' CH. HASAN NAWAZ (MEMBER).--While he was posted as Assistant Lineman in WAPDA Sub-Division Office, Bucheke in the District of Sheikhupura, on 29-4-1979, the appellant was served with a charge-sheet where it was alleged that he demanded a sum of Rs,800 as illegal gratification for himself, Zulfiqar Ali, Line Superintendent and Siraj Din, Lineman, from M/s. Abdus Sattar Khan and Muhammad Khan share-holders of tube well No, 317/ZW, situate in the area of Chak No, 569/GB, District Sheikhupura, for repairing its transformer and that he received a sum of Rs,60 as bribe in advance on the same day from them, in the presence of M/s. Abdus Sattar and Ameer Khan, in consideration for repairing of the transformer (Annex. L).
2. In his report dated 22-9-1982, it was found by Sh. Anwar Latif, Inquiry Officer, on the basis of evidence recorded by him that the appellant had accepted a sum of Rs,50 as illegal gratification from the aforementioned Muhammad Khan, share-holder of the tube well and that first part of the charge regarding the demand of Rs,800 from Abdus Sattar and Muhammad Khan had not been proved.
3. On the basis of this report, he was served with final show-cause notice dated 29-11-1982 where it was said that he had been found guilty by the Inquiry Officer of accepting illegal gratification in the performance of his official duties, which amounted to gross misconduct under the Pakistan WAPDA Employees (E&D) Rules, 1978 making him liable for imposition of any of the penalties mentioned in rule 4 of the Rules.
4. After due consideration of his explanation and other material on the record, he was removed from service by the competent authority on 9-2-1983 (Annex. A) The order of removal was received by him on 1-3-1983.
5. His departmental appeal dated 16-3-1983, against the order of removal from service having gone without any response, on 6-7-1983 he filed the present appeal under section 4 of the Service Tribunal Act, 1973, where it was prayed that the impugned order dated 9-2-1983 may be set aside with a direction that he may be reinstated with all consequential benefits.
6. During the pendency of this appeal, on 20-8-1984, his departmental appeal was accepted by the competent authority with the following order: "After due consideration of the above mentioned documents the undersigned in his capacity as appellate Authority under rule 11 of the Pakistan WAPDA Employees E & D Rules, 1978 has decided to accept the appeal of Mr. Maqsood Hussain Shah, A.L.M. Of Nankana Division setting aside the orders of removal passed by the XEN. Nankana Division and he is posted in Muridkey Sub-Division No, 2 vice Mr. Muhammad Shafique, A.L.M., subject to the following conditions:
(1) He will withdraw the appeal lodged by him against the above orders in the Service Tribunal, Lahore.
(2) He will be treated as fresh recruit."
7. It was conceded at the bar by the appellant's learned counsel that he again joined service in consequence of the order passed in the departmental appeal. On 2-7-1988, after the lapse of about four years, he made an application for the amendment of his appeal before the Tribunal on the ground that the impugned order of his removal from service dated 9-2-1983 had been set aside by the appellate Authority on 20-8-1984. In the amended appeal, he wanted to make a mention of the fact that the impugned order dated 9-2-1983 had been modified in appeal on 20- 8-1984 and that the condition imposed by the appellate authority whereby he was to be treated as fresh recruit in the service was illegal and without lawful authority. He also wanted to amend the prayer to be able to add that the appellee's order dated 20-8-1984 may be partially set aside in so far as it relates to the imposition of aforementioned conditions and that he may be reinstated in service with effect from the date of removal with consequential benefits.
8. The application for amendment was opposed by the respondents, inter alia, on the ground that it was barred by time. It was also pleaded in defense that the original order of removal dated 9-2- 1983, having merged in the appellee's order dated 20-8-1984, the appellant should have assailed its validity within time in another appeal. The only order in the field was that passed in appeal which was never challenged within time.
9. The appellate order dated 20-8-1984, shows that his departmental appeal was accepted on two conditions: First, the appellant should withdraw the appeal filed by him before the Tribunal. The second was, that he shall be treated as a fresh recruit in the service. As already pointed out, the appellant joined the respondents' service in consequence of this order. This clearly supports the fact that he accepted the order and that he had all along been acting upon it during the last four years. We have been straining our minds to find out as to what stood in his way in challenging a part of the appellate order by which he was aggrieved. He was fully conscious that his reinstatement in service was made conditional on the fact that he was to be treated as fresh entrant in service. If this condition was not acceptable to him, he should have challenged the validity of this order either in a fresh appeal before the Tribunal within 30 days of the passage of the appellate order, or at least sought amendment in his appeal already filed before the Tribunal within the prescribed period. He, however, failed to adopt any of these measures and we fail to understand as to what was the justification for sleeping over the matter for as long a period as four years. Nothing can be more clear to show that he accepted the appellate order along with the conditions attached to its passage and that he agreed to have himself treated as a fresh entrant in service.
10. Under the circumstances of this case, there is substance in the contention that the application for amendment is hopelessly time-barred. The impugned order merged in the appellate order passed on 20-8-1984, and it was appellant's bounden duty to have recourse to the Tribunal to challenge the validity of at least a part of this order, particularly when he had become aware of its passage well in time. He rather chose to accept it along with the conditions attached and we feel he is estopped by his conduct from challenging its validity after the lapse of four years. The appellate order has become final on account of having been acted upon by him and there is no ground for allowing the application for amendment high seeks an entirely different relief against an order which has been holding I ground for the last four years.
11. The present appeal before the Tribunal is to challenge order dated 9-2-1983 which is no longer in the field. This order was set aside in consequence of departmental appeal and the appellant has been serving after having been reinstated in service. Therefore, the appeal has obviously become infructuous. As for the appellate order dated 20-8-1984 we are constrained to observe that its validity has not been challenged. It was argued by appellant's learned counsel that we can examine the validity or otherwise of this order in the present appeal because it was passed during its pendency. A concession to the effect that there is substance in this arguments, will necessitate an address to the merits of the appeal pending before us. We find that all the formalities laid down in the disciplinary rules were duly observed in this case. The appellant was served with a charge- sheet which was accompanied by a statement of allegations. The Inquiry Officer was then appointed who conducted its proceedings in accordance with the rules and after recording the statements of relevant witnesses, came to the conclusion that the appellant was proved to have accepted a sum of Rs,50 as bribe from one of the share-holders of the tube well. Then, there is no substance in the allegations that the appellant was not allowed an opportunity to cross-examine the prosecution witnesses. The record shows that this opportunity was granted to him but he failed to cross-examine the witnesses, which justifies the inference that he had nothing to say against them. Furthermore, the allegation regarding the Inquiry Officer's failure to record the statements of defence witnesses also seems to be incorrect, in that we find from the record that the accused did not want to examine any evidence in his defence. Even the penalty of removal from service in view of the nature of allegations, was not harsh, as pleaded by the appellant.
12. In the presence of these facts, the appellant's reinstatement in service, by the Superintending Engineer concerned, was evidently in consequence of a lenient view of the matter. We feel no hesitation in saying that he got more than he deserved, probably on compassionate grounds. The appellant's learned counsel wants us to examine the appellate order in the present appeal which was directed against the original order of removal dated 9-2-1983 and set aside only a portion of this order which adversely affects him, and that too after the passage of four years, an indolence which had nothing whatsoever in support. It is interesting to note that the learned counsel impliedly wants us to examine the appellate order in consideration of the appeal on merits and set aside only that portion of the order which goes against him and accept his reinstatement in service as a fact accomplished.
13. It may be mentioned before taking leave of the matter that the facts of the authority 1986 SCMR 1799 relied upon by the appellant's learned counsel are distinguishable. The observations made in this ruling were the outcome of entirely different circumstances. Even in Sh. Abdur Rehman's case 1986 CLC 1033 the ruling given by the Lahore High Court was the result of distinguishable facts. As we see, different circumstances prevailed in those two authorities.
14. For these reasons we hold that there is no ground for allowing the application for amendment. It is accordingly dismissed. Further, the appeal is also B dismissed as having become infructuous because the impugned order dated 9-2-1983 is no longer in existence. There will be no order as to costs.