' CH.HASAN NAWAZ (MEMBER).--While he was working as Lineman-II, Construction Sub-division WAPDA, Sheikhupura, the appellant was served with show cause notice dated 21-3-1982 (Annexure-B) which involved a charge in respect of the year 1979-80.
2. It appears from the record that the inhabitants of village Nangal Doona Singh applied in January, 1979 to the concerned authority for.Electrification of the village. During the proceedings which ensued, a technical data/feasibility report was submitted by SDO (E)-II, Gujranwala. After verification by Mr.M.Lbrahim Ghouri, LS-I (Construction sub-Division No,II, Gujranwala) and Mr.Nisar Ahmad Shah, SDO, it was stated in the report that the village was at the distance of 2690 feet from 11 KV line, which made the village eligible for supply of electricity.
3. The basis of this notice is inquiry report dated 7-2-1982 (Annexure-R/A) submitted by Executive Engineer, (Construction Division) Electricity, Gujranwala to the Chairman Area Electricity Board, WAPDA, Gujranwala. As I see from the report, he visited the village along with M/s.Mehr Muhammad Zaman, Executive Engineer and Muhammad Jamil, Deputy Director (EP) of the Chairman's office.
During this visit, a complaint was made to them that M/s.Abdur Rehman Contractor, Muhammad Iqbal School Master and Nawab Din of the village paid a sum of Rs,14,000 to Mushtaq Ahmad Cheema, LS-II and Shafique Ahmad Siddiqui, SDO through the appellant. The money had been collected from the village people to be paid as illegal gratification to the aforesaid officers for the purpose of contriving a false report regarding distance of the village from 11KV line, to make the proposal feasible.
4. The show-cause notice served in the back-ground of these facts said that you "acted as a tout and a sum of Rs,14,000 as illegal gratification was given to M/s.Shafique Ahmad Siddiqui, SDO and Mushtaq Ahmad Cheema LS-II through you, and you succeeded in obtaining a wrong report about the distance". It further said that this fact was disclosed by the aforementioned three persons to the officers who visited the village.
5. The appellant submitted his explanation on 12-4-1982 (Annexure-C) where he pleaded that he had nothing to do with the case of Nangal Doona Singh; that he neither demanded nor received money from any person of the village; that he never gave any such amount of gratification either to Shafique Ahmad Siddiqui, SDO or Mushtaq Ahmad Cheema LS-II and that he never managed the submission of false report by these officers.
6. This explanation was supported by an affidavit filed by the aforementioned Rana Abdur Rehman on tractor, Muhammad Iqbal School Master, and Ch.Nawab Din, where it was deposed that they never made any statement before any officer; that they did not pay any money either to the appellant or any other person as illegal gratification or otherwise and that they never made any application against the appellant.
7. The appellant was suspended by Ch.Khadim Hussain, Chairman, Area Electricity Board, Gujranwala with immediate effect from 14-6-1982 "on account of misconduct under Rule 5(i) of the Pakistan WAPDA Employees (Efficiency & Discipline) Rules, 1978". (Annexure-D).
8. Eventually, on 22-9-1982 the Chairman, removed him from service by an order (Annexure-E) which makes the following reading:- " Consequent upon consideration of above defense reply of accused Muhammad Aslam Asi, Lineman-II(U/S) construction sub-Division Shcikhupura, examination of above documents/relevant record and after giving him personal hearing on 16-9-1982, the undersigned finds him guilty of "misconduct" under the Pakistan WAPDA Employees (E&D) Rules, 1978.
' I, Malik Muhammad Ashraf, Chairman, Area Elecy: Board, Gujranwala, as "competent authority" under rule 2(3) ibid have decided to impose upon him major penalty i,e, "removal from service".
Accordingly Muhammad Aslam Asi, Lineman-II, Construction Sub-Division, Sheikhupura is hereby removed from service with immediate effect.
' Unpaid emoluments of the above named individual for the intervening period of his suspension are hereby forfeited."
9. He served the respondents with grievance notice dated 10-10-1982 (Annexure-F) and then filed a grievance petition under section 25(A) of Industrial Relation Ordinance, 1969 on 31-10-1982 (Annexure-G) which was returned on 15-3-1983 for want of jurisdiction by the Presiding Officer of the concerned Labour Court (Annexure-H) for presentation before the proper forum.
10. The present appeal was filed on 2-4-1983 under section 4 of the Service Tribunals Act, 1973, to challenge the validity of order of his removal from service dated 22-9-1982. On the same date the departmental appeal (Annexure-J) was addressed to the General Manager, (Distribution) WAPDA, under rule 11 of the rules against the impugned order.
CONCLUSION ON MERITS
11. In support of the appellant's case it was argued by his counsel that the terms and conditions of his service are regulated by the provisions of the West Pakistan WAPDA (Power) Technical Subordinates, (Line Staff) Service/Recruitments Rules, 1971, made by the Authority in exercise of powers conferred under section 18 of the West Pakistan WAPDA Act, 1958. It was further argued that since the procedure prescribed under rule 18(2) of these rules had not been observed, the impugned order was null and void. Rule 18(2) of the rules provides that subject to the provisions of sub-rule (1), no' order of compulsory retirement or removal or dismissal from service shall be passed without first completing the following necessary formalities prescribed in the Efficiency & Discipline Rules, namely:- "(i) Service of a proper charge-sheet on the accused, accompanied by a statement of allegations against him, giving a reasonable time (not less than 7 days and more than 14 days) for submitting reply thereto; and
(ii) Giving a reasonable opportunity to the accused for being heard in person in connection with the charge sheet served on him and his reply thereto;
(iii) Holding a proper and independent inquiry by an officer senior in rank to the accused (to be nominated by the appointing authority or any other authority authorised to do so under the Efficiency & Discipline Rules applicable to the accused) who is not directly subordinate to a Senior Officer who initially and adversely to the accused expressed investigated in the inquiry;
(iv) Service of a proper show cause notice (except when in the opinion of the appointing authority, for reasons to be recorded in writing, it is not reasonably practicable or, in the case of allegation of subversion, it is not in the interest of security of Pakistan or any part thereof, to give the accused an opportunity for showing cause), alongwith a copy of the Inquiry Report to the accused, indicating the ground on which the penalty is proposed to be imposed on him, and giving a reasonable time (not less than 7 days and not more than 14 days) for submitting reply threto; and
(v) Subject to clause (iv) above, giving consideration to any cause shown by the accused before imposing the penalty."
12. The said rule further provides that any order of removal or dismissal passed without completing the above formalities shall be considered as null and void, except where the accused is compulsorily retired, removed or dismissed from service on the ground of conduct which has lcd to a fine or imprisonment by a Court of law.
13. The argument is that the provisions of 1971 rules are effective, irrespective of the enforcement of WAPDA (Efficiency and Discipline) Rules, 1978. Reliance was placed on a ruling given by this Tribunal on 8-12-1987 in the case of Mukhtar Ahmad v. Chairman, Area Electricity Board, WAPDA, Gujranwala, where it was held that services of the appellant who was also a Line Superintendent, like we have in the present case, were regulated by the 1971 rules.
14. While conceding that the procedure laid down in rule 18(2) of the Rules had not been observed in the present case, I feel that a detailed examination of the question of applicability or these rules is not necessary in view of the fact that even the formalities laid down in rule 5(v)(b) of 1978 Rules have not been complied with by the Authority. Before an address is made to the relevant provisions of these Rules, it may be mentioned here that it is established beyond doubt that the impugned order was in utter disregard of the formalities laid down either in 1971 Rules or 1978 Rules.
15. Rule 5(v)(a) is to the effect that: "(v)(a) On receipt of the report of Enquiry Officer or Enquiry Committee, the competent authority shall consider the same and if on such consideration he is of the tentative opinion that a penalty be imposed upon the accused he shall provisionally determine penalty to be imposed, and shall so inform the accused, supply him a copy of the report, and call upon him to show cause within a reasonable time not less than seven days and not more than fourteen days from the day the notice has been served on him, why the penalty proposed be not imposed. The competent authority shall take into consideration the cause shown by the accused, hear him in person, and determine whether charge has been proved and then notwithstanding anything contrary in any other rule, office order or instructions shall pass such orders as he may deem proper.
' Rule 5(v)(b) provides that:
(b) The above procedure of determining provisionally penalty to be imposed, asking the accused to show cause, and affording him an opportunity of personal hearing shall also apply to cases where the accused was issued. Explanation submitted by him was found unsatisfactory.
16. In the present case show-cause notice dated 21-3-1982 was served under Rule 5(iv)(a) of the Efficiency & Discipline Rules, 1978. It is clear from the record that the impugned order of removal was passed on 22-9-1982 without serving the appellant with a second show-cause notice in terms of rule 5(v)(a) & (b), conveying the competent authority's the tentative opinion regarding imposition of penalty and provisional determination of the penalty. He was neither asked to show- cause against the proposed action, nor afforded an opportunity of personal hearing as required by the Rules. I have no doubt in my mind that the impugned order was passed in palpable offence to and utter disregard of the Rules, and that it resulted in obvious gross miss-carriage of justice. The procedure adopted by the respondents did not have the sanction of the Rules and thus involved a clear denial of justice. It is emphasized that the appellant was never allowed an opportunity to defend himself. The impugned order, in my view, suffers from rank illegality and is, therefore, void and ineffective. It does not exist in the area of law.
17. Another aspect of the matter also deserves an application. As already pointed out, these disciplinary proceedings against the appellant have their source in the Executive Engineer report dated 7-2-1982 (Annexure-R/A). What I gather from this report and the show-cause notice dated 21-3-1982 (Annexure-B), is that the allegation against the appellant was that he obtained a sum of Rs,14,000 from the aforesaid three persons of the village and passed it on to Mushtaq Ahmad Cheema IS-II and Shafique Ahmad Siddiqui SDO. In the Executive Engineer's words, the appellant and the other two officers were found involved in corruption and they had brought bad name to the department. He also said that Mr.M.Ibrahim Ghouri, LS-I and Muhammad Rafique UDC of the Divisional Office were "also guilty of submitting first wrong report".
18. As is evident from the facts, there was positive charge of receiving a sum of Rs,14,000 against the appellant and ultimate passage of this amount to the Line Superintendent and the Sub- Divisional Officer concerned. With the exception of report dated 7-2-1982 (Annexure-R/A), however, there is absolutely nothing on the record to show that any money was paid to the appellant by any person and that he further passed it on to the Line Superintendent and SDO. As already pointed out, there was a positive charge against him, which could have been established only by the production of positive evidence. The achievement of this object could be possible only by an inquiry, followed by a regular charge-sheet with statement of allegations. This was evidently a typical case for evidence and a mere show-cause notice could not have possibly given the appellant an opportunity to defend himself and prove that the allegation against him was baseless. He denied its correctness in very clear terms in his explanation in writing (Annexure-C) and it was the respondent's bounden duty to put the matter to inquiry, where during the course of evidence, he would have had the opportunity of cross-examining the witnesses.
19. Much more so, in view of the affidavit filed with the written reply, where the persons concerned denied having collected and passed any money to him. I have no doubt in my mind that the only manner in which the charge against him could be established was the examination of these persons who are said in the show-cause notice to have passed the illegal gratification to him, which is to say the least. What with the statements of these witnesses, even the officers who visited the village before report dated 7-2-1982, namely Mehr Muhammad Zaman, Executive Engineer, Muhammad Jamil Deputy Director and the Executive Engineer Construction Division Electricity, have not been examined in support of the respondent's case. Neither of these things has been done in this case and I fail to understand what was the basis for the findings which led respondent No,1 to the passing of the impugned order. There was nothing in the appellant's explanation in writing to justify the conclusion that he had accepted the money and then passed it on to the officers concerned.
20. There is yet another aspect. The facts show that the appellant was not directly concerned with the matter at the relevant time. This in view, it is difficult to appreciate how he was brought into the matter and why he, of all the persons, was chosen to act as an intermediary for a favorable report.
It may incidentally be mentioned that during the course of arguments, his learned counsel pointed out that the main culprits in accordance with the respondent's ease, namely Mushtaq Ahmad Cheema LS-II and Shafique Ahmad Siddiqui SDO were allowed to escape, only with minor punishments and that they were still working. Be that as it may, the record does not provide us with any material to sustain a verdict of guilty against the appellant.
LEGAL OBJECTIONS
21. Despite this favorable conclusion, however, the appellant can be entitled to relief only after a few hurdles arising out of legal objections are crossed. The first objection emanates from the provisions of section 4(1)(a) of Service Tribunals Act, 1973 which make the following reading: "(a) where an appeal, review or representation to a departmental authority is provided under the Civil Servants Ordinance, 1971, or any rule 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 representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred."
22. Rule 11(2)(d) of the Rules is also relevant. It provides that an employee on whom a penalty is imposed, shall gave a right to appeal to the Competent Authority and that it shall be made within two months of the date on which the orders under rule 5 were passed.
23. As the facts go, no departmental appeal under rule 11 of the rules was made by the appellant within the prescribed period. It was in fact made on 2-4-1983, the date on which the present appeal under section 4 of the Act was filed. Seen in the context of in this situation, the matter presents two questions before us for determination; First, whether there is sufficient ground for condo nation of delay in filing the departmental appeal under the circumstances of this case.
Second, whether the appeal is liable to dismissal as immature, because of have been presented before the expiry of ninety days from the date on which the departmental appeal was preferred.
24. The view taken by this Tribunal in large number of cases was that grievance notice under section 25(A) of the Ordinance amounted to a departmental appeal under rule 11 of the Rules and that it fulfilled the statutory requirement of section 4(1)(a) of the Act. Because of its importance, the question was examined by a Full Bench of this Tribunal in Muhammad Latif Bhatti v. Chairman Area Electricity Board (E) WAPDA, Gujranwala 1986 PLC (C.S.)
111. After examination of the provisions of rule 11 of the Rules and those of section 25(A) of the Ordinance, it reached the conclusion that grievance notice under section 25-A of the I.R.O. Did not serve the purpose of a departmental appeal under rule 11 of the Rules.
25. On appeal, the Tribunal's view was upheld by the Supreme Court in 1987 SCMR 1936. In the cases under examination in that judgment, the appellants had filed appeals under section 4 of the Act without fulfilling the requirements of section 4(1)(a) of the Act by preferring departmental appeals before coming to the Tribunal. It was argued that the grievance notices served on the respondents, served the purpose of departmental appeals. The Supreme Court ruled that the service of grievance notice did not amount to substantial compliance of the requirement of rule 11 of the Rules. However, in the present case, the facts are slightly different, in that the departmental appeal was in fact filed, though as late as on 2-4-1983. Therefore, unlike the previous two cases resulting in the Supreme Court's judgment 1987 SCMR 1936 what is to be seen in the present appeal is whether belated institution of departmental appeal amounts to sufficient compliance with the requirement of law and whether the delay should be condoned under the circumstances.
26. In this respect, we may refer to the following observations made by the Supreme Court in Muhammad Latif Bhatti's case: "The appellants considered themselves to be governed by Labour Laws in the matter of their employment and removal from service. This accounted for the grievance notice under section 25- A of the Industrial Relations Ordinance and their point of view prevailed before the Labour Court as well. Finally, they were told by the High Court that that law was inapplicable and their remedy lay before the Service Tribunal. It was then an occasion for them to have referred to the law applicable and to have satisfied its jurisdictional requirements for approaching the Service Tribunal. Having failed to do that they cannot as a matter of legal right claim that the Service Tribunal was bound in law to treat their grievance notice as substantial compliance with the law, requiring a departmental appeal before approaching the Service Tribunal."
27. These observations are clearly suggestive of the fact that the appellants were within their right to file departmental appeals, after it had been held by the High Court that their remedy lay before the Service Tribunal. This would also be applicable to the present case and it may be held, on the basis of aforementioned observations, that the departmental appeal was legally permissible after the matter had been returned by the Labour Court for want of jurisdiction on 15-3-1983.
28. The fact that in the individual cases, the Service Tribunal has been, after examination of facts, condoning such or similar lapses was also noticed by the Supreme Court and it was held that condo nation cannot be claimed as a general rule in all cases where the requirement of section 4(1)(a) of the Act is not satisfied. While referring to the case under examination, the Supreme Court held that it was within the discretion of the Service Tribunal and we find that the Tribunal has in fact attended to all aspects of the case involving facts as well as the law before exercising the discretion against the appellants. This is indicative of the fact that every case is to be examined and judged on its own merits and condonation of delay in suitable cases is within the judicial discretion of the Tribunal, which can be exercised to promote the ends of justice. I am of the considered view that the present case, on account of the circumstances already detailed, is undoubtly such, as would justify the exercise of this discretion for condonation of delay in filing the departmental appeal. It is accordingly held that departmental appeal dated 2-4-1983 was sufficient compliance of the statutory provisions of section 4(1)(a) of the Act.
29. The next question is regarding the incompetency of the appeal on the ground of pre-maturity, which arises from the provisions that no appeal shall lie to the Tribunal unless the aggrieved civil servant has preferred an appeal to the departmental authority and a period of ninety days has lapsed from the date on which such appeal was preferred. It seems to me that these provisions were placed on the Statute Book, not as much to the advantage of the appellant, as for that of the departmental authority and this was so to allow it to deal with the appeal in a just and proper manner to make a decision. This interpretation appears to be logical, considering that the aggrieved civil servant who prefers a departmental appeal, can easily come in appeal before the Tribunal, long before the expiry of ninety days. He was obliged to allow this period to lapse only to enable the departmental authority to decide his appeal. It will thus stand to reason that the provisions temporarily barring the remedy and putting the appellant under an obligation to allow the expiry of ninety days before preferring an appeal are only regulatory in nature and not mandatory in the sense to make his appeal incompetent, in case, he prefers it before the expiry of this period. What I mean to convey is that his failure to allow the lapse of this statutory period was by no means intended to entail or expose him to a liability and the imposition of a penalty. For sake of emphasis, I say that these provisions were placed on the Statute Book to enure for the benefit of the departmental authority, which could decide his appeal even after the institutions of the appeal.
In this view of the matter, there will be no justification for non-suiting the appellant, merely because he presented his appeal without waiting for the expiry of the period of ninety days. Anyway, this period has now passed without communication of any result and the appeal has thus become mature and competent.
LIMITATION
30. The only other point which now requires to be determined is in respect of delay in filing this appeal. It has been contended on behalf of the respondents that the impugned order having been passed on 22-9-1982, the present appeal filed on 2-4-1983, is barred by time in view of the provisions of section 4(1) read with those of the proviso to the sub section.
31. On merits, it has already been found that the impugned order is void and nullity in the eye of law because of having been passed in disregard of the provisions of rule 5(v)(a) & (b) of the Rules, which placed the respondents under a statutory obligation to serve the appellant with the second show cause notice, after provisional determination of the penalty to be imposed and affording him an opportunity of personal hearing. This being so, delay caused in the institution of this appeal should be condoned in the interests of justice, on the authority of Lahore High Court's judgment in Syed Mahmood Alam v. Syed Mehdi Hussain, cited at the bar PLD 1970 Lahore 6, where it was held that under certain circumstances the Appellate Authority could entertain and decide an appeal on merits, in spite of the fact that prima facie it appears to be time-barred, in a situation where the order in appeal is a nullity. It was observed that an act or an order which is a nullity is simply to be ignored.
32. This authority went further in lying down that where section 5 of the Limitation Act is not applicable, the power of the Appellate Authority to decide the case on merits will not be hinged by any consideration of limitation, after the order appealed against is found to be a nullity. It may be noticed with advantage that the provisions of section 5 of the Limitation Act have been made by section 7 of the Act to apply to appeals under the Service Tribunals Act. It evidently implies that this has been so done to enable the Tribunal to med a situation where the grant of relief under the circumstances of a case would promote the ends of justice, irrespective of the fact that the appeal is apparently time-barred. The fact that the provisions of section 5 of the Limitation Act have been specifically made available to be pressed into service in appropriate cases, is clearly suggestive of an implied encouragement to condone delay in the institution of an appeal, in case such a course would ensure the promotion of administration of justice.
33. Because of its circumstances, which include the nature of the impugned order, the present case deserves condemnation of delay under section 5 of Limitation Act, more so when the appellant appears to have suffered from a bona fide belief that his remedy lay before the Labour Court.
34. For these reasons, the impugned order dated 22-9-1982 in respect of the appellant's removal from service, is set aside in acceptance of the appeal, with all consequential benefits.
35. There will be no order as to costs.