' MUHAMMAD KHURSHID KHAN (CHAIRMAN).-Rashid Ahmad Saddozai, while posted as Nazir, Board of Revenue, North-West Frontier Province, Peshawar, met with an accident on April 5, 1974, and as a result thereof was admitted to the Lady Reading Hospital, Peshawar. While he was in the Hospital, Mr. Iqbal Ahmad Mufti, an Assistant in the Board of Revenue, assumed the charge of the post of Nazir and opened the safe in the presence of three officials of the department. Rashid Ahmad was found to have committed certain irregularities/illegalities and was consequently served with a charge-sheet. Mr. Abdur Rashid, Deputy Secretary, Board of Revenue, was appointed as Enquiry Officer to hold inquiry into the charges against him. After the conclusion of the inquiry, the Enquiry Officer submitted his report. The Member, Board of Revenue, on examining the inquiry report, was of the view that the Enquiry Officer had not given clear findings of innocence or guilt of the accused- official and consequently referred the case back to the Enquiry Officer to do the needful within fifteen days. On 31st of January 1975, the Member, Board of Revenue, debarred Rashid Ahmad from promotion for five years with effect from January 30, 1975. He sought review of the aforesaid order but could not succeed and his review petition was rejected on 18th of March, 1975, whereupon he came on appeal to this Tribunal.
2. In the appeal before this Tribunal, the Member, Board of Revenue, was represented by Mr. Abdur Rauf, Assistant Secretary of the Board. During the course of arguments, Mr. Abdur Rauf endorsed the contention of the learned counsel for the appellant that the Member, Board of Revenue, had passed the impugned order dated 31-1-1975 without waiting for the findings of the Enquiry Officer on the reference made to the latter. In view of this position, we allowed the appeal on March 17, 1977, set aside the impugned order and directed the Member, Board of Revenue, to pass fresh orders after obtaining the findings of the Enquiry Officer as also after taking them into consideration.
3. The Member, Board of Revenue, sought review of our order dated March 17, 1977, on the ground that the representative of the Board, namely, Mr. Abdur Rauf, due to ignorance of the facts, had misrepresented before this Tribunal that the impugned order had been passed before the receipt of the report from the Enquiry Officer and that in actual fact, the said report was before him at the time of passing the impugned order. On the receipt of this reference, we summoned the parties in consequence whereof appellant, and Masood Jan, Assistant as representative of the Member, Board of Revenue, appeared before us. On examining the relevant record, we found that the position taken up by the Member, Board of Revenue, in the reference made to this Tribunal, was well-founded. In view of this factual position, the appellant, on 19th of February 1978, made a statement before us saying that he had no objection if the impugned order was reviewed and the appeal was admitted to re-hearing. By an order of the same date, the impugned order was reviewed and re-hearing of the appeal was ordered by us.
4. Mr. Muhammad Safdar, Superintendent, appearing on behalf of respondent No, 1 before us, raised an objection with regard to the competency of the present appeal before this Tribunal and contended that the appellant could not approach this Tribunal without availing himself of the right of appeal to the departmental authority prescribed by the departmental Rules and further that he was not entitled under the law to question the quantum of punishment imposed upon him by the Member, Board of Revenue. Controverting this position, the appellant maintained that the appeal was competent and there was no substance in the objection raised by the other side.
5. It may be stated at the very outset that the appellant, in the grounds of appeal, has not specifically questioned the legality of the inquiry proceedings nor has he challenged the competency of the Member, Board of Revenue, to order inquiry into the charges against him or the competency of the Enquiry Officer to proceed with the inquiry. A perusal of the grounds of appeal would, however, show that the appellant's claim in its nutshell is that the conclusion arrived at by the Enquiry Officer and the punishing authority was not justified from the facts and circumstances of the case and thus the impugned order was arbitrary as well as in violation of the established principles of justice and equity. It would be seen that the impugned order is being challenged on merits. We have gone through the entire record and feel that there was ample evidence to support the impugned order. The present was neither a case of "no evidence" nor that of "inadequacy of evidence". It being so, the present appeal practically becomes confined to the quantum of departmental punishment involving the stoppage of promotion for five years. In this context, reference may be made to proviso (b)(ii) to section 4 of the North-West Frontier Province Service Tribunals Act, 1974, which lays down that no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the quantum of departmental punishment or penalty imposed on a civil servant as a result of departmental inquiry, except where the penalty imposed is dismissal from service, removal from service or compulsory retirement. The impugned order does not involve dismissal or removal from service or compulsory retirement. This being the position, the appeal before this Tribunal challenging the quantum of departmental punishment would not be competent.
6. The appeal, in our opinion, is also not competent from another point of view as well. In this connection, it may be stated that the impugned order dated 31-1-1975 was passed by the Member, Board of Revenue. The appellant was working as Assistant (Nazir) in the Board of Revenue and he could prefer an appeal against the said order to the Government under the provisions of Board of Revenue Delegation of Power Rules, 1958, read with the N.-W. F. P. Civil Service (Punishment and Appeal) Rules, 1943. He, however, did not prefer an appeal to the Government and instead submitted a Review petition to the Member, Boar of Revenue. We called upon the appellant to cite any Rules to shall that the Review petition was competent in the circumstances of the present case but he could not refer to any such Rules. It necessarily follows that he adopted a course/procedure which was not warranted by the Rules. Section 4 of the North-West Frontier Province Service Tribunals Act, 1974 entitles a civil servant aggrieved by any final order, made by a departmental authority, in respect of any of the terms and conditions of his service, to prefer an appeal to the Tribunal having jurisdiction in the matter. The final order in the instant case could be that of the Provincial Government on appeal by Rashid Ahmad and the order passed on review by the Member, Board of Revenue, on March 18, 1975, cannot be termed as "final order" within the meanings of section 4 of the North-West Frontier Province Service Tribunals Act, 1974. This being the position, none of the two orders, one passed by the Member, Board of Revenue on 31-1-1975, and the other passed by him on review on 18th March 1975, can be said to be a final one for the purpose of this appeal and cannot, therefore, be challenged before this Tribunal.
7. From what has been stated above, it is manifest that the present appeal before this Tribunal is not competent. The appeal is accordingly dismissed with no order as to costs.