SHAFIUR RAHMAN, J: --Leave to appeal was granted under Article 212(3) of the Constitution to examine whether a departmental appeal which in fact is filed can be treated by the Service Tribunal as not having been filed in law simply because it was time-barred particularly when the departmental authority had not dismissed it as time-barred.
2. The appellant was an employee of WAPDA. He got two days casual leave for 16th and 17th of May, 1981, but thereafter went on extending the leave. He was asked to report for duty but did, not. He was dismissed from service on 14-2-1982. He filed a departmental appeal, which was required under the service rules applicable to him to be filed within sixty days, on 20-12-1984 i.e. After about two years and 10 months. That departmental appeal remained un-disposed of. He, therefore, filed an appeal before the Service Tribunal on 24th of April, 1985. The appellant filed a number of medical certificates in order to show his prolonged illness accounting for the absence and for the delay in filing the departmental appeal. The Tribunal examined all the medical certificates, found them unsatisfactory and held that the appeal was barred because the appellant had not preferred the appeal within time before the departmental authority and consequently was not within time before the Tribunal.
3. The arguments addressed at the bar before us pertained mostly to the validity and genuineness of the medical certificates and the proper explanation for the delay, which to us appears to be primarily a question of fact. The question of law to be examined under the leave granting order concerns the proper interpretation of section 4 of the Service Tribunals Act, 1973 which reads as hereunder:--- "4. Appeal to Tribunal : -(1) Any Civil Servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him, or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal: Provided that:--
(a) where an appeal, review or representation to a departmental authority is provided under the Civil Servants Act, 1973, or any rules 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 preferred;
(b) no appeal shall lie to a Tribunal against an 'order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade; and
(c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the 1st July, 1969.
(2) Where the appeal is against an order or decision of a departmental authority imposing a departmental punishment or penalty on a civil servant, the appeal shall be preferred.
(a) in the case of a penalty of dismissal from service, removal from service, compulsory retirement or reduction to a lower post or lime-scale, or to a lower stage in a time-scale, to a Tribunal referred to in subsection (3) of section 3; and
(b) in any other case, to a Tribunal referred to in subsection (7) of that section.
Explanation: In this section, `departmental authority means any authority, other than a Tribunal, which is competent to make an order in respect of any of the terms and conditions of civil servants."
4. There are two features of this section 4 which are relevant for our purposes. In the first place, unlike the general law final order has been taken to be one which is yet to become final on appeal i.e., one which is not yet final and still under examination by the appellate authority. Secondly by using the negative language that `no appeal shall lie to the Tribunal', it has been made to satisfy itself of the departmental rules existing for whether in terms of it an appeal has been filed or not. In the case before us, the appeal was not filed within time. The Tribunal was, therefore, concurrently with the appellate authority and independently of it also this mandate to examine the reasons and to deal with them, if the authority had not already dealt with it. The jurisdiction of the r was not, therefore, lacking.
5. If the departmental appellate authority while dealing with the appeal upon its own investigation passes any order with regard to the question of limitation concerning the appeal before it the appellate order will yet become itself a final order in terms of section 4 of the Service Tribunals.Act and independently be a subject-matter of appeal before the Tribunal.However, such an appeal will not lie on the condonation or refusal to condone3 the delay but with regard to the appellate order on merits, the relief to be granted or not to be granted.With the departmental authorities the condonation of delay is discretionary matter.In the circumstances, the exercise undertaken by the Service Tribunal was within its juridiction and the finding of fact recorded cannot be said to be suffering from any infirmity.The appellant can certainly avail of second round of Service Tribunal if the appellate authority passes an order on merit condoning the delay that has taken place in the filing of the appeal before the departmental Authority.There is no mechanism provided in the Service Tribunal Act whereby the disposal of an appeal pending with a departmental authority can be ensured.
6. The appeal is dismissed with no orders as to costs.