' ABDUL HAMEED KHAN KHATTAK (MEMBER).---This appeal is directed against the order dated 21-5- 1992 whereby appellant was dismissed from service.
2. 'Brief facts are that the appellant while serving the respondents Bank as Assistant, Statistics Department, was issued Office Memorandum dated 19/20-2-1991, which is reproduced as under:-- _ "You, Mr. Khawar Mehmood, Assistant, Statistics Department, Head Office, Islamabad are alleged to have committed the following irregularities which amount to misconduct:--
(1) You often come to 'Salary and Advance Wing and talk rudely in connection with your own work or the work of others.
(2) You came in Salary and Advance Wing on 23-1-1991 at about 1-30 p.m. And requested Mr. Abdul Aziz, EAD (Salary) for payment of difference of education allowance to your and three other employees. You were told that Daily Cash Transfer Transactions Scroll had been sent to Payment Wing and as such- payment could not be made that day. You approached Director' (H.O.
Accounts) who advised the concerned Wing to make payment. Voucher and Advice were prepared and Daily Cash Transfer Transactions Scroll were also taken back from Payment Wing for including the said voucher in it. In the meantime you left the Wing and came again at about 2-45 p.m. And enquired about payment of difference of education advance. You were told that the advice had been prepared. On this you became furious and said loudly to the aforesaid officer {{URDU TEXT}} in the presence of the following Officers/Staff of Salary and Advance Wing:-
(1) Mr. Muhammad Anwar, AD Salary. Wing
(2) Mr. Muhammad Rafiq, Sr. Assn. "
(3) Mr. Pervaiz Iqbal, Sr. Asstt.
(4) Mr. Khalil Ahmed, AD
(5) Mr. Muhammad Faris, EAD
(6) Mr. S.M. Kazin' Shah, AD
(7) Mr. Noor Ahmad, Messenger.
' You thus use intemperate, abusive and unparliamentarily language for Mr. Abdul Aziz, created indiscipline and harassm ent of Salary and Advances Wing which resulted in suspension of official work of the said Wing.
' You are, therefore, Called upon under Regulation 4 of AD.PB Clerical and Non-Clerical Staff Service (Efficiency and Discipline) Regulations, 1975 to explain, your position within 10 days of receipt of this Office Memorandum as to why action against you should not be taken under the said Regulations.
' The charge if proved may call for major penalty."
' He was issued yet another Office Memorandum dated 2-4-1991 containing the allegations, which is reproduced as under:-- "You, Khawaja Khawar Mehmood, Assistant, Statistics Department, ADBP, Head Office, Islamabad are alleged to have committed the following irregularities which amount to misconduct:--
(1) On 18-2-1991, you marked advance attendance in Attendance Register for 19-2-1991 despite the fact that you were absent on the said date.
(2) You slipped away from the office on 18-12-1991 at about 2-10 p.m. Without any intimation. You are habitual absentee, and always slip away from the office after marking attendance without any intimation.
(3) You failed to mend yourself despite repeated warnings by Statistics Department.
2. You are, therefore, called upon to explain your position within 7 days of the receipt of this O.M. As to why action against you should not be taken under ADBP Clerical and Non-Clerical Staff Service (E&D) Regulations, 1975."
3. The appellant made replies thereto by making denial of the same, whereafter an Inquiry Officer was appointed who conducted the inquiry and after issuance of show-cause notice and giving chance of personal hearing, vide the impugned order dated 21-5-1992, he was dismissed from service against which the appellant moved a grievance notice to the respondents dated 30-6- 1992 for redressal of his grievance which was turned down on 20-8-1998 whereafter the appellant filed a Petition under section 25-A of I.R.O, 1969 against his dismissal in Federal Labour Court on 9- 8-1992 which was dismissed on 20-6-1997 and then he filed Petition under section 22-A(8)G of I.R.O.
Before the N.I.R.C. On 13-8-1998. The appellant while feeling aggrieved of an interim order of N.I.R.C.
Preferred a Writ Petition No.458 in the Honourable High Court, Rawalpindi Bench and the Honourable High Court directed the N.I.R.C. Firstly to decided objection of jurisdiction before proceeding any further with the result that vide the order dated 30-6-1999, N.I.R.C. Returned the said. Petition with the observation that N.I.R.C. Had no jurisdiction in the matter after insertion of section 2-A in the Service Tribunals Act, 1973 on 10-6-1997, Hence the present appeal was preferred by the appellant before this Tribunal on 5-8-1999 with a prayer for his reinstatement on various grounds as mentioned in the memo. Of appeal.
4. The respondents hotly contested the appeal by raising objections of limitation and res judicata.
On merits too the impugned order was defended.
5. We have heard the learned counsel for the parties and perused the relevant record.
6. We would like to advert to the objection raised by the respondents with regard to appeal being hopelessly time-barred.
7. There is no denying the fact that the appeal is awfully time-barred as the impugned order was passed on 21-5-1992. No doubt he preferred grievance notice within time on 30-6-1992 which was rejected on 29-8-1992. He moved Federal Labour Court Islamabad by making petition under section 25-A of I.R.O. 1969 on 9-8-1992 which was dismissed on 20-6-1997 on merits. Then the appellant did not challenge the order dated 9-8-1992 of Federal Labour Court, Islamabad before Labour Appellate Tribunal hence the same attained finality. Nevertheless he chose another forum i.e. N.I.R.C. Where he made Petition on 13-9-1998 which was disposed of for lack of jurisdiction on 3- 6-1999 and then he approached this Tribunal for the first time on 5-8-1999.
8. Learned counsel for the respondents strenuously argued that the order dated 20-6-1997 passed by Federal Labour Court had attained finality as the appellant did not assail the same before filing appeal to this Tribunal but it may be pointed out that section 2-A was inserted in the Service Tribunals Act, 1973 on 10-6-1997 hence the learned Federal Labour Court lacked jurisdiction thereafter in the matter and the order dated 20-6-1997 passed by it is legally to be considered as coram non judice. Since after insertion of section 2-A in the Service Tribunals Act, 1973 on 10-6-1997 no other Court except Federal Service Tribunal had any jurisdiction to hear the appeal against the impugned order and keeping in view the provisions of section 6 (ibid), the appellant could bring the appeal against his dismissal order before this Tribunal on or before 19-9-1997 as it is specifically given under section 6, that all suits, appeals or applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the commencement of this Act shall abate forthwith.
' Provided that any party to such a suit, appeal or application may, within ninety days of the (establishment of the appropriate Tribunal, prefer an appeal to it) in respect of any such matter which is in issue in such suit, appeal or application."
9. Abatement by operation of law is always ipso facto and there is no A need to obtain any order of the Court in which such application or appeal is pending vis-a-vis abatement proceedings, as was so held in PLD 1976 SC 195. It was inter alia held in this precedent that:-- "Under the substantive part of section 6 the suit abated 'forthwith' on the commencement of the Service Tribunals Ordinance, 1973. Therefore, there is no room for the argument that unless the Civil Court bad declared the suit to have been so abated, the 90 days limitation for the filing of appeal before the Tribunal would not commence. Indeed, the language of the statute is peremptory and the proceedings in the suit abated ipso facto by operation of law and therefore, no formal order of the Court was necessary to terminate the proceedings before it."
10. It transpires that instead of having rushed to this Tribunal within the aforementioned 90 days' period as provided under section 6 (ibid), the appellant had been pursuing further remedy in N.I.R.C. For a long time and this was a step taken by him in wrong direction at his own risk and peril.
The contention that it was so advised by his counsel cannot come to his rescue as mistake of a counsel in approaching a wrong forum due to carelessness, negligence and without due diligence and caution cannot be taken to be a good ground for condonation of the delay. We are supported to hold so from the rule laid down in:-- "PLD 1983 SC 385, 1984 SCMR 890, 1985 SCM R 333, 1975 SCM R 259 and 1991 SCM R 1841."
We may also add here that litigation before incompetent forum does not justify condonation of the delay.
I1. No doubt in the present appeal we find an application made for condonation of the delay, but no valid reason is available therein which could justify condonation of the delay as the appellant seems to have mainly stressed upon the time wasted during the litigation before N.I.R.C. And the Labour Court. We have already held above on the strength of various pronouncement of the Honourable Supreme Court noted above that litigation before incompetent forum through the same may be result of wrong advice of counsel, will not justify condonation of the delay. We may also point out that lastly the N.I.R.C. Held vide its order dated 30-6-1999 that no proceedings before that forum could continue after insertion of section 2-A in the Service Tribunals Act, 1973 on 10-6- 1997. Hence the appellant was advised to approach the proper forum i.e. Federal Service Tribunal but for the reason best known to him the appellant once again as usual wasted 34 days and did not prefer this appeal within one month thereafter. Although legally speaking he could not be allowed to reap advantage of this one month's period after 30-6-1999 as in fact the proceedings stood abated before Federal Labour Court on 10-6-1997 by insertion of section 2-A (ibid) and as already observed by us in the preceding paras the last date for filing of appeal before this forum keeping in view the provisions of section 6 of the Service Tribunals Act, 1973, was 9-9-1997 but the present appeal had been preferred on 5-8-1999 i.e. Almost after an inordinate delay of 25 months.
Hence there was no justifiable and sufficient reason for condonation of the delay. It is well-settled principle that each day's delay is to be adequately and reasonably explained to seek indulgence of Court/Tribunal vis-a-vis condonation of delay, as was so held in: "PLD 1988 SC 144, ' 1993 SCM R 17, ' 1995 SCMR 396, ' 1998 SCM R 307, 785 and ' 1999 SCM R 784."
Aggrieved civil servant does not have unfetterd discretion to make application/appeal at any time.
It is difficult to assume that period of limitation would be dependent upon sweet choice of appellant who might awake up from deep slumber at his own sweet whims possibly waiting for favourable environment to seek redress. Any omission, slackness and negligence cannot be easily ignored or over-looked. Law helps vigilant, diligent and not indolent.
12. In view of the above we do not feel impressed by any valid reason for condonation of the delay, hence such application is turned down and the appeal is held to be hopelessly time-barred.
However, the plea of res judicata fails as the Federal Labour Court had no jurisdiction in the matter after 10-6-1997.
13. With regard to merits, the learned counsel for the appellant strenuously argued that no proper inquiry was conducted nor right of personal hearing was granted to the appellant thus, he was condemned unheard. We have carefully scanned the record but do not feel impressed by any of such contentions. The appellant lost his case before Federal Labour Court on merits where the parties had led evidence and the matter was thoroughly thrashed and as the judgment was not further assailed before the proper forum, hence the same attained finality. Even if same is not taken into consideration in view of insertion of section 2-A in the Service Tribunals Act, 1973 on 10-6- 1997, Yet as per the inquiry proceedings and the material available we are inclined to support the findings of the Enquiry Officer and the impugned order passed thereon. A detailed statement of allegations were supplied to the appellant in the aforementioned two Office Memoranda, although the legal nomenclature of charge-sheet, statement of allegation or show-cause notice or explanation were not given to it rather only Office Memorandum was the heading of same but legally it makes no difference as the object of same was to bring into notice of the appellant the allegations levelled therein for which the matter was to be inquired into and the appellant was definitely put on alert to face those allegations by putting up a defence thereto.
14. From the record it stands established that the appellant had absented himself from duty firstly from 13-3-1992 to 16-4-1992 and for the second time from 17-4-1992 to 24-4-1992. He did not submit any application for leave on medical ground on 17-3-1992 rather he made such an application for the first time on 12-4-1992 requesting for grant of leave from 17-3-1992 to 16-2-1992 and there is no reason mentioned therein as to why he was applying for leave. The said application is no doubt supported by a medical certificate which is dated 17-3-1992 and he was advised complete rest for a month w.e.f. 17-3-1992 and the said certificate clearly appears to have been procured on any date other than 17-3-1992 obviously for the reason that had it been obtained on 17-3-1992, the same must have been annexed to the application for leave forthwith and there was no need for sending of such application as late as 12-4-1992. The other application for leave from 17-4-1992 to 24-4-1992 was also supported by medical certificate and both these medical certificates were alleged to be issued by one Dr. Faiz Ullah Talpur and the ailment mentioned therein is Sciatica. Admittedly the said Doctor was not on the panel of the respondents' Bank thus, he was not authorised to issue such certificate and the respondents had rightly ruled out of consideration such certificates especially when after issuance of the notice, the appellant did not appear before the respondents.
15. As per record the appellant did join the inquiry proceedings and he made a statement before the Enquiry Officer who was cross-examined by him. Not only that the Enquiry Officer rightly concluded in view of the evidence on record that the appellant had used abusive and obscene language in the presence of female employees of the respondents. It transpires that the appellant who claims to be a Union Leader had been misusing his such status in order to blackmail the respondents Bank's officials/officers in order to grind his own axe. The appellant failed to establish on record by producing cogent evidence that either the Enquiry Officer or the persons who complained against him were having any or grouse against him.
16. In view of scrutiny of the record it stands established that fair chance or opportunity to defend himself was given to the appellant during the inquiry proceedings and no prejudice in any manner was caused to him. All the formalities relating to the inquiry proceedings were complied with. If assuming there to be a few minor short comings the same will not render whole of inquiry proceedings as void or useless as there is a hell of difference between departmental formalities to be observed and the modes of taking and evaluation of the evidence during departmental proceedings and a full-dress trial conducted by a Civil or Criminal Court, as the Enquiry Officers are not Law Graduates. The main point involved for consideration is as to whether minimal requirements of conducting such inquiries were observed and whether fair chance to defend himself was provided to the appellant and if any prejudice was caused to the appellant in his defence by any minor infirmities to those proceedings. When this criteria is applied to the inquires held vis-a-vis various charges levelled against the appellant we are fully convinced to hold that the same did not suffer from any material irregularity thereby causing au prejudice to the accused in his defence. The charges were certainly fully within the ambit of gross misconduct and there was no extenuating circumstances vis-a-vis awarding of penalty to the appellant, hence even on merits the appeal fails.
17. The upshot of above discussion is that the appeal is hereby dismissed being time-barred as well as sans merits, by leaving the parties to bear their own costs.
18. Copies of this judgment to be sent to the parties through registered mail.