' GHULAM SARWAR KHERO, (MEMBER-I).--This is second appeal under section 4. Of Sindh Service Tribunal Act, 1973 filed by the appellant Mehar Ali.
2. The appellant was appointed as Constable in Excise and Taxation Department on 21-9-1992. He alongwith many others was terminated from service vide order dated 24-8-1995 passed by the Director Excise and Taxation, Larkana Division. He challenged the said order in his departmental appeal dated 21-9-1995 addressed to the Director-General, Excise and Taxation, Karachi, which according to the appellant was not decided for considerable period, he sent an application to the Chief Secretary, Sindh which as stated by the appellant was sent to Secretary, Excise and Taxation Department, Government of Sindh, who vide order dated 25-10-1999 rejected the same. Feeling aggrieved the appellant filed Appeal No, 318 of 1999 but the same was withdrawn by the appellant and was dismissed as such on 13-3-2000.
3. The appellant than again approached the Department but vide order dated 9-5-2000 his appeal was rejected by the Director General. Excise and Taxation, Karachi. Against which the appellant has filed the instant appeal before this Tribunal on 22-5-2000.
4. The respondents filed their separate written statements wherein they justified the termination order of the appellant and challenged the very maintainability of appeal on the ground that this second appeal is incompetent.
5. The learned counsel for the appellant has argued that in fact the appellant at initial stage preferred departmental appeal to the Director General, Excise and Taxation, Karachi, who could not respond as such the appellant approached the Chief Secretary, Sindh who rejected the appellants request vide order letter dated 25-10-1999 against which the Appeal No,318 of 2000 was filed by the appellant before this Tribunal, but since the Chief Secretary, Sindh was not competent to pass any order, the appellant withdrawn said Appeal No, 318 of 2000 with condition to file fresh appeal after obtaining the final order from the Departmental Appellate Authority. He stated that when departmental authority rejected the appellant's appeal a fresh cause of action was accrued to the appellant as such the instant appeal has been filed which is very much maintainable and competent. He submitted that since first appeal was not decided on merits as such the principles of res judicata embodied in section 11, C.P.C. Are not attracted to the facts of the case. He has relied upon PLD 1990 Lahore 352.
6. The learned A.A.-G. In rebuttal has submitted that the appellant had simply withdrawn his earlier appeal and could not obtain permission to file fresh appeal as such the instant appeal is barred not only under section II C.P.C., being res judicata but also under Order XXIII,. Rule 1(3), C.P.C. Which provided that where the plaintiff withdrawn from a suit without the permission of the Court, he shall be precluded from instituting any fresh suit in respect of such subject-matter.
7. We have considered the above legal submission and have gone through the material placed before us.
8. It is well-settled principle of law that the Civil Servant aggrieved by any final order. Whether original or appellate, has a right of filling only one appeal before this Tribunal. He has, however, two options and it is for him to chose one of the two options. He can either wait for the final order on his departmental appeal or if the departmental authority has not passed the final order on his appeal, he can file an appeal within 30 days of the expiry of the statutory waiting period of 90 days. In this connection reference is invited to a case of Qadir Bux v. Province of Sindh and another 1982 SCMR 582, wherein the Honourable Supreme Court of Pakistan has observed as follows: "6. When a Civil servant has filed an appeal on representation before a departmental authority, as required by the above mentioned proviso, he has two choices before him:
(i) he can either wait for such authority to pass the final order on his appeal, review or representation, no matter how long it takes. He can then file an appeal against the final order before the Service Tribunal within a period of 30 days, as provided by main portion of section 4, or
(ii) after the passage of 90 days, if the departmental authority has not yet passed the final order on his appeal or review, etc. He can file an appeal directly against the earlier order of the departmental authority, before the Service Tribunal."
9. In the instant case the appellant had challenged the original final order dated 24-8-1995 before the Departmental Authority as required by section 22 of the Sindh Civil Servants Act, 1973 which despite lapse of considerable period, was not decided by the authority concerned. The appellant at that time instead of filing service appeal before this Tribunal after expiry of 90 days statutory period waited for the decision on his departmental appeal. The said departmental appeal was ultimately rejected by the Chief Secretary, Sindh vide order dated 25-10-1999. Against which the appellant had filed Appeal No, 318 of 1999. He had thus exercised his second option at that time.
The said appeal was withdrawn by the appellant and was dismissed as such on 13-3-2000. He then again approached the Director General, Excise and Taxation, Karachi but appellant's request was declined. In such circumstances he has filed this appeal by stating that he had withdrawn the earlier appeal with condition to file fresh appeal after obtaining the final order from the departmental authority. The appellant's version that he had withdrawn the earlier appeal with a condition to file fresh appeal after obtaining the final order is not borne out from the record and as such is baseless. In fact the appellant had simply withdrawn his earlier appeal. He had neither requested for permission to file fresh appeal nor any such permission was accorded to him. His second contention that his earlier departmental appeal was rejected by the Chief Secretary who was not competent as such he after withdrawal of first appeal, approached the appropriate concerned departmental authority and after obtaining rejection order he has filed this appeal, is not tenable in the circumstances of the case. If it was so, the appellant had full right to raise that objection in his earlier appeal at that time, which admittedly was not taken raised by him. In fact the appellant had himself moved application to the Chief Secretary, Sindh for redressal of his grievance. The learned counsel for the appellant has relied upon a case of Muhammad Azhar v.
General Manager, WAPDA, PLD 1990 Lahore 352, but the same has no application so far the facts and the law points involved in the instant appeal are concerned.
10. The contention of the learned counsel for the appellant that res judicata will only operate when the case is decided on merits though has some force but the appellant's earlier appeal against original termination order and rejection of his representation was withdrawn, the termination order thus attained finality. Nevertheless he cannot be allowed to challenge the same order again and again. Under the law once the matter has been adjudicated upon the same cause of action it cannot be reconsider of the same case. Therefore, the matter falls within the principle of res judicata. Even if it is presumed that the principle of res judicata would not be strictly applicable, Order XXIII, rule 1(3), C.P.C. Shall be attracted. According to it, if a proceeding is withdrawn without permission to institute further proceedings on the same cause of action then fresh proceedings on the same issues are barred. Reference is invited to a case of Nazir Ahmad v. Secretary, Government Punjab and others, 1986 PLC (C.S.) 774(788).
11. For the aforesaid reasons, we are of the considered view that this second appeal is not maintainable. The same is accordingly dismissed. There will be no orders as to costs.
' Given under our hands and the Seal of this Tribunal this 7th day of November, 2001.