' SH. RIAZ AHMED, J.---This appeal through leave of this Court is directed the judgment, dated 4-4- 1993 delivered by the Federal Service Tribunal whereby an appeal filed by the respondent calling in question the proceedings taken against him for the recovery of certain amount which the Railways Department was obliged to pay to an employee illegally appointed and removed from service, was partly allowed.
2. The facts in brief giving rise to the institution of this appeal are that the respondent was serving as Electrical Foreman (Power) in the Railways Department at Rawalpindi. According to the respondent, on the verbal orders of A.P.O., Quetta, he appointed one Abdur Razzak as a Khalasi on ad hoc/contract basis. Said Abdur Razzak served from 6-5-1984 to 14-7-1984. On 15-7-1984 the said Khalasi absconder) from duty and, thus, his services were terminated. Abdur Razzak assailed the order of his removal from service by invoking the jurisdiction of the Balochistan High Court as well as the Labour Court and the Labour Appellate Tribunal. Abdur Razzak succeeded and was reinstated and his absence from duty was condoned and a direction was given that since the date of his appointment i.e, 6-5-1984, he should be treated in continuous service. Consequent to his reinstatement, the Department then worked out payment of salary to Abdur Razzak. A notice was, thus, issued to the respondent directing him to prepare the bills of arrears of salary of Abdur Razzak for its submission to the Divisional Accounts Officer, Quetta for audit and payment before 14-12- 1987. The respondent complied with the said order. The department considering that it had to make a payment of Rs,37,514 as arrears of salary to Abdur Razzak, Khalasi, on account of illegal action taken by the respondent, the respondent has misconducted himself in violation of the service discipline and rules. Accordingly, the respondent was proceeded against and a charge-sheet dated 31-1-1990 was served alongwith the statement of allegations upon the respondent. The respondent submitted reply denying all the charges against him.
3. On 1-4-1990, the Divisional Superintendent, Pakistan Railways, Quetta, ordered the recovery of Rs,37,514 in lump sum from the respondent's general provident fund because he had engaged Abdur Razzak Khalasi on his own accord. Subsequent thereto, the above order, dated 1-4-1990 was withdrawn on 15-1-1991 as the Railways Headquarters office at Lahore did not agree with the action taken against the respondent. On 2-12-1991 a sum of Rs,700 as first instalment was deducted from the salary of the respondent towards the recovery of the amount as aforesaid. Aggrieved by the said deduction the respondent filed departmental appeal on 21-12-1991 and before the expiry of the statutory period of 90 days the respondent invoked the jurisdiction of the Federal Service Tribunal.
The appeal was heard by three members of the Tribunal. One of the learned members came to the conclusion that the appeal was barred by time inasmuch as vide order, dated 1-4-1990 the respondent was held responsible for the loss of Rs,37,514 on account of engagement of a Khalasi on his own accord and, thus, it was directed that the said amount be recovered from the respondent. Against the said order, the respondent had filed representation on 24-8-1991, which was barred by time whereas the period provided for filing departmental appeal was 30 days, which expired on 1-5-1990. It was held that the said order was cancelled and the cause of action had accrued to the respondent only when an amount of Rs,700 was deducted from his salary vide letter, dated 15-1-1991 and, therefore, the appeal was 'not barred by time. The learned member of the Tribunal opined that assuming the cause of action arose to the respondent on 15-1-1991 even then the appeal filed by him was premature because he had invoked the jurisdiction of the Tribunal without waiting for the statutory period of 90 days. On this score, one of the learned members as aforesaid dismissed the appeal being barred by time. The other two members of the Tribunal, however, took a different view. It was held by them that although, prima facie, the appeal was barred by time, but a deeper probe justified infliction of a lighter punishment. The learned members further opined that the Department was also responsible for the period involved due to its failure to defend the appeal, which had been heard and disposed of by the learned Labour Court. In the dissenting note, the learned members also held that engaging Abdur Razzak Khalasi on irregular basis by the respondent did not justify the recovery of the full amount of the arrears of salary i.e, Rs,37,514 from the respondent because the Department fully knew the engagement of Abdur Razzak as a Khalasi, who had been working in the Department before he absconded. Not having objected to the appointment of Abdur Razzak when his name was brought on the master roll, the respondent, therefore, could not be held responsible for the recovery of the full amount. In the light of this reasoning two learned members held that on account of the misconduct of the respondent, he was liable to pay half of the amount i.e, Rs,18,757 and, thus, with this modification the two learned members of the Tribunal dismissed the appeal.
4. We have heard the learned counsel for the appellants and the respondent at length. In fact, the matter was not referred to the third member of the Tribunal on account of difference of opinion between two members of Tribunal. The record reveals that the appeal was heard by three members and two learned members had taken a different view as compared to the third learned member. Under the provisions of section 3-A of the Service Tribunals Act, the majority decision has to prevail. It was, therefore, wrongly assumed that on account of difference of opinion between two members, reference had been made to the third member. Consequently, we are of the view that the judgment impugned, i.e, the majority judgment does not suffer from any flaw. The question of limitation loses significance when the majority view was that the in-action on the part of the Department justified the filing of the appeal after expiry of the time. It is, thus, clear that the delay, if any, in filing the appeal before the Tribunal was condoned by virtue of the majority decision.
5. Consequently, this appeal fails and is hereby dismissed leaving the parties to bear their own costs.