CH. HASAN NAWAZ (MEMBER).--While he was working as Line Superintendent-I in Ghakhar Sub- Division, WAPDA, Gujranwala, the appellant was placed under suspension on 14-7-1981 by the competent authority and then served with the following show-cause notice dated 1-9-1981:-- "Subject: SHOW-CAUSE NOTICE.
While posted in Ghakhar Sub-Divn. you committed the following acts of omission and commission:--
(1) That on 10-6-1981, 3 buffaloes were electrocuted as a result of investigation it was found that the accident took place due to bad maintenance got carried out by you as incharge of the area. Mr. Ashique Baig, LM-I fell down from the pole while doing replacement of elecric bulbs without T&P.
This was your foremost duty to get the work done under your supervision but you failed to do so, and the department sustained a loss of Rs, 15,000 as compensation to the deceased family.You installed irregular connection of Ice Factory in the name of Col. Aziz A/c. No, 589 against the improvement of Low Voltage Estimate. You inflicted a loss of Rs, 40,000 to the Department just to win the favour of the consumer, which was later on recovered from the consumer.
You failed to return application of 25 T/Ws, 5 industrial and 18 general which were given to you on 16-3-1981, 15-4-1981 etc. The list is attached. Junior most applications have been returned duly estimated thus you have disturbed the priority of the Sub-Divn.
I, Ch. Khadim Hussain, Chief Engineer, Gujranwala being "Competent Authority" have considered the case under rule 5(iv)(a) of Pakistan WAPDA Employees (E&D) Rules, 1978 and upon consideration, I have decided that it is not necessary to have a formal enquiry conducted in this case.
You are, therefore, hereby directed under Rule 5(iv)(b) ibid to show cause in writing within fourteen days of the receipt of this Notice why all or any of the major penalty/penalties described in Rule 4 ibid should not be imposed on you.
Your explanation should reach the undersigned within the aforesaid period failing which it shall be presumed that you have declined to offer the same and ex parte action will be taken against you accordingly.
The duplicate copy of the show-cause notice should please be returned to the undersigned duly acknowledged.
(Sd. )
(CH. KHADIM HUSSAIN)
CHAIRMAN, AREA ELECY: BOARD GUJRANWALA."
2. In his explanation dated 19-9-1981, the appellant denied the allegations levelled against him in the show-cause notice. With reference to the first charge he stated that only two buffaloes were involved in the accident and it was incorrect to say that they were electrocuted. He pleaded that the buffaloes were drowned in a "Johar of deep and dirty water near the office of S.D.O. Ghakhar Sub-Division on account of their clashing and hitting with each other." Along with the explanation he filed an affidavit of the owners of the buffaloes M/s. Nazir Ahmed and Muhammad Iqbal, to the effect that their buffaloes were not electrocuted but had drowned in the pond. He also enclosed alongwith the explanation a photostat copy of Memo. No, 7046/AC, dated 25-6-1981 addressed by SDO Ghakhar Sub-Division to the Executive Engineer Cantt. Division, where he had supported the appellant's version on the basis of local investigation.
3. As regards the second charge it was pleaded that Ashiq Baig deceased Lineman had been provided with all the necessary items to T&P and that he had acknowledged the receipt of those items. Photocopies of the acknowledgements were filed with the explanation. It was pleaded in defence that while the deceased was aloft on the street light L.T. structure for removal of electric bulbs on 23-6-1981 at about 10.00 a.m. his hands slipped from the structure and he fell down. It was denied that his fall was the result of any electric shock. It was explained that this could not be possible, because electric supply of the street light system had at that time been specifically closed through the main switch installed for the purpose. Alongwith the explanation, photostat copies of relevant medical report, police report and statements of certain witnesses were also filed for perusal of the competent authority.
4. The explanation about the third charge was that Col. Aziz Malik applied for new connection of his Ice Factory and that the service estimate was prepared by the then Line Superintendent Bashir Hussain Shah and then signed by S.D.O. Mr. Nawazul Haque. The proposal was that requisite connection may be allowed by extending 11 KV. Line and installing a 200 KVA transformer against an estimated cost of Rs, 79,141. out of which Rs,35,492 were to be recovered from the consumer.
Demand Notice No, 1453-54, dated 30-4-1980 for depositing the amount of security as well as cost of the line was issued to the consumer and it was received by him on the same day. Although he failed to deposit the above amount within one month, his case was not cancelled by the Sub- Division as required under the rules. It is also in the explanation that an application was instead obtained from him by the then SDO Mirza Muhammad Ishaque on 12-8-1980 to the effect that his case be kept pending till the completion of the factory. A photostat copy of application dated 12-8- 1980 was also enclosed with the explanation. It was further averred by the appellant that he was put in charge of the connections during December, 1980. On 19-4-1981, the above consumer submitted another application to the effect that 11 KV line was already in existence near the factory and that the previous estimate based on a proposal of providing six spans of 11 KV line was not correct. The appellant further pleaded that it was evident from photostat copy of application dated 19-4-1981 that S.D.O., Ghakhar Sub-Division Mirza Muhammad Ishaque passed an order in writing directing the appellant "to please prepare and submit a revised estimat accordingly". This estimate was submitted in compliance by the appellant on 25-4-1981 and it was signed and despatched to the Division Office Cantt. Gujranwala through SDO's Memo. No, 1280, dated 26-4-1981. The Divisional Office did not raise any objection to the estimate and returned it to the SDO's Office after due sanction through Memo. No, 2763, dated 28-4-1981. It is also in the pleadings that sanctioning of the revised estimate was only within the competency of the Divisional Office, which was done without first revalidation/sanction of the load of that applicaion from the Superintending Engineer, Gujranwala Circle, for reasons best known to the Divisional Office. The appellant eventually provided the required connection on 1-6-1981 after observance of necessary formalities in compliance with the direction of the higher authorities and his case is that he was not responsible for any loss to the Authority.
5. About the fourth charge, the appellant's explanation is that in accordance with the record shown to him by the SDO's office at Ghakhar Sub-Division, the cases mentioned in the show-cause notice were handed over to Muhammad Boota, Line Superintendent-II and not to the appellant. He pleaded that the disposal of those cases was not his responsibility but that of the aforementioned Muhammad Boota, Line Superintendent-II.
6. It is alleged in the grounds of appeal that after he had submitted the aforementioned explanation, he was called for personal hearing on 1-2-1981. However, instead of giving him a hearing on specific charges levelled in the show cause, he was asked to change his explanation on charge No,3 regarding provision of irregular connection to the Ice Factory of Col. Abdul Aziz. He refused to obey and the competent authority then removed him from service on 2-12-1981 with the following orders:-- "Consequent upon consideration of the defence reply of Muhammad Latif Bhatti, LS-I (U/S)
Ghakhar Sub-Division explanation of the above documents/relevant record and after giving him personal hearings on 1-12-1981, the undersigned finds him guilty of misconduct.
I, Ch. Khadim Hussain Chairman, A.E.B. Gujranwala as a competent authority, therefore, hereby dismiss Muhammad Latif Bhatti, LS-I(U/S) Ghakhar Sub-Divn. from service with immediate effect.
He was placed under suspension vide this Office Order No, 30, dated 11-7-1981. The balance of intervening suspension period is confiscated. He is alo hereby debarred from future employment under WAPDA and its consultants."
7. In fairness to the appellant's case, we may make a mention of the allegaion that he was removed from service with "mala fide intention" to vindicate the position of officers involved in the case of electricity connection to the Ice Factory. It is also the appellant's contention that the comments of Superintending Engineer Gujranwala Circle on his explanation could not be legally relied upon y the competent authority in support of the order of removal without providing im with a copy of those comments and affording him an opportunity of saying omething against them. It is evident from the facts that in this case the ompetent authority has proceeded under rule 5(iv) of the Pakistan WAPDA employees (Efficiency and Discipline) Rules, 1978 before passing the order of emoval from service. It seems to have been decided that it was not necessary to old an inquiry into the matter either in the light of the facts of the case or the interests of justice. The main thrust of the appellant's case is that in view of the nature of allegations and the explanation submitted by him, a regular inquiry should have been conducted by the competent authority and the proper course in the interests of justice was to proceed under the provisions of rule 6 of the Rules. It was pleaded that the allegations could be proved only as a result of regular departmental inquiry and that no cogent reasons had been given for dispensing with such an inquiry.
8. As we see from the record, after passage of the impugned order of removal from service dated 2-12-1981, the appellant served the department with grievance notice dated 18-12-1981 and then filed a grievance petition under Section 25-A of the Industrial Relations Ordinance, 1960 before the Punjab Labour Court No, 7 at Gujranwala. The appellant was eventually reinstated in service in compliance with the Labour Court's decision dated 28-6-1982 accepting the grievance petition.
However, the Labour Court's judgment was subsequently set aside by the High Court on 21-4-1984 in the department's writ petition on the ground that the Labour Court's order was without jurisdiction.
9. After the High Court's decision, the appellant challenged the validity of the impugned order in an appeal under section 4 of the Service Tribunal's Act, 1973 filed on 25-4-1984 before the Federal Service Tribunal, without first exhausting the departmental remedy of an appeal under rule 11 of the Rules. It was opposed by the respondents on the preliminary objection that it was incompetent under the provisions of section 4(1)(a) of the Act which lays down that where an appeal, review or representation to a departmental authority is provided under the Civil Servants Ordinance, 1973, 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. On behalf of the appellant it was, however, contended that the grievance notice served on the respondents under section 25-A of the Ordinance should be treated as having served the purpose of departmental appeal under rule 11 of the Rules because of the reason that the status of Wapda employees was not clear at the relevant time.
10.In view of the pleadings in the previous appeal, the precise question for determination before the Tribunal was whether the appellant's grievance notice under section 25-A of the Ordinance amounted to a departmental appeal under rule 11 of the Rule and that if it fulfilled the jurisdictional requirements laid down in section 4(1)(a) of the Act. In Full Bench judgment dated 10-11-1985 it was held by the Tribunal that grievance notice under section 25-A of the Ordinance did not serve the purpose of an appeal under rule 11 of the Rules and since the appellant had come to the Tribunal without exhausting the departmental remedy, his appeal was incompetent in view of the proviso(a) to Section 4(1) of the Act. The appeal was accordingly dismissed as being incompetent.
11.After having failed before the Tribunal, the appellant despached a departmental appeal under rule 11 of the Rules to respondent No, 2 by registered mail on 20-11-1985; which, according to his case, was prompt because he came to know of Tribunal's judgment on 19-11-1985. A few days later on 7-1-1986, he approached the Supreme Court with a petition for leave to appeal against the Tribunal's judgment dated 10-11-1985. This was granted on 29-1-1986 with the observation that the question which further requires examination is whether on facts and circumstances of the case, non-compliance of the provisions of rule 11 of the Rules could have been ignored for entertaining and adjudicating on the appeal. This appeal was finally heard and dismissed by the Supreme Court on 17-12-1986. On 28-12-1986, the appellant again came to the Tribunal with the present appeal under section 4 of the Act for cancellation of the inpugned order of removal from service dated 2-12-1981. He explained the reason of his failure to file an appeal within thirty days of the expiry of ninety days statutory period starting from the date of filing the departmental appeal on 19-11-1985, by saying that his appeal against the Tribunal's judgment had been admitted for regular hearing by the Supreme Court on 29-1-1986.
12. In the background of these facts, the first question to be decided is that of limitation. As we have already seen, the impugned order of removal from service was passed by the competent authority on 2-12-1981. The appellant served the department with grievance notice dated 18-12-1981 under section 25-A of the Ordinance, which went without any response and he was obliged to file a grievance petition on 14-1-1982 before the Punjab Labour Court No, VII at Gujranwala. This was accepted by the Court on 28-6-1982 and the appellant was reinstated in service with back benefits in pursuance of the Labour Court's order. Thereafter, as we have already noticed, the Labour Court's judgment was set aside by the High Court on 21-4-1984 in the respondent's writ petition on the A ground that the appellant was a civil servant under Section 17(1B) of the WAPDA Act, 1958 for the purposes of the Service Tribunals Act, 1973 and that the Labour Court did not have any jurisdiction in the matter. Thereafter he filed Appeal No, 206(R)/84 before the Service Tribunal on 25-4-1984 without first filing a departmental appeal under rule 11 of the Pakistan WAPDA Employees (Efficiency and Discipline) Rules, 1978. This appeal was dismissed on 10-11-1985 as being incompetent under section 4(1)(a) of the Act, on the ground that the appellant had come to the Tribunal without fulfilling the statutory requirement of filing a departmental appeal and that the grievance notice dated 18-12-1981 did not amount to such an appeal.
13.As mentioned before, the appellant challenged the validity of Tribunal's judgment dated 10-11- 1985 in an appeal before the Supreme Court which was dismissed on 17-12-1986. While dealing with the question involved, the Supreme Court made the following observations:-- "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 and 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.
14. What we do get from the Supreme Court's ruling is that in the 1 appellant's own case it was made absolutely clear that after the High Court's decision of 21-4-1984 in the respondent's petition holding that the appellant was civil servant and that the Labour Court did not have any jurisdiction in the matter, he should have come to the Tribunal only after having complied with the requirement of section 4(1)(a) of the Act. As observed by the Supreme Court, he was told by the High Court that the Labour Laws were not applicable to his case and that his remedy lay before the Service Tribunal. It was then an occasion for him to have referred to the law applicable and to have satisfied its jurisdictional requirements for approaching the Tribunal. The rule laid down by the Supreme Court clearly suggests that after the High Court's decision, there was no room for B any misunderstanding in respect of the law applicable to the appellant's case and there was no justification for relying upon the grievance notice as being sufficient compliance of the requirement of filing a departmental appeal under rule 11 of the Rules. The appellant should have filed a departmental appeal promptly after the High Court's decision to be able to come to the Tribunal for the redress of his grievance. The Supreme Court has clearly laid down that there was no justification for further misunderstanding in the matter and the requirements of relevant law should have been fulfilled. Since this was not done, the departmental appeal filed on 20-11-1985 long after the High Court's decision was clearly time barred.
15. Even if it be assumed for the sake of arguments, that there was still ) room for misconception and that the appellant was justified in preferring a departmental appeal on 20-11-1985 after the dismissal of his appeal by the Tribunal on 10-11-1985, there was hardly any reason for delaying the institution C of the present appeal and waiting for the Supreme Court's judgment in his appeal against the Tribunal's judgment. No doubt he filed an application for leave to appeal on 7-1-1986, which was granted by the Supreme Court on 29-1-1986. He had filed his departmental appeal dated 20-11-1985 under rule 11 of the Rules after having received the Tribunal's Full Bench judgment dated 10-11-1985, and there was absolutely no reason whatsoever why he could not come to the Tribunal again within 30 days of the passage of statutory period of 90 days from filing the departmental appeal. He still chose to wait for the Supreme Court's decision without filing an appeal under section 4 of the Act. He could have filed this appeal and then waited for the Supreme Court's decision in his appeal against the Tribunal's judgment in his previous appeal. The fact of filing an appeal before the Supreme Court by no mean created an obstacle in the way of coming to the Tribunal within time. Therefore, even if it be held that there is sufficient ground for condonation of delay in filing departmental appeal dated 20-11-1985 after the High Court's decision in the matter on 21-4-1984, we find no valid reason for giving the same treatment to the delay which came about after filing the appeal on 20-11-1985. The appellant was aware of the Tribunal's Full Bench judgment and it could be reasonably expected from him to have filed an appeal before the Tribunal within the statutory period. He has however, failed to do that and we feel no hesitation in holding that the present appeal filed on 28-12-1986 is time barred.
16.We may make a mention of the appellant's averments in paragraph 10 of the appeal where he has expressed himself in the following manner:-- "The appeal was heard on 17-12-1986 but was dismissed. The copy of the same has not yet been supplied to the appellant. However to avoid the technicalities of limitation the present appeal is being filed before this Hon'ble Tribunal without any delay because during the arguments it was observed by the hon'blc Supreme Court of Pakistan that the appellant may after filing departmental appeal approach this Hon'ble Tribunal for the redressal of his grievance. As the copy of the judgment has not yet been supplied, therefore the appellant cannot say on what ground the appeal was dismissed and as to whether the above observations during arguments have been incorporated in the judgment or not."
17.17. It seems to us that an attempt has been made to cause an impression as if the present appeal was filed because of the Supreme Court's observation during' the course of arguments to the effect that the appellant may after filing the departmental appeal approach the Tribunal for the redress of his grievance. The Supreme Court's judgment dated 17-12-1986 does not however, indicate that any such observation was made during the course of arguments. The appellant's case appears to he that this observation though made during the course of arguments, has not been incorporated in the judgment. We feel inclined to say that these averments have been made only to create a justification for delayed institution of the present appeal, for there is no reason why the Supreme Court should have observed that he may approach the Tribunal after filing the departmental appeal. Then, if at all any such observation was made, we fail to understand why appellant's counsel did not bring to the notice of the Court that the departmental appeal had already been filed on 20-11-1985. It may also be mentioned that the relevant portion of the Supreme Court's judgment rather contradicts the averments made by the appellant, in that it was clearly held that after the High Court's judgment of 21-4-1984, he should have preferred an appeal to satisfy the requirements of the law applicable to his case, namely the provisions of Section 4(1)
(a) of the Act.
18. There is another aspect of the matter. As already pointed out before, after it was held by the High Court in their judgment dated 21-4-1984 that the appellant was a civil servant for the purposes of Service Tribunals Act, 1973, his remedy lay in the provisions of section 4 of the Act. He did avail of this remedy by filing an appeal on 25-4-1984 which was admitted for hearing on 26-4- 1984 and then dismissed on 10-11.1985 as being incompetent because he had filed it without first fulfilling the requirements of proviso (a) of Section 4(1) of the Act by filing a departmental appeal under rule 11 of the Rules. It was held by the Tribunal in their judgment that grievance notice dated 18-12-1981 did not serve the purpose of a departmental appeal and that it was incompetent under the aforesaid provisions. He went in appeal to the Supreme Court against the judgment of the Tribunal, which was also dismissed on the ground that he had come to the Tribunal without first fulfilling the jurisdictional requirement of the relevant law. The Supreme Court agreed with the Tribunal in holding that the grievance notice served on the respondents under section 25-A of the Ordinance did not amount to substantial compliance with the requirement of rule 11 of the Rules, so as to satisfy the demand of first proviso to section 4(1) of the Act. It was laid down that having failed to comply with the statutory provisions of the proviso, he could not as a matter of legal right claim that the Service Tribunal was bound to treat his grievance notice as substantial compliance with the law, requiring the preference of a departmental appeal before approaching the Service Tribunal. It was observed by the Supreme Court that they too, like the Tribunal, find no reason why the appellant failed to file the departmental appeal as required under the law. From the facts it is abundantly clear that after having become aware of the law applicable to his case, the appellant has already exhausted his remedy, not only before the Tribunal but also before the Supreme Court by way of appeal. He cannot, after exhausting the remedy available under the law, now be permitted to turn back and come to the Tribunal on the basis of departmental appeal dated 20-11- 1985 filed after the Tribunal's judgment. In case it be held that such a course has the sanction of law, the provisions of first proviso to section 4(1) of the Act will become a dead letter, for in that situation an aggrieved person will always have the right of coming to the Tribunal again after filing a departmental appeal, on the dismissal of his incompetent appeal under section 4 of the Act. We are in no doubt that a remedy can be availed only once and this has already been done by the appellant in this case. Under the law as it prevails, we cannot allow him to agitate the matter again, on the basis of departmental appeal dated 20-11-1985 after his previous Appeal No, 206(R)/84 has already been dismissed by the Tribunal on 10-11-1985 being incompetent. We are of the considered view that this is a matter already finally decided by a court of competent jurisdiction and the present appeal is barred by principles analogous to those of res judicata.
19. A few words about the merits of the case before I take leave of the matter. As already mentioned, the appellant's case is that the nature of allegations against him in show-cause notice dated 1-9-1981 and his explanaton in writing, necessitated the holding of a regular inquiry, where he could have had the opportunity of repudiating the respondent's case and establishing that there was substance in the counter-version set up by him and that the impugned order was unjustified. I am of the view that the appellant's contention in this regard is not without substance. Under rule 5(iii) of the Rules it was the competent authority's duty to have decided whether a regular inquiry should or should not be conducted either in the light of the facts of the case or the interests of justice. It does not appear to have been done in this case. I am of the considered view that the allegations against the appellant were of such a nature as required the production of evidence for their proof, which could he made possible only by adopting the procedure laid down in rule 6 of the Rules. A charge-sheet should have been framed with a statement of allegations for a regular inquiry into the matter, where the appellant would have had the opportunity of cross-examining the witnesses; more so when he had set up a positive counter- version in defence. Whatever be the worth of that version and whether it was sound or otherwise, he should in all fairness have been given an opportunity to substantiate it.
20. Therefore, had it not been for the abovementioned considerations of legal nature, I would have held that the impugned order could not possibly be sustained on merits and that it should be set aside with a direction to the competent authority to start the disciplinary proceedings afresh from the stage whence the mistake can be rectified. Despite this point of view, however, the appeal is dismissed as barred by time and having raised a question which has already been finally heard and decided by a competent court. In the circumstances, there will be no order as to costs.
21.Parties to be informed.