KARAM ELAHBE CHAUBAN AND MUHAMMAD APZAL ZULLAH, JJ

EHSANUL HAQUE
Versus
SERVICE TRIBUNAL, ISLAMABAD, ETC.

CJPSLA No. 821 of 1974 decided on 18-7-1979.

(I)Serric Triknals Act (tXX of 1973)
S 4 proviso (a)—Remedy available with departmental authority not exhausted—Appeal not competent. (Para. 6)
(II)Service Tribunal Act (LXX of 1973)
—S. 6—Abatement of proceedings on establishment of Tribunal—Suit dismissed much earlier—Question of abatement and limitation with reference to S. 6 could not arise (Para. 6)

Muhammad Ismail QuresM ASC and SA. Abdul Karim AOR for Petitioner. Nemo for Respondent.

Date of bearing : 18-7- J 979.

ORDER

Karam Elahee Chauhan, J.—The petitioner was an Upper Division Clerk U.D.C.) in the Health Department of (be Government of Pakistan. He was charge-sheeted on 16-5-1968 for corruption as per details given in the said charge-sheet. After completing the usual formalities he was removed from service on 18-9-1969 by the Director. The petitioner filed an appeal which was accepted by the Director-General of Health on 31-8-1970 and the petitioner was re-instead to bis post with a retrospective effect. ,
2. A copy of the order passed in the aforesaid appeal has not been filed and the learned counsel in this context was not in a position to deny that the aforesaid re-instatement of his client was due to some technical defects in the earlier departmental enquiry or proceedings/ The petitioner, therefore, was again suspended on 1-9-1970 and after complying with the usual formalities of charge sheet/enquiry and the relevant show-cause notice he was removed from service on 31-12-1970. Though earlier the petitioner had filed an appeal against order of removal dated 18-9-1969 but this time be filed no departmental appeal. However, it is conceded that the remedy of such appeal was in fact available to the petitioner but was not utilized by him. It appears that this time the peti¬tioner filed a civil suit on 1-2-1971 but without any success as the same was dismissed by the learned Administrative Civil Judge, Rawalpindi, on 31-7-1973.
• 3. At that juncture the petitioner did not go in appeal to the learned Dist¬rict Judge because according to him by that time the Service Tribunals Ordinan¬ce XV ‘of 1973 had come into force with effect from 15-8-1973 which was later followed by the Service Tribunals Act (LXX of 1973) (hereinafter called the Act) which came into force on 20-9-1973. He rather chose to file a service appeal being Service Appeal No. 538-R/74 before the Service Tribunal, Islamabad, on 8-8-1974. The Service-Tribunal dismissed that appeal as time barred by its order dated 20-8-1974. According to the Tribunal under’ section 6 of the Act, the appeal had to be filed within 90 days from the establishment of the appro¬priate Tribunal but as the Tribunal was established on 22-2-1974 and the appeal was filed on 8-8-1974 it was clearly barred by time. The Tribunal further observed that the learned Administrative Civil Judge had dismissed the suit of the petitioner sometime in October, 1973, and as the Service Tribunals Act had come into force on 29-9-1973 therefore according to the Tribunal, the suit had abated even during its pendency and the petitioner was not justified to file the appeal to late.
4. The petitioner has come op in a petition for special leave to appeal against the same to this Gburt under Article 185 (3) read with Artitle 212 of the Constitution of 1973.
5. Before proceeding further the learned counsel for the petitioner has drawn our attention to sections 4 and 6 of the Act (as amended). These sections read as follows:—
“Section 4. Appeals to Tribunal.*~(\) Any civil servant aggrieved by any final order, whether original or appellate, ma^e uy a departmental authority JB ifpect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him (or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer ao appeal to the Tribunal.
Provided that :—
(a) where an appeal, review or representation to a departmental authority is provided under the Civil Servants Ordinance, 1973, or any rules against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred ;
(6) no appeal shall lie to a Tribunal against an order or decision of a department authority determining the fitness or otherwise of a person to be appointed to or bold a particular post or to be promoted to a higher grade; and
(c) no appeal shall lie to a’ Tribunal against an order or decision of a departmental authority made at any time before t be lit July, 1969.
(2) Where the appeal it against an order or decision of a departmental authority imposing a departmental punishment or penalty on a civil servant, the appeal shall be preferred —
(a) in the case of a penalty of dismissal from service, removal from service, compulsory retirement or reduction to a lower post or time-scale or to a lower stage in a time-scale, to a Tribunal referred to in subsection (3) of section 3 ; and
(ft) in any other case, to a Tribunal referred to in subsection (7) of that section.
Explanation,—In this section, “departmental authority” o.eans authority,! other than a Tribunal, which is competent to make an order in respect on any of the terms and conditions of civil servents.
Section 6. Abatement of tuits and other proceedings-—All suiu, appealsi .or applications regarding any matter within the jurisdictions of a Tribunal! pending in any Court immediately before the commencement of this Act! shall abate forthwith. I
Provided that any patty to such a suit, appeal or application may within* ninty 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.” [
6. Learned counsel hat argued that the suit of the plaintiff/petitioner was dismissed on 31-7-1973 whereas the Act bad come into force on 29-9-1973. In this context, be submitted, that findings, observation or assumption of the Tribunal that the petitioner’s suit bad been dismissed in October, 1973, or that his suit bad abated on 29-9-1973, was factually incorrect because as mentioned above the suit having already been dismissed much earlier the question of its dismissal or abatement on any subsequent dates as aforesaid did not arise, particularly in view of a certified copy of the judgment of the learned Adminis¬trative Civil Judge, which was placed on record by toe learned counsel and which supports the date provided by him. In view of the matter we are in agreement with the learned counsel that section t of the Act was not appli¬cable to the fact and the circumstances of the present case and the dismissal of the service appeal of the petitioner with reference to the aforesaid section is not justified.
This however is not the end of the matter. Though after giving the above Hading the case could have been remanded to the Seamed Tribunal for fresh disposal in accordance with the Jaw relevant on tbe subject but we find that due to another factual aspect which we are going to mention presently the remand of the case will be an exercise in sheer futility and would not appear a just and fit course to be followed. The fact and the aspect of the case which we want to point out is that under “proviso (a)” to section 4 of the &ct reproduced above no appeal to a Service Tribunal is competent if the law relevant provides a departmental appeal and the civil servant concerned has iot first exhausted the remedy of that appeal. In the instant case it was considered by the learned counsel that the order dated 31-12-1970 which was the subject matter of the present controversy was appealable to the concerned appellate authority just as his earlier order of removal dated 18-9-1969 was and which was on factual plane successfully appealed against by him before the said authority. It was further conceded that the petitioner had not filed any such appeal. In these circumstances even though the service appeal of the petitioner could not have been dismissed by the Tribunal under section 6 nevertheless it could be dismissed as barred by the “proviso” aforesaid of section 4 of the Act. The result io the end thus remain the same namely that the appeal filed by the petitioner was not competent before the Tribunal though not on the ground of limitation under section 6, but on account of his not having first availed of, the remedy of a competent departmental appeal. A similar view was taken by this Court in Alt Raza Shah v. Government of Sind(PLD 1979 S C 856) where an order of dismissal of a service appeal by the Tribunal on account of its incompstency for not having first availed of a remedy of depart¬mental appeal was maintained. The law laid down in that case it folly applicable to the fact and the circumstances of the present case.
7. The result is that this is not a fit case for grant of leave to appeal. The petition in the circumstances has no merit and is dismissed.

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