)(a) of the Act and barred by limitation. There will be no order as to costs.
22. Parties to be informed.