MUHAMMAD BASHIR JEHANGIRI, J.---The Chairman, Area Electricity Board, WAPDA, Peshawar and 3 others have filed this petition for leave to appeal against the judgment of the Federal Service Tribunal, dated 9-6-1998 whereby appeal of the respondent employee was allowed and penalty of his removal from service was set aside and he was reinstated in service with all back benefits but was held disentitled to arrears of pay for the period during which he remained behind the bars and filing of his appeal in the Tribunal.
2. The respondent, a Bearer in WAPDA Rest House, Peshawar Cantt. 'D' Division, WAPDA, was served with a notice published in Daily 'Jiddat' Peshawar, dated 12-9-1991 as to why he was absent from duty with effect from 1-8-1991 and was directed to resume duty within a week, failing which, he would be proceeded against under WAPDA Employees (Efficiency and Discipline) Rules, 1978 (hereinafter referred to as the Rules). Simultaneously the petitioners happened to know that the respondent had been charged in a murder case, which fact was got confirmed from S.H.O., Police Station Mathra, District Peshawar. As the respondent had not informed the petitioners about the registration of the case of murder against him, and his consequential absence from duty, the authorised officer decided under Rule 5(i)(iv) of the Rules that it was not necessary to have an inquiry conducted through an Inquiry Committee or Inquiry Officer. The Authorised Officer, therefor* discharged the respondent from service with effect from 13-8-1991. The respondent, after his acquittal from the Peshawar High Court, filed an appeal to the Wafaqi Mohtasib which was dismissed as not maintainable. On 12-6-1995 he filed departmental appeal. In the meantime "the respondent was called' to resume duty but he failed to attend the office of the petitioners. The respondent ultimately filed an appeal on 13-11-1997 before the Tribunal which was accepted and was communicated to the petitioners reaching them on 20-6-1998.
3. The Tribunal observed in its impugned judgment that the learned counsel for WAPDA initially contested the appeal on merits as well as on limitation but 'when he was apprised about the legal implications of his acquittal from the charge of murder, he stated at the bar that for a considerably long period the respondent did not perform duty, therefore, while reinstating him in his service he should not be held entitled to the arrears of pay. In this context reference was made to an application made by the petitioner. On merits that is why the learned Tribunal had observed:-- "It is a fact that the appellant was performing his normal duties in routine but for his involvement in a criminal case he was terminated from service and now with the acquittal from the charge, the blame no longer is in his way and thereby stands absolved as it he was not involved in a case being found innocent. Having joined service under the respondent-Authority on 16-12-1985, by now he has rendered about 12-1/2 year's service as a regular employee. We have condoned the limitation, if any, in the ends of justice specially when he stands absolved from the charge."
4. Mr. Muhammad Latif, learned Advocate Supreme Court, appearing on behalf of the petitioners contended that the, departmental appeal filed by the respondent was not only hopelessly barred by time but also the learned Tribunal had shown indulgence to the petitioner both in condonation of delay in filing the appeal by the respondent and also on merits.
5. The record of the case would show that by their letter dated 22-1-1996 the petitioners' high ups had directed that as the respondent had been acquitted of the charge of murder by the High Court, on account of which he had been removed from service, he may be reinstated in service.
Again assertion that the deplmental appeal filed by the respondent was barred by time is negated by the conduct of the petitioners themselves. The perusal of letter dated 17-11-1996 issued by the petitioners would reveal that he was "directed several times to attend the office in connection with his reinstatement but he has not yet turned up". In this view of the matter, the effect of delay if any in filing appeal was impliedly condoned. Be that as it may, the plea that the departmental appeal of the respondent was time-barred was not taken before the Tribunal. The petitioners are, therefore, not allowed to take up this plea for the first time in this Court.
6. Admittedly the respondent had been pursuing his remedy in good faith before the Wafaqi Mohtasib which was not entertained in view of Article 9(2) of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1982. The respondent was further directed to seek his remedy in the competent forum if he was so allowed. In this view of the matter and also being conscious of the acquittal of the respondent from the charge of murder, the Tribunal in its discretion had condoned the delay in filing the appeal filed by the respondent. The learned counsel then invited our attention to the fact that another learned Bench of the Tribunal which was seized of the identical Appeal No,72(D) of 1995 filed by Amir Nawaz, who was a co-accused with the respondent in the murder case had dismissed it on the ground of delay. If two Benches of the Tribunal had differed in their approach to the bar of limitation in a matter it may furpish a ground for grant of leave to appeal but the rule is not of universal application. There can be valid exceptions keeping in view the peculiar circumstances of each case the Tribunal had exercised the discretion in favour of an employee to condone the delay and if the discretion so exercised was not perverse, capricious or inequitable, this Court would be slow in interfering in- the discretion exercised by the Tribunal.
7. In any case, as the order of discharge of the respondent from service was found by the Tribunal to be ill-founded, it was a good case for condonation of delay.
8. Lastly, as the record would reveal the competent Authority held the view that no formal inquiry was called for in the case against the respondent. Accordingly the procedure laid down in rule (iv) of the Rules was resorted to. This shows that having received no response on the ground of this notice dated 26-10-1991 another one dated 11-12-1991 and the publication of notice dated 12-9-1991 in the Daily "Jiddat", Peshawar, which evidently was not responded due to the arrest of the respondent, he was "discharged from service", without specifying whether he had been proceeded against under rule 5(iv) or rule (ii) of the Rules. Since no Inquiry Officer was appointed, the inference is irresistible that resort had to rule 5(iv) of the Rules. Nonetheless the competent Authority in the notices dated 26-10-1991 and 11-12-1991 had furnished no grgaind for decision to proceed under rule (iv) (ibid). Again in neither of the notices, the respondent had been informed of the action proposed to be taken in regard to him and the grounds of the action therefor. Rule 5(v)
(b) provides that the legal requirement of rule 5(iii) to indicate the penalty to be imposed and asking the accused to show cause and affording an opportunity of personal hearing shall also apply to cases where the delinquent employee was called upon to explain under rule 5(iv) and the explanation by him was found unsatisfactory or no explanation was received. These were the serious irregularities which had occasioned miscarriage of justice. Even if the notice dated 11-12- 1991 is fs taken to be the second notice, there is no evidence that either the first notice dated 26-10- 1991 and that dated 11-12-1991 was served upon the respondent. But even if he had been so served, the competent Authority was legally bound to serve him with a second show-cause notice in terms of rule 5(v)(b) of the Rules. The failure of the respondent to submit an explanation in writing did not exonerate the petitioners from service of second show-cause notice in complying with the statutory requirements. This omission would be sufficient to vitiate the impugned disciplinary action taken against the respondent.
9. In this view of the matter we are not inclined to grant leave to appeal in this case. The petition is accordingly dismissed.