| Decision |
WAJIHUDDIN AHMED, J.--The appellant was a Line Superintendent of WAPDA. He, seemingly, remained absent from duty as from 18-5-1981. He claims to have been sick and maintains that he was dismissed from service without according any hearing in his absence on 14-2-1982. He says that he reported for duty on 1-3-1982 but was not allowed to resume, coming to know two or three days thereafter that he had been dismissed from service. It is next claimed that he again fell ill on 6-3-1982 and remained so till 23-12-1984; on getting better submitting a departmental appeal on 26-12-1984. Such appeal not being responded to, the appellant approached the Service Tribunal through Appeal No. 105(R) of 1985, instituted on 24-4-1985. The Tribunal examined the three medical certificates submitted by the appellant covering the period 18-5-1981 to 1-3-1982, each citing limbago and typhoid as grounds of sickness. The Tribunal did not believe the medical certificates issued by the same medical officer of WAPDA and none bearing the date of issuance. The Service Appeal was dismissed in limine on 1-6-1985. The appellant preferred Civil Appeal No.422 of 1985 challenging the judgment of the Service Tribunal and that appeal, coming up on 16-12-1990, was also dismissed. In the penultimate paragraph of their Lordships' order dated 16-12-1990, while it was observed that an order on a departmental appeal, as to condonation of limitation or refusal thereof, would itself give rise to the jurisdiction of the Tribunal under section 4 of the Service Tribunal Act, 1973, the Court found no mechanism in such Act, ensuring that the departmental appellate Authority passes orders on an appeal. Hence, Shafiur Rahman, J., who spoke for the Court, left the appellant free to obtain a decision in his appeal and, if aggrieved, to pursue the consequential remedy. Such paragraph is as under:-- "5. If the departmental appellate authority while dealing with the appeal upon its own investigation passes any order with regard to the question of limitation concerning the appeal before it, the appellate order will yet become itself a final order in terms of section 4 of the Service Tribunal Act and independently be a subject-matter of appeal before the Tribunal. However, such an appeal will not lie on the condonation or refusal to condone the delay but with regard to the appellate order on merits, the relief to be granted or not to be granted. With the departmental authorities the condonation of delay is discretionary matter. In the circumstances, the exercise undertaken by the Service Tribunal was within its jurisdiction and the finding of fact recorded cannot be said to be suffering from any infirmity. The appellant can certainly avail of second round of Service Tribunal if the appellate authority passes an order on merits condoning the delay that has taken place in the filing of the appeal before the departmental authority. There is no mechanism provided in the Service Tribunals Act whereby the disposal of an appeal pending within a department authority can be ensured." The appellant thereafter reagitated the issue before the appellate departmental authority and was communicated an order dated 15-11-1995, whereby the case was declined to be responded. The appellant then, on 5-12-1995, preferred yet another service Appeal bearing No. 288(I) of 1995. Such appeal was dismissed on 17-12-1995 by the Tribunal, upon holding that condonation being discretionary with the department, 'interference could not be made. Civil Petition No. 305 of 1996 having been brought in this Court, leave was granted on 10-4-1996 to consider whether the refusal by the Departmental Authority to decide the petitioner's Departmental appeal did not make it incumbent on the Tribunal to examine the controversy both as to condonation and merits. Hearing the learned counsel, it seems to us that because the appellate authority has refrained from passing any order on the appellant's time-barred appeal (by declining to re-open the case), the position remains unaltered. There has emerged no order over-taking or otherwise determining the element of limitation, which sparing up upon the appellant not preferring his departmental appeal in time. In the result, neither on the score of condonation of delay in the departmental appeal nor on merits the appellant can assail the successive conclusion recorded in those proceedings. It may, however, be added here that this Court, in an appeal to it, under Article 212 of the Constitution, as read with Article 187 thereof, does have an option and a discretionary power to require that a pending Departmental remedy be disposed of by the Departmental Functionaries. In point is the approval of a consent arrangement to such effect, as reflected in Province of Punjab v. Dr. Shahida Shah; 1995 SCMR 948, and a recent unreported decision, recorded on 26-5-1998, in Sh. Nazir Ahmad v. The Punjab Service Tribunal, Lahore (Civil Appeal No. 30 of 1995). The applicable observation of the Full Bench in the last mentioned case, pertaining to an apparently time barred departmental appeal, is as follows:-- "The impugned majority views does not suffer from any legal infirmity warranting interference of this Court. However, Mr. Hassan Ahmad Khan, learned counsel for the appellant pointed Out that the appellant's above departmental appeal has not yet been decided by the department. We, therefore, direct that the department should decide the above appeal within two months of the receipt of this judgment, if it has not already been decided." It is quite another matter, though, that in this case a refrain to exercise such a discretion occurred clearly at the stage of the previous round of litigation. As to the manner in which the departmental appeals or representations are to be dealt with, what was said in Government of Pakistan v. Bashir Ahmad Khan, PLD 1985 SC 309 at pages 317 and 318 of the report, is instructive and may, with respect, be quoted here: "In paragraph 3 inter alia it is provided that in cases where the competent Authority has already rejected the first appeal/representation, a second or subsequent appeal/representation need not necessarily be replied to. However, if a civil servant does not receive a final reply to his original appeal or representation and a period of six months has elapsed since the appeal or representation was submitted, he may send a reminder through proper channel to the appellate authority and endorse a copy of the reminder direct to the Secretary or Minister concerned enclosing also a copy of his original representation. And paragraph 4 further provides that the Secretary/Head of Department concerned would ensure that he is kept informed every month by a specific date of such pending appeals/representations and it would be his personal responsibility to ensure equitable and quick disposal of such cases. For this purpose; the attached pro forma to the directive, it was further emphasised, must be put up to the Head of Department/Secretary every month alongwith reasons for delay in the disposal. These instructions are salutary and should be obeyed in letter and spirit. The civil servant, however, should not be misguided regarding period of limitation for filing an appeal before the Tribunal, by the advice therein; that when no final reply is received to his appeal or representation within six months he may send a reminder through proper channel. The date of sending of the reminder and the time spent in waiting for the response thereto would not be excluded as of right from the period of limitation for filing the appeal before the Tribunal. In other words, the mere submission of reminder will not be of such help to the civil servant. He will have himself to remain vigilant with regard to the disposal of the appeal or representation because it is the communication thereof from which the period of limitation would start running." Then, in such cases of a continued pendency of a departmental remedy, the avenue of the Constitutional jurisdiction under Article 199 remains also available, as was laid down by another Full Bench of this Court in S.H.M. Rizvi v. Maqsood Ahmad PLD 1981 SC 612, where Shafiur Rahman, J.; speaking for the Court, concluded, as reflected below:-- "13. The Civil Servants (Appeal) Rules, 1977 enforced on 1st January, 1977, read with section 22 of the Act exhaust the remedies available to a civil servant for redress of the grievance with the Department. It is either a right of appeal or a right to make a representation. In cases where the departmental authorities procrastinate or contumaciously refuse to pass a final order, as appears to have happened on the objection of the respondent (for the objection filed in 1976 remains to date undisposed of and the provisional list that issued in 1976 is yet to be finalised) the remedy for the aggrieved civil servant is to represent to the next higher authority and after waiting for a reasonable time to seek Constitutional remedy for a direction to the departmental authority to perform a duty enjoined upon it by law. The Service Tribunal being a statutory forum with restricted jurisdiction cannot in the absence of a final order of departmental authority adjudicate on all legitimate grievances of civil servants." Such dictum in S.H.M. Rizvi's case was noted, inter alia, in Maqsood Abbas Naqvi v. Province of Punjab 1991 PLC (C.S.) 141. Finally, the circumstance of an unattended departmental appeal could, perhaps, also be agitated before the Wafaqi Mohtasib, as finds mention in Zafar Iqbal v. WAPDA 1995 SCMR 16. Having said as much and disserted upon the various options open to an aggrieved civil servant, whose Departmental remedy remains unattended to, unresponded or undisposed of, we may, however, point out that with years of delay, which have intervened, the appellant in this case may himself have been a contributory to his present plight and the prospects of redress may, thus, have been rendered remote. In the circumstances, this appeal must fail and is dismissed, but the parties shall bear their own costs. A. A./Z-19/S Appeal dismissed. |