CH. HASAN NAWAZ (MEMBER).--This judgment is concerned with the disposal of two appeals under section 4 of the Service Tribunals Act, 1973, giving rise to identical questions of law and facts, filed by the appellant who is serving as Upper Division Clerk with the respondents, against the order of his dismissal from service passed by respondent-2 on 17-3-1982 (Annexure F) in Appeal No, 102(L)/1986, dated 16-4-1986 where the judgment is being recorded.
2. These are facts in the background: While he was serving as Upper Division Clerk in Revenue Office (WAPDA) Nazimabad, Faisalabad, the appellant was served with a charge-sheet (Annexure-A/1) on 28-4-1981, accompanied by a statement of allegations (Annexure-A) which is reproduced below because of its importance and bearing on the decision of these appeals: "Mr. Muhammad Bashir son of Barkat Ali, while posted as Senior Clerk in the (Summary Section)
Office of R.O. (P) 2nd, Faisalabad during 3 & 4/1981 is alleged guilty of misconduct and insubordination for the following irregularities:--
(1) While working as Senior Clerk (Summary Section) in the office of R.O. (P) 2nd Faisalabad he instigated the staff to discontinue the billing on monthly basis and to start the billing on two monthly basis for the month of 3/1981 in contravention of the billing programme chalked out by the XEN./R.O.
(2) On 11-4-1981 he willfully absented himself from duty as not found by the Commercial Manager during his inspection of R.O. (P) 2nd Faisalabad.
(3) He organised an unlawful assembly of the staff of R.O. (P) 2nd Office and led them to the office of D.S.P., City Faisalabad on 8-4-1981 in order to pressurise the Police Authority for registering a self made case against the Officers and to get Mr. Abdul Saeed, L.D.C. released who was arrested in a criminal case under F.I.R. No, 169/81, dated 4-4-1981 P.S. Gulberg, Faisalabad."
3. The appellant was transferred to Revenue Office, Mianwali by order dated 13-5-1981 (Annexure- C), after he had submitted an explanation to the charge-sheet on 6-6-1981 (Annexure-B). An inquiry was held and he was served with second show-cause notice dated 22-2-1982 (Annexure- D) on the basis of Inquiry Officer's report. He pleaded to this notice with an explanation in writing on 4-03-1982 (Annexure-E). These disciplinary proceedings eventually culminated in the order of his dismissal from service passed by Superintending Engineer, WAPDA (Electricity) Faisalabad Circle on 17-3-1982 (Annexure-F).
4. After having thus been dismissed, the appellant served the respondents with grievance notice dated 15-4-1982 (Annexure-G) under section 25-A of the Industrial Relations Ordinance, 1969, which was followed by the institution of a grievance petition (Annexure-H) under the same section on 20-6-1982 before Punjab Labour Court-5, Faisalabad. It was accepted by the Court by judgment dated 18-10-1982, in pursuance whereof he was reinstated in service by the respondents. The Labour Court set aside the order of his dismissal and ordered his reinstatement without granting the conseqential benefits. He went in appeal to the Labour Appellate Tribunal, Lahore for the grant of these benefits, which was subsequently withdrawn because of the respondents having gone to the High Court with a writ petition, which was ultimately accepted on 21-4-1984 with the ruling that the Labour Court did not have the jurisdiction to decide the matter. After having learnt about the decision of the High Court on 14-5-1984, he filed his first appeal (154(L)/84) on 16-5-1984, without filing a departmental appeal under Rule 11(2)(d) of the Pakistan WAPDA Employees (E&D) Rules, 1978 to make it maintainable under the proviso to section 4(1) of the Service Tribunals Act, 1973.
5. The second appeal on the same cause of action (102(L)/86) was filed on 16-4-1986, in evident awareness and accession of the fact that first appeal was not competent because of having been filed without fulfilment of the jurisdictional requirements laid down under the aforementioned proviso to section 4 of the Act. This aspect of the matter was brought to the notice of the appellant's learned counsel and although he showed reluctance to withdraw the first appeal, he did not deny the fact that the second appeal had been filed after filing a departmental appeal dated 21-12-1985 (Annexure-J) to avoid any technicality of the law out of precaution."
6. As for merits, even a cursory application to the material on the record would show that the order of dismissal is not legally sustainable. The record makes it impossible to resist the conclusion that there has been mis-carriage of justice in this case. Much has been left to be desired in the disciplinary proceedings and I have no doubt in my mind that the impugned order should be set aside in the interests of justice.
7. I have been influenced to this finding on account of the following reasons:
8. (a) As it is apparent from second show-cause notice, (Annexure-D) no opportunity for personal hearing was granted to the appellant in accordance with the principle laid down by the Supreme Court in Mir Mohammad's case, PLD 1981 SC 176, which was subsequently acknowledged and embodied by the Authority in Rule 5(v)a, and which speaks of the second show-cause notice and provides that the competent authority shall take into consideration the cause shown by the accused, hear him in person and determine whether the charge has been proved. I have no doubt in my mind that the grant of personal hearing was necessary in the interests of justice before deciding the matter. The Authority might have been led to a different conclusion or at least a lenient view in consequence of personal hearing. This fundamental requirement of law in accordance with the Supreme Court's ruling, has not been fulfilled and the competent authority's decision without grant of personal hearing suffers from an inherent defect in this case, for it is not based on what ought to have been taken into consideration.
(b) Personal hearing given to the appellant on 17-2-1982, can by no means serve as a substitution for second such opportunity necessary under the law, after the appellant had known about the findings of the Inquiry Officer.
(c) I see from the impugned order dated 17-3-1982, that S.M.LA. Faisalabad's letter No, 281/1/ML, dated 16-3-1981, declaring the accused (appellant) as a `trouble-monger' was also taken into consideration alongwith other material while dismissing him from service. This has also brought about a material irregularity in the proceedings, for the competent authority ought not to have been influenced by a circumstance which had not been mentioned either in the charge-sheet or in the statement of allegations. I feel that the matter does not require any emphasis and it will be enough to say that there is nothing on the record to deny that S.M.LA's letter might have played a vital role in bringing the competent authority to the conclusion that the appellant was not fit to be retained in service. It is a case where the appellant has been punished, inter alia, on the basis of a document which was never brought to his notice and against which he was not given an opportunity to plead.
(d) It can be noticed from the proceedings of the Inquiry Officer that apart from the statement of the appellant himself, he has relied upon the statement of one witness in support of his findings.
Details are unnecessary and it will be sufficient to point out that the record of his proceedings does not show that the appellant was given an opportunity to cross-examine that witness, although he is shown to have been present during the proceedings. I feel that this circumstance has also resulted in miscarriage of justice.
(e) Even otherwise, apart from the aforementioned circumstances, there seems to be nothing in the statement of this witness to lead the Inquiry Officer to the conclusion that charges-1 and 3 have been established. The finding about second charge regarding absence without leave on 11-4-1981 is that it has not been proved. As already pointed out, only the solitary statement of Mr. Hassan Imam Bukhari, Revenue Officer has been relied upon in coming to the conclusion that he instigated the staff to discontinue the billing on monthly basis and start billing on two monthly basis, irrespective of the fact that he was only a Senior Clerk in the Summary Section and had nothing to do with the billing Section. I realise that instigation could still be possible, but then there should have been some evidence in support of this fact. The Inquiry Officer's finding on this charge seems to be rather unsound.
(f) Even on the third charge, the Inquiry Officer had only the statement of Mr. Hassan Imam Bukhari to rely upon in support of the finding that he managed an unlawful assembly in the office compound of the Revenue Office. It may be mentioned that this statement, besides being without corroboration, seems to be casual and hollow to the extent that it proves nothing at all, more so when seen in the context of the circumstance that the appellant was not given an opportunity to cross-examine.
(g) Furthermore, even in accordance with the Inquiry Officer's findings, the third charge has not been established as a whole and it has been proved only to the extent that an unlawful assembly was brought about in the office compound. This was certainly not the charge, for there could be no unlawful assembly without an unlawful object, which could be available only from the fact that such assembly was taken to the DSP's Office with the purpose of obtaining the release of Mr. Abdul Saeed, L.D.C.
(h) Apart from these circumstances, I feel that the third charge does not make a happy reading and it is difficult to spell out an allegation of making an unlawful assembly, to say nothing of the fact that there is no evidence in support. The charge seems to be ex-facie infirm.
(i) Even if the Inquiry Officer's findings be taken as correct, the punishment awarded against the appellant does not appear to be proportionate to the amount of guilt, which is to say the least, the allegations taken on merit were not such as should have warranted his dismissal from service and a lenient view of the matter could certainly be taken.
8. The conclusion which necessarily follows from the aforementioned considerations is that the appellant is entitled at least to a partial relief. The only thing which stands in the way is the question of limitation raised by the respondents in their written statement with which I propose to deal in the succeeding paragraphs whereas the first appeal was filed on 16-5-1984 which is obviously time-barred. If this be factually true about the first appeal, the second appeal filed on 16- 4-1986
9. As the record bears out, the order of dismissal was passed on 17-3-1982, suffers from the same defect rather with larger gravity. Therefore, under the circumstances, what requires to be decided is whether the appellant has been able to make out a good case for condonation of delay in his application under section 7 of the Service Tribunals Act, 1973, read with Rule 8 of Service Tribunal (Procedure) Rules, 1974 and sections 5 and 14 of the Limitation Act, 1908.
10. As already mentioned before in the statement of facts, after the passage of impugned order on 17-3-1982, the appellant served the respondents with grievance notice dated 15-4-1982 which was followed by a grievance petition on 20-6-1982, eventually accepted on 18-10-1982. The WAPDA's writ petition to challenge the validity of Labour Court's order was finally accepted by the High Court on 21-4-1984 on the ground that the Labour Court had no jurisdiction in the matter. The first appeal was filed on 16-5-1984 after the appellant became aware of the High Court's decision on 14-5-1984.
11. Delay in filing the appeal has been explained in the application for condonation of delay with the pleadings that the law on the point was not clear in accordance with the judgments of the superior Courts and that certain categories of WAPDA employees like the petitioner were treated as workmen at the relevant time and not as civil servants; which led the appellant to a genuine belief that his remedy lay before the Labour Court and not before the Service Tribunal. It was further pleaded that in a number of cases, it was held by the Tribunal that the grievance notice served under section 25-A of the Industrial Relations Ordinance, 1%9 fulfilled the requirements of a departmental appeal. This was in an attempt to explain why the first appeal dated 16-5-1984 was instituted with some delay and without first exhausting the departmental remedy provided under Rule 11 of the Rules.
12. We also see in the pleadings of the appellant in the application for condonation of delay that this view of the Tribunal underwent a change in consequence of Full Bench ruling which became known to the appellant through his counsel on 21-12-1985, after which he filed the departmental appeal on the same day. The second appeal was then filed on 16-4-1986 after the expiry of the statutory period of 90 days under proviso to section 4(1) of the Act. Relying upon these facts, it was contended by the appellant's learned counsel that even the second appeal is within time if the period spent by him on prosecution of the matter before the Labour Court and the Service Tribunal is excluded under section 14 of the Limitation Act while computing the period of limitation. He emphasised that he had been suffering from a genuine and bona fide belief that his remedy lay before the Labour Court and that the grievance notice served the purpose of a departmental appeal under Rule 11 of the Rules.
13. The question whether the grievance notice amounted to a departmental appeal under rule 11 of the Rules so as to fulfil the jurisdictional requirements, was examined by a full Bench of the Tribunal in Mohammad Latif Bhatti's case decided on 10-11-1985. (1986 PLC (C.S.)
111. It came to the conclusion that the grievance notice did not serve the purpose of a departmental appeal and that both had different characteristics. The Tribunal's decision was subsequently endorsed on appeal by the Supreme Court in 1987 SCMR 1936 with the following observations: "It is clear to us that it was not a case of mistake of fact, that is quoting a wrong law, addressing an incompetent officer or mentioning an incorrect fact but that a mistaken view of the law was at the back of it all. 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 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. If in individual cases, the Service Tribunal has been, after examining the facts, condoning such a similar lapses, condonation cannot be claimed as a general rule in all cases where the requirement of first proviso of section 4(1) Service Tribunals Act is not satisfied. 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. We too find no reason why the appellants failed to file a departmental appeal as was required under the law."
14. One aspect of the matter is that after the High Court's decision on 21-4-1984, regarding lack of jurisdiction in the Labour Court, the appellant should have promptly filed a departmental appeal before coming to the Tribunal to fulfil the jurisdictional requirements of law laid down in section 4(1) of the Act. He however filed the first appeal without exhausting the departmental remedy and I have no doubt in my mind that it is liable to dismissal as being incompetent under proviso to section 4(1) of the Act. But this still leaves us with the question whether under the circumstances of this case, delay in filing the second appeal should be condoned. The appellant's case, as already pointed out before, is that he had been under a bona fide impression that the grievance notice was as good as departmental appeal under Rule 11 of the Rules and that his first appeal was competent. I am inclined to say that his pleadings on this point and the arguments of his learned counsel are not wholly without substance. They do carry some weight because the law on the point was rather not clear, and it was for the first time on 10-11-1985 in Muhammad Latif Bhatti's case that the Tribunal came to the conclusion that the grievance notice did not serve the purpose of a departmental appeal. Different judgments delivered on different occasions could lead the appellant to a bona fide belief, not only that his remedy lay before the Labour Court, but also that the service appeal before the Service Tribunal could be filed without exhausting the departmental remedy.
15. Reference may be made with some advantage to the observations made by the Supreme Court in Muhammad Latif Bhatti's case to the following effect; "If in individual cases the Service Tribunal has been, after examining the facts, condoning such or similar lapses, condonation cannot be claimed as a general rule in all cases where the requirement of first proviso of section 4(1) Service Tribunal Act is not satisfied. 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."
16. It is quite clear that condonation of delay in appropriate cases is within the discretion of the Tribunal and after taking into consideration the circumstances of the case, I am of the view that delay, howsoever great it may be in filing the second appeal, should be condoned in the interests of justice. The appeal being admittedly beyond limitation, it may be emphasised that the delay is being condoned and not legalised. On merits it has been found that the disciplinary proceedings betray a miscarriage of justice and I feel that it is an appropriate case for pressing the principle of condonation into service, especially in view of the consideration that all laws are made to promote the ends of justice. Put in other words, there is no law to prevent a Court or Tribunal from just decisions of the matters before them, more so in a case such as the present one where certain basic defects and irregularities have vitiated the disciplinary proceedings and rendered the consequential order of dismissal a nullity. The delay in filing the second appeal is therefore condoned.
17. For these reasons, Appeal No, 154(L)/1984, dated 16-5-1984 is dismissed. The subsequent Appeal No, 102(L)/1986, dated 16-4-1986 is accepted and the impugned order of dismissal is set aside with the observation that the department will be within their authority to proceed against the appellant, from the stage where the mistake in the disciplinary proceedings can be rectified and then pass any order in accordance with the rules. There will be no order as to costs.
18.Parties to be informed.
KH. ABDUL JALIL (MEMBER).--Appellant, Muhammad Bashir, an Upper Division Clerk of WAPDA was dismissed from service under rule 4 of Pakistan WAPDA Employees (E&D) Rules, 1978 by order dated 17-3-1982. His grievance petition under section 25-A of I.R.O., 1969 was accepted by the Punjab Labour Court No, V, Faisalabad by order dated 18-10-1982 and he was reinstated in service. The respondent WAPDA challenged the order of the Punjab Labour Court through a writ petition filed in the Lahore High Court on 11th December, 1982 and this was accepted by the High Court vide order dated 21-4-1984 holding that the appellant was a civil servant and, therefore, the Labour Court had no jurisdiction in the matter. The appellant filed his first appeal No, 154(L)/84 against the impugned order on 16-5-1984 before this Tribunal under section 4(1) of the Service Tribunals Act, 1973. He filed his second appeal No, 102(L)/86 against the same impugned order on 16-4-1986 before this Tribunal.
19. Appeal No, 154(L)/84 filed on 16-5-1984 is not maintainable because the appellant had not exhausted the departmental remedy provided by rule 11 of the WAPDA (E&D) Rules, 1978 before approaching the Service Tribunal through this appeal. As the jurisdictional requirements laid down in the first proviso to section 4(1) of the Service Tribunals Act, 1973 have not been fulfilled by the appellant, I agree with the order proposed by my learned brother in respect of this appeal and dismiss it as being incompetent.
20. Coming to the second Appeal No, 102(L)/86, I am of the view that this appeal also merits dismissal on the following legal grounds:--
(i) Section 4(1) of the Service Tribunals Act, 1973 allows filing of only one appeal before the Service Tribunal by a civil servant aggrieved by any final order, whether original or appellate. The appellant had availed of this right by filing his first Appeal No, 154(L)/84 on 16-5-.1984 which had been admitted for regular hearing. For this reason his second Appeal No, 102(L)/86 is incompetent.
(ii) After dismissing the first appeal of the appellant bearing No, 154(L)/84 the Tribunal ceased to have jurisdiction in the matter as decision of second appeal on merits will amount to review of its own order by the Tribunal when the powers of review are not available to the Tribunal. Reliance is placed on the case reported as 1986 SCMR 965.
(iii) There is no sufficient ground to condone the delay involved in filing the Second Appeal No, 102(L)/86 on 16-4-1986. The appellant filed his departmental appeal on 21-12-1985 whereas the High Court had held the appellant to be a civil servant by order dated 21-4-1984. The appellant should have immediately after this decision of the Lahore High Court filed a departmental appeal under rule 11 of Pakistan WAPDA (E&D) Rules, 1978 in accordance with the following observation of the Supreme Court in the case reported as 1987 SCMR 1936: "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 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."
The appellant's contention that it was after the judgment of the Federal Service Tribunal reported as 1986 PLC (C.S.) 111 that he preferred an appeal to the departmental authority does not provide an adequate ground for condoning the delay involved.
21. In view of the aforementioned legal infirmities, I disagree with my learned brother and dismiss the Second Appeal No, 102(L)/86 filed by appellant Muhammad Bashir before this Tribunal on 16-4- 1986.
SYED ALLY MADAD SHAH (CHAIRMAN).--Consequent to difference of opinion between the two learned Members, M/s. Khawaja Abdul Jalil and Ch. Hassan Nawaz over the decision of this appeal, the matter has come up before me for my opinion as the Chairman of the Tribunal as provided under section 3-A of the. Service Tribunals Act, 1973.
2. The appellant was an Upper Division Clerk in the Revenue Office (WAPDA), Nazimabad, Faisalabad. He was dismissed from service under the Pakistan WAPDA Employees (E&D) Rules, 1978 vide order dated 17-3-1982 issued by the Superintending Engineer Electricity, WAPDA, Faisalabad Circle. He challenged the order of his dismissal from service under the Industrial Relations Ordinance, 1969. He served on the respondents a grievance notice dated 15-4-1982 under section 25-A of the said Ordinance. Thereafter, he filed a grievance petition dated 20-6-1982 before the Punjab Labour Court V, Faisalabad under the provisions of the same Ordinance. His grievance petition was allowed by judgment dated 18-10-1982 and he was reinstated in service. He preferred an appeal to the Labour Appellate Tribunal for getting back benefits which were refused by the Labour Court. On the other hand, the respondents challenged the decision of the Labour Court, Faisalabad before the Lahore High Court in Writ Petition No, 4825 of 1982. The Lahore High Court by order dated 21-4-1984 held that the order of the Labour Court, Faisalabad was without lawful authority and of no legal effect. The appellant then rushed to this Tribunal and preferred Appeal No, 154(L)/84 on 16-5-1984. During the pendency of that appeal, the appellant filed a departmental appeal in order to obviate the probable objection to the maintainability of the appeal on the ground that no departmental appeal was filed. He preferred this appeal on 16-4-1986. It was admitted on 13-7-1987. Both the appeals were heard together by the Bench comprising M/s. Khawaja Abdul Jalil and Ch. Hassan Nawaz, Members. Both of them concurred in dismissing the appeal No, 154(L)/84 that it had been filed without preferring departmental appeal and was hit by proviso to subsection (1) of section 4 of the Service Tribunals Act, 1973 and dismissed it. There was, however, difference of opinion between the two learned Members in respect of Appeal No, 102 (L)/86. Ch. Hassan Nawaz, Member held that there was serious lacuna in the departmental proceedings taken against the appellant and he allowed the appeal and set aside the impugned order, while rejecting the objection by the respondents that the appeal was time-barred. The other learned Member Khawaja Abdul Jalil held that the appeal was hopelessly time-barred and it was liable to be dismissed on that ground and dismissed it. It is in this context that the Appeal No, 102(L)/86 has come up before me for opinion.
3. This Appeal No, 102(L)/86 filed on 16-4-1986 is directed against the order of dismissal of the appellant from service dated 17-3-1982. Section 4 of the Service Tribunals Act, 1973 provides that a civil servant aggrieved by any final order, whether original or appellate, made by departmental authority, may within thirty days of the communication of such order to him, prefer appeal to the Tribunal, provided that whether an appeal, review or representation to a departmental authority is provided, no appeal shall lie to the Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of 90 days has elapsed from the date on which such appeal, application or representation was so preferred. The appeal preferred on 16-4-1986 against the order dated 17-3-1982 was definitely time-barred. The learned Member Ch. Hassan Nawaz held the view that the period occupied in pursuing the remedy under the Industrial Relations Ordinance, 1969 before the Labour Courts and subsequently filing of the appeal before this Tribunal was condonable as the law whether the service of grievance notice under the Industrial Relations Ordinance did not amount to departmental appeal was not clear until the decision of this Tribunal in Muhammad Latif Bhatti's case on 10-11-1985, that the grievance notice did not serve the purpose of the departmental appeal and he also made reference to the observations of the Supreme Court in the appeal in respect of the same Muhammad Latif Bhatti's case, reproduced in his judgment as "if in individual cases the Service Tribunal has been, after examining the facts, condoning such or similar lapses, condonation cannot be claimed as a general rule in all cases where the requirement of first proviso of section 4(1) of Service Tribunals Act is not satisfied. 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." The other learned Member Khawaja Abdul Jalil relying upon the aforesaid judgments held the view that the delay in filing the departmental appeal was not condonable.
4. On dismissal from service by order dated 17-3-1982, the appellant stood bewildered in the situation of finding a forum for seeking redress from. He pursued the relief under the Industrial Relations Ordinance, 1969 that was being resorted to in the past. That question was decided by this Tribunal in F.U. Malik's case in Appeal No, 243(L)/79, decided on 29-3-1982 and it was held that the remedy to the WAPDA employees did lie with the Service Tribunal. That decision was upheld by the Supreme Court by order dated 5-12-1982 as reported in 1983 SC MR 663. The appellant pursued his remedy under the Industrial Relations Ordinance, 1969 by serving on the respondents grievance notice dated 15-4-1982. He filed grievance petition before the Punjab Labour Court V, Faisalabad on 20-6-1982. His grievance petition was accepted on 18-10-1982. He approached the Labour Appellate Tribunal to seek further relief which was refused by the Punjab Labour Court, whereas the respondents filed petition before the Lahore High Court which was accepted on 21-4-1984. All these events took place when the question of jurisdiction in the cases of the grievances of the WAPDA employees was being agitated at different forums. The appellant preferred Appeal No, 154(L)/84 soon after the decision of the Lahore High Court. The second handicap faced by the appellant was that of departmental appeal. That question was subjudice before the Tribunal in Muhammad Latif Bhatti's Appeals Nos, 206(R)/86 and 208(R)/86, decided on 10-11-1985 (reported in 1985 PLC (C.S.)
111) and upheld by the Supreme Court in Civil Appeals Nos, 39 and 40 of 1986 by judgment dated 17-12-1986 (1987 SCMR 1936). It was soon after the decision of this Tribunal that the appellant made departmental appeal after the filing of the Appeal No, 154(L)/84 and preferred this appeal after the expiry of the statutory period of 90 days. Thus the question of filing of the departmental appeals by the WAPDA employees before the Tribunal was subjudice before the Tribunal at the time he had preferred the first Appeal No, 154(L)/84. It would appear that the appellant was quite vigilant in pursuing his remedy but he was put behind the schedule due to uncertainty of the forum he was to seek redress from and what requirements of law he had to comply with before seeking redress. I would, therefore, agree with the learned Member Ch. Hasan Nawaz that the delay in preferring this Appeal No,102(L)/86 was condonable.
5. The matter does not come to end on determination of question of limitation. The learned Member Ch. Hassan Nawaz has given decision on merits that the impugned order could not be maintained on the grounds that the inquiry proceedings were not conducted in accordance with the rules and also that the evidence produced before the Inquiry Officer was not sufficient to have proved the charge against the appellant, and he has allowed the appeal on that score. The other learned Member Khawaja Abdul Jalil has not touched the merits of the case but he has expressed the opinion that this is the second appeal against the same order, the first one being Appeal No, 154(L)/84, dismissed by the same judgment, and it cannot be maintained. This aspect of the case has not been dealt with by Ch. Hasan Nawaz, Member. This anomalous situation needs to be resolved. Seemingly there are two alternatives, one that of referring the appeal back to the learned Members to record their findings on the said two issues, and the other one of considering their dissenting decisions and recording my findings. I am afraid, I will be exceeding my powers in referring the appeal back to the learned Members, which may tantamount to the remanding of the appeal; but I feel that the second course of giving my findings on the merits would be permissible under law and I do proceed to consider that aspect of the case. I do agree with the learned Member Khawaja Abdul Jalil that two appeals against one and the same order cannot primarily be maintained before the same forum; but I am of the opinion that such recourse of preferring two appeals may be permissible in peculiar circumstances like those of these cases. It has been stated above that the impugned order of dismissal of the appeal from service was made on 17-3-1982. He sought redress against the said order from the Labour Court and the order was set aside by the Punjab Labour Court V, Faisalabad by judgment dated 18-10-1982 and he was reinstated in service.
The decision by the Labour Court was challenged by the respondents before the Lahore High Court by way of writ petition which was decided on 21-4-1984, and the order of the Labour Court was set aside as being without lawful authority and of no legal effect. The appellant preferred Appeal No, 154(L)/84 on 16-5-1984. During the pendency of that appeal, there came a decision of this Tribunal in Muhammad Latif Bhatti's case on 10-11-1985 that grievance notice under the Labour Laws did not serve the purpose of departmental appeal, and he filed a departmental appeal and failing to get orders thereon within the statutory period of 90 days, he filed the Second Appeal No, 102(L)/86 on 16-4-1986. Both the appeals were heard together. In the circumstances, this appeal was deemed to be in continuation of the earlier Appeal No, 154(L)/84. Of course, the situation would have been different if the two appeals had been heard and decided separately as there would not have been continuity in seeking remedy against one and the same order under two appeals. The technicalities should not defeat the ends of justice if there is no violation of law. I am, therefore, of the view that the Appeal No, 102(L)/86 is not liable to be dismissed because the earlier Appeal No, 154(L)/84 stands dismissed on the ground that it had been filed without availing of the remedy of departmental appeal. As regards the merits, I do agree with the learned Member Ch. Hasan Nawaz that the inquiry proceedings against the appellant suffer from legal lacuna pointed out by him and the impugned order is liable to be set aside as held by him in paragraph 17 of his judgment.