SARDAR MUHAMMAD SAJAWAL KHAN (CHAIRMAN).--The instant appeal is directed under section 4 of the Service Tribunal Act to impugn the Government Order No, 15439-44/S-S/88, dated 9-7-1988 by which two appeals of the appellant dated 26-4-1986 and 11-10-1988 brought against the order of District Health. Officer Mirpur No, 7055-57, dated 15-12-1974 were ejected as time-barred.
2. The relevant facts constituting the background of this appeal are that the appellant who was serving as Head Dispenser in the Health Department was ansferred from Kotli to C.M.H. Rawalakot and after reporting himself for duty at his new place of posting he left for home situated in Kotli Tehsil on three days casual leave and did not return back to resume his official duties, at Rawalakot. He applied for two months privilege leave on the ground that there was none to attend his ailing son at home and for that reason his presence at home was indispensable. Subsequently, he made another application for six months' leave on private affairs but the leave applied for was refused to him and he was asked to appear before the Officer Commanding C.M.H. Rawalakot. The appellant did not respond to the notice of Officer Commanding C.M.H., Rawalakot and made another application to the authorities concerned that if his leave was not granted, he might be posted at Kotli where he could do his job conveniently in addition to taking care of his ailing son.
Later on the appellant was dismissed from service for his absence from duty under the impugned order made by the District Health Officer, Mirpur. An appeal was taken up by the appellant before the Health Minister of Azad Government who at the relevant time held the office of Chief Executive also to impugn the aforesaid order of dismissal but the same was not successful and he then brought another appeal before this Tribunal which was also dismissed in limine on the ground that it was not submitted by him to this Tribunal after availing of the departmental remedy in law. In its order, dated 30-4-1980 it was held by this Tribunal that by way of departmental remedy, the proper forum for the appellant was to bring his appeal before Director, Health Department and not to the Chief Executive and since the appellant failed to choose the proper forum provided in the Service Rules for availing of his departmental remedy, his appeal was incompetent before the Tribunal.
Despite the clear verdict of this Tribunal, the appellant instead of filing an appeal before Director, Health Department brought a review petition against the impugned order before Director of Health Services and the Prime Minister but both the petitions were dismissed alongwith another appeal submitted to the Prime Minister at a belated stage.
3. The appellant's prayer is that he was removed out of service by an order of District Health Officer, who was not competent to make that order. The order being void ab initio, limitation does not run against him and as such the impugned order passed against him be quashed and set aside and the appellant may be reinstated on his post alongwith all service benefits.
4. The appeal was admitted by a short order dated 6-8-1988 passed by Mr. Siddique Farooqi former Chairman of this Tribunal although the relevant points to be determined by this Tribunal were not specified in that order. In the written objections filed on behalf of the respondents, it was pointed out that since the first regular appeal against the impugned order brought before this Tribunal was dismissed on 30-4-1980, the present appeal was hit by the principle of res judicata. It was further submitted that the D.H.O. Mirpur had obtained the previous approval of Director Health Services before making the impugned order and hence he was quite competent to make that order. The appellant has not availed of his departmental remedy well in time before the proper forum, hence his second appeal was also incompetent before this forum.
5. We have heard the arguments as were addressed in this case by learned counsel of each party.
It is contended on behalf of the appellant that the appointment of the appellant as Head Dispenser was made by the Director Health Services/Secretary Health Services and as such he was alone competent to make the impugned order. But in the instant case the impugned order was made by District Health Officer, Mirpur who had no jurisdiction to pass that order. It is further submitted by the learned counsel for the appellant that the impugned order is void ab initio and to be viewed in law as non-existent. The order has been made without following the relevant prescribed procedure and hence the limitation does not run against the appellant and the present appeal before this Tribunal is maintainable despite lapse of a period of 14 years. In support of his contention, he relies upon 1987 PLC (C.S.) 315, 321.
6. There is no denying the fact that a similar appeal against the impugned order was brought by the appellant to this Tribunal long before and the same was dismissed in limine by a short order of this Tribunal dated 30-4-1980. In that order it was held that the appeal before this Tribunal was incompetent because of the fact that the departmental remedy available in relevant service rules was not availed of before the proper forum which in case of appellant was Director Health Services.
But instead of filing an appeal before Director Health, the appellant moved a review petition before Health Minister for reviewing his order dated 7-8-1979. Subsequently, he filed another review petition before Director of Health Services on 6-9-1985. After that he filed another appeal before the Health Minister on 10-12-1985 and an appeal to the Prime Minister on 1-4-1987. But all his petitions and appeals were not successful and ultimately once again he was advised to file second appeal before this Tribunal against the impugned order.
7. For arguments sake if for any reason, the appellant is considered entitled to bring a second appeal against the impugned order, he should have come with clean hands to the Tribunal within a period of 30 days from the date of order passed at the proper forum by the Departmental Authority. But from the record placed on the file it is proved beyond any doubt that the appellant failed to choose the proper forum even at the second stage also although in the order dated 30-4- 1980 passed by this Tribunal, it was clearly laid down that for the redress of his grievances the proper forum for availing of departmental remedy was Director Health. But instead of filing an appeal before the proper forum, he led himself astray and filed a review petition before D.H.S./Secretary Health Services on 6-9-1985 without making any prayer for setting aside the impugned order. Therefore, in our view the position is still the same that the departmental remedy has not been availed of by the appellant before the proper forum as yet and the appeal is not maintainable on that account.
8. Now we revert to the merits of the case. It is available on the record that the appellant was in the service of Health Department and was performing his duties as Head Dispenser in Health Department. Unfortunately, he was transferred and posted at Rawalakot where he was probably having no idea to render his services. It was this reason that he left for his home on 3 days leave and did not join back to resume his official duties at his new place of posting. At the relevant time the services in gazetted and non-gazetted cadres were governed by section 32 K.S.R. by which it was mandatory for the Head of Office to first supply the charge-sheet to the person at fault and then after holding a proper inquiry as to his guilt he was to issue a show-cause notice to him for explaining his omission/fault. But in the instant case, no proper inquiry was held nor the appellant was served with a show-cause notice. The impugned order is reproduced below for proper appreciation:-- "No, 7055-57/DHO/74 Office of the District Health Officer, Mirpur (A.K.)Registered Ack. Due.
Dated the 15th Dec.,1974.
To, Mr. Sadiq Hussain Qureshi, Head Dispenser, Village Roli, Tehsil and District Kotli (A.K.).
Subject:-Absent from duty/dismissal from service You remained absent from your duty station w,e,f, 16th September, 1974. As such you were served two Notices vide our No, 5699-5702/DHO/74, dated 16th November, 1974 and 5885-88/DHO/74, dated 25th November, 1974 respectively to report for duty at your posting station at Rawalakot. You failed to do so. The Director Health Services was kept in close touch with all these events.
2.Since you failed to join your duty, the Director of Health Services has observed that you are not a suitable employee in the Health Department.
3.You are therefore, dismissed from service vide KSR-Vol.I, Article No,128-1 w,e,f, 16th September, 1974.
Sd/- District Health Officer, Mirpur (A.K)."
The order itself shows that it was not passed as a result of any inquiry nor any show-cause notice was issued to the appellant. The order was made by the District Health Officer, Mirpur after noting down the observations of the Director Health Services without adverting to the relevant rules which necessitated the holding of proper inquiry and issuing of show-cause notice to the appellant. There is no denying the fact that the D.H.O. hurriedly made the impugned order and failed to carry out the mandatory provisions of Service Rules as were pointed out to him in the second part of the directions passed on to him by the Director of Health Services. Under the Service Rules prevalent, the order was to be made by the Director Health Services and not by the District Health Officer, Mirpur who absolutely had no jurisdiction for making the impugned order.
9. The impugned order is patently found illegal and there is little doubt about it that it was made by an officer of the Health Department who held no powers to make that order. But the question for determination before this Tribunal is that whether each and every void order is to be struck down regardless of the consequences of its decision and without considering the merits and other aspects of the case materially concerned with the shortcomings of the appellant. It is pertinent to note here that it would be a dangerous attempt to apply this principle on wholesale basis that a void order is ordinarily to be set aside by a Court of competent jurisdiction or a Tribunal without having any regard to other considerations. In the instant case, the appellant is seeking his relief after a period of 14 years and at this stage, it would be difficult to grant him relief prayed for for the reasons given in the succeeding paragraphs. In this connection, a passage from the judgment of Supreme Court of Pakistan given in the case reported as Sharif Ahmad Hashmi v. Chairman Screening Committee 1978 to be cited as 1978 SCMR is reproduced below for guidance:-- "Additionally I have to observe here that the petitioner assumed in his arguments before us that a Court always struck down a void order regardless of the consequences of its decision. The assumption is a total fallacy, because a void order is only a type of an illegal order. This is described as void because it is so illegal that it does not exist in the eyes of the law, but this does not alter the fact that it was passed and by describing it as void Courts cannot alter the fact that the order was passed. And an order which has been passed can create consequences, therefore, there cannot be a hard and fast rule that void order must always be struck down. The true position has been clarified by Mr. Justice Munir, C.J., with usual lucidity (I say so with respect) in Yousaf Ali v.
Muhammad Aslam Zia PLD 1958 SC (Pak.) 104, where Mr. Justice Munir, C.J. observed at page 117:-- "And if on the basis of a void order subsequent orders have been passed either by the same authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognising as legal the changed position, of the parties is in operation, fall to the ground because such orders have as little foundation as the void order on which they are founded.
This passage does not mean that a void order is always to be struck down regardless of the consequences of such a decision, but that a void order must be struck down provided there is no statute or principle of law which would make it unjust or inequitable to strike down the void order.
This qualification is very important, and that is why, for example, a writ may be refused against a void order if this would enable the petitioner to circumvent the provisions of a statute of limitation.
(See this Court's judgment in Civil Appeals 150 and 166 of 1970 Jalal-ud-Din and others v. Mst. Noor Sain and others and Jalal-ud-Din and others v. Shamas-ud-Din and others respectively).
Similarly in Ghulam Mohi-ud-Din v. Chief Settlement Commissioner and others PLD 1964 SC 829 a writ petition had been filed against an order which this Court held was void. Nonetheless, the writ petition was dismissed on the ground that it was barred by acquiescence on the part of the petitioner. There is also ample authority for the proposition that a writ against a void order may be dismissed if the petitioner is estopped by his conduct from challenging it or if he has been guilty of laches."
As the law laid down by the Supreme Court of Pakistan in Sharif Ahmad's case is that a person by his conduct or acquiescence makes transaction impeachable by him, unimpeachable after a lapse of time. The doctrine of laches is not an arbitrary or technical doctrine. In a case in which it would be practically unjust to grant remedy either because the party has by his conduct done that which might fairly be regarded as tantamount to a waiver of the remedy or where he has by his conduct and neglect, though perhaps not waived the remedy yet has rendered the situation of the other party such as it would not be reasonable to render it; in both these cases lapse of time and delay are most material if afterwards the remedy is asserted by the party making delay.
10. It is no doubt that the impugned order by which the appellant was dismissed out of service is a void order and it to be deemed non-existent in law. But if a relief is claimed against that order held to be a void order, the remedy available in law must be availed of at the proper forum before approaching this Tribunal. In the instant case the appellant did not bother to bring any appeal before the proper forum even uptill now and there does not seem anything unjust or inequitable so as to justify the striking down of the void order. In fact the appellant by his conduct and acquiescence has rendered himself not entitled to the relief sought for. In the given circumstances of the case, we feel ourselves well-convinced that the appellant by his conduct and acquiescence has missed the departmental remedy in law before approaching this Tribunal and he is not entitled to any relief. The law helps the vigilant and it does not help the indolent. The appellant having left the service at his sweet will and having remained out of the department for a fairly long time cannot be brought back to his office at this stage when he has almost exhausted all the necessary qualifications required for the performance of his official duties. Hence this formula does not find favour with us that each and every void order is to be struck down even if the departmental remedy provided in service rules is not availed of before the proper forum. Since the appellant is found to have rendered himself guilty of delay in pursuing his departmental remedy in law for the redress of his I grievances, we are left with no choice but to reject his appeal.
11. The upshot of the above discussion is that we find no force in this appeal and the same is hereby dismissed.