ABDUL RAZZAQ A. THAHIM (CHAIRMAN): --The facts of this appeal are that the appellant Mr. Zafar Iqbal was appointed as Sepoy at Gaddani, Custom House, vide appointment letter, dated 15-1- 1986. He performed his duties as such up to 9-4-1987, when he was relieved from his duties on the ground that he had tendered resignation on 1-1-1987 which was accepted with effect from 9-2- 1987, by the Assistant Collector of Custom, Gaddani, vide letter dated 9-4-1987. The appellant challenged this order and preferred an appeal, which was rejected by the competent authority, as per letter dated 16th December, 1993 issued by the C.B.R. The decision was communicated by the Collectorate of Customs and Central Excise, Quetta vide endorsement dated 1-1-1994. The appellant thereafter preferred this appeal before the Tribunal on 16-1-1994.
2. We have heard the appellant. It is argued that he never submitted resignation application but the Assistant Collector, Gaddani passed an order dated 9-4-1987 accepted the resignation of the appellant with effect from 9-2-1987, is without jurisdiction as he was net the competent authority in his case and this action was an instrument in terminating the services of the appellant under the cloak of resignation. It is also argued that he had been trying for redress of his grievance all-along during this long period and the departmental authority from time to time assured him that he will be taken back on duty, but all in vain. ,
3. Mr. Mukarram Jah, Assistant Collector of Customs appeared on behalf of the respondents. He has produced summary of the case and parawise comments, which were under finalization. In the comments it is stated that the resignation application of the appellant was misplaced alongwith his personal file, due to shifting of the office from Gaddani to Hub and the documents are not traceable. He submitted that resignation accepted by the Assistant Collector was an act without jurisdiction as he was not the competent authority to have passed such orders. He submitted that the appellant after a lapse of five years made an appeal for reinstatement. The matter was taken up by the Collector of Customs, Quetta with the C.B.R. And the appeal was rejected by the C.B.R. As such the appeal is time-barred.
4. Adverting to the question of limitation it may be observed that the appellant had been running from pillar to post for redress of his grievance and submitted applications to the departemental authorities. He has placed on record copy of a letter, dated 25-5-1992 addressed by Dy. Collector, Gaddani, Customs House, Karachi to the Assistant Collector, Headquarter, Customs House, Quetta wherein it has been admitted that no record relating to the resignation or removal of the appellant from service was available on their record. It has also been stated that the Assistant Collector was not the competent authority to accept or reject the resignation tendered by a Sepoy. It was also observed therein that since the resignation has been accepted by an unauthorised officer, the application of the appellant is allowed. Lastly when the appellant could not get relief at the level of Deputy Collector he submitted an appeal before the C.B.R. But the same was rejected vide letter, dated 16th December, 1993 on merits and not on the point of limitation. In view of the decision of the Supreme Court reported in 1970 SCM R 170 wherein their Lordships have held that when a departmental authority being fully conscious of the question of limitation, decides the appeal on merits, it shall be presumed that the delay stood condoned. In the case, in hand, although the appellant had been trying his luck right from 1987 in seeking departmental relief but could not succeed, the appeal filed before the C.B.R. Having been rejected on merits, it shall be presumed that delay has been condoned and reference in summary about limitation is immaterial.
5. There are two important factors involved in this appeal firstly whether the appellant ever tendered resignation; and secondly whether the resignation so tendered was accepted by the competent authority. As discussed above, the respondents have in clear words admitted that no record relating to the resignation application and orders passed thereon by the competent authority is available with them. Therefore, the presumption and the benefit will go to the aggrieved person who has clearly stated that he never tendered resignation. From the letter, dated. 25-5-1992 written by Deputy Collector, Gaddani Custom House, which is reproduced: "Government of Pakistan Gaddani Custom House, P.O. Box 834, Karachi G.P.O.
C. No.II/PF/ZI/ESTT/HUB/92/1022Dated 25-5-1992 To, The Assistant Collector (HQRS)
Customs House, QUETTA Subject:APPLICATION OF ZAFAR IOBAL EX SEPOY Please refer to your letter C. No. II-PF-ZI/SEP/92/3230, dated 7-3-1992 on the subject noted above.
The application submitted by Zafar Iqbal, Ex-Sepoy has been examined and it is observed that no record relating to his resignation or removal from service is available in the Custom House, Hub.
However a photo copy of Letter C.No. Resignation/1/87Estt/G, dated 9-1-1987 shows that resignation tendered by Sepoy Zafar Iqbal s/o Asghar AD was accepted on 19-2-1987 by Assistant Collector, Custom House, Gaddani.
In my opinion the said Assistant Collector was not the competent authority to accept or reject the resignation of Sepoy Zafar Iqbal. In the absence of evidence to contrary, it "ms appropriate if the acceptance of resignation by unauthorized officer is declared without authority and application of the Sepoy is allowed.
Encl. One.
(Sd.)
(Syed Tahammul Hussain)
Deputy Collector."
The position that emerges is that the impugned order dated 9-4-1987 passed by Assistant Collector of Custom whereunder the so-called resignation had been accepted by him was without lawful authority, void, ab initio and of no legal effect and such an order, in the eyes of law, cannot sustain.
6. For the foregoing reasons, we accept this appeal, set aside the impugned order, dated 9-4-1987 and reinstate the appellant in service. The intervening period shall be treated as extraordinary leave without pay. No order is made for costs.