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Petitioner: MUHAMMAD BASHIR VS Respondent: WATER AND POWER DEVELOPMENT AUTHORITY
1990 P L C (C
1990 P L C (C.S.) 398
[Federal Service Tribunal]
Present: Syed Ali Madad Shah, Chairman, Khawaja Abdul Jalil and Ch. Hasan Nawaz, Members
MUHAMMAD BASHIR
versus
WATER AND POWER DEVELOPMENT AUTHORITY
through its Chairman and another
Appeals Nos. 102(L) of 1986 and No. 154(L) of 1984, decided on 23rd November, 1989.
(a) Service Tribunals Act (LXX of 1973)‑‑
‑‑‑S. 4(1)‑‑‑West Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978, R. 11‑‑Dismissal‑‑‑Misconduct and insubordination‑‑‑Departmental appeal‑‑‑Appellant was dismissed after charge- sheet and inquiry‑‑‑Appellant served a grievance notice on Authority and then filed a grievance petition with Labour Court who accepted the petition and reinstated appellant without granting consequential benefits but appellant went to Labour Appellate Tribunal for grant of such consequential benefits‑‑‑Appellant's appeal before Labour Appellate Tribunal was subsequently withdrawn because Authority had filed a Constitutional petition before the High Court which was ultimately accepted holding that Labour Court had no jurisdiction to decide matter as appellant was an employee of WAPDA‑‑‑Appellant filed his first appeal with Service Tribunal without filing a departmental appeal‑‑‑During pendency of said appeal appellant filed a departmental appeal on the same cause of action in order to obviate probable objection to the maintainability of appeal on the ground that no departmental appeal had been filed‑‑‑Appellant then filed a second appeal with Service Tribunal and both appeals were heard together‑‑ First appeal of appellant was dismissed by Service Tribunal on the ground that it had been filed without preferring departmental appeal‑‑‑Contention of appellant that his grievance notice before filing first appeal would amount to departmental appeal was repelled‑‑‑Held, first appeal of appellant having been filed without filing departmental appeal, same was hit by section 4(1) of Service Tribunals Act. 1973 and was therefore liable to dismissal and his grievance notice did not amount to a departmental appeal.
(b) Service Tribunals Act (LXX of 1973)‑‑
‑‑‑S. 4‑‑‑Limitation Act (IX of 1908), S. 5‑‑‑West Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978, R.11‑‑‑Appeal‑‑‑Limitation‑‑‑Appellant who was dismissed from service on charges of misconduct and insubordination, was quite vigilant in pursuing his remedy but he was put behind schedule due to uncertainty of forum he was to seek redress from and what requirement of law he had to comply with before seeking orders‑‑‑Delay in filing appeal, held, was condonable.
(c) West Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978‑‑
‑‑‑Rr. 5 & 11‑‑‑Dismissal‑‑‑Misconduct and insubordination‑‑‑Appellant working as senior clerk (Summary Section) WAPDA allegedly instigated staff to discontinue billing on monthly basis and to start billing on two monthly basis in contravention of billing programme‑‑‑Appellant organised an unlawful assembly of staff and led them to office of City Police in order to pressurise Police Authorities to get a Lower Division Clerk of his office released who was arrested in a criminal case‑‑‑Record showed that no opportunity of personal hearing was given to appellant which was a fundamental requirement of law and appellant was punished on basis of a document which was not brought to his notice‑‑‑Record of Inquiry Officer did not indicate that appellant was ever given an opportunity of cross‑examination of the only witness relied upon by Inquiry Officer in support of his finding against appellant although there was nothing in statement of said witness to lead Inquiry Officer to conclusion that charges had been established‑‑ Inquiry Officer's proceedings on said charges were unsound and allegations on merits were not such as should have warranted appellant's dismissal from service‑‑‑Held, inquiry proceedings against appellant suffered from legal lacuna and caused miscarriage of justice and order of his dismissal was liable to be set aside in circumstances.
(d) Service Tribunals Act (LXX of 1973)‑‑
‑‑‑S. 4‑‑‑Limitation Act (IX of 1908), S. 5‑‑‑Appeal‑‑‑Limitation‑‑‑Condonation of delay ‑‑‑Condonation of delay in appropriate case, is within discretion of Tribunal‑‑‑Delay howsoever great might be in filing appeal, can be condoned in the interest of justice as all laws were made to promote ends of justice.
(e) Service Tribunals Act (LXX of 1973)‑‑
‑‑‑S. 4‑‑‑Review‑‑‑Powers of review are not available to Tribunal.
1986 S C M R 965 re1.
(f) Service Tribunals Act (LXX of 1973)‑‑
‑‑‑S. 4‑‑‑Appeal‑‑‑Two appeals against one and same order not maintainable before same forum‑‑‑Course of preferring two appeals was permissible in peculiar circumstances of a case when second appeal would be deemed to be in continuation of earlier appeal.
Mian Mahmood Hussain for Appellant.
Kamal Mufti and Muhammad Yaqub, D.R. for Respondents.
Date of hearing: 27th April, 1989.
JUDGMENT
CH. HASAN NAWAZ (MEMBER).‑‑This judgment is concerned with the disposal of two appeals under section 4 of the Service Tribunals Act, 1973, giving rise to identical questions of law and facts, filed by the appellant who is serving as Upper Division Clerk with the respondents, against the order of his dismissal from service passed by respondent‑2 on 17‑3‑1982 (Annexure F) in Appeal No. 102(L)/1986, dated 16‑4‑1986 where the judgment is being recorded.
2. These are facts in the background: While he was serving as Upper Division Clerk in Revenue Office (WAPDA) Nazimabad, Faisalabad, the appellant was served with a charge‑sheet (Annexure‑A/1) on 28‑4‑1981, accompanied by a statement of allegations (Annexure‑A) which is reproduced below because of its importance and bearing on the decision of these appeals:
"Mr. Muhammad Bashir son of Barkat Ali, while posted as Senior Clerk in the (Summary Section) Office of R.O. (P) 2nd, Faisalabad during 3 & 4/1981 is alleged guilty of misconduct and insubordination for the following irregularities:‑‑
(1) While working as Senior Clerk (Summary Section) in the office of R.O. (P) 2nd Faisalabad he instigated the staff to discontinue the billing on monthly basis and to start the billing on two monthly basis for the month of 3/1981 in contravention of the billing programme chalked out by the XEN./R.O.
(2) On 11‑4‑1981 be willfully absented himself from duty as not found by the Commercial Manager during his inspection of R.O. (P) 2nd Faisalabad.
(3) He organised an unlawful assembly of the staff of R.O. (P) 2nd Office j and led them to the office of D.S.P., City Faisalabad on 8‑4‑1981 in order to pressurise the Police Authority for registering a self made case against the Officers and to get Mr. Abdul Saeed, L.D.C. released who was arrested in a criminal case under F.I.R. No. 169/81, dated 4‑4‑1981 P.S. Gulberg, Faisalabad."
3. The appellant was transferred to Revenue Office, Mianwali by order dated 13‑5‑1981 (Annexure‑C), after he had submitted an explanation to the charge‑sheet on 6‑6‑1981 (Annexure‑B). An inquiry was held and he was served with second show‑cause notice dated 22‑2‑1982 (Annexure‑D) on the basis of Inquiry Officer's report. He pleaded to this notice with an explanation in writing on 4‑03‑1982 (Annexure‑E). These disciplinary proceedings eventually culminated in the order of his dismissal from service passed by Superintending Engineer, WAPDA (Electricity) Faisalabad Circle on 17‑3‑1982 (Annexure‑F).
4. After having thus been dismissed, the appellant served the respondents with grievance notice dated 15‑4‑1982 (Annexure‑G) under section 25‑A of the Industrial Relations Ordinance, 1969, which was followed by the institution of a grievance petition (Annexure‑H) under the same section on 20‑6‑1982 before Punjab Labour Court‑5, Faisalabad. It was accepted by the Court by judgment dated 18‑10‑1982, in pursuance whereof he was reinstated in service by the respondents. The Labour Court set aside the order of his dismissal and ordered his reinstatement without granting the conseqential benefits. He went in appeal to the Labour Appellate Tribunal, Lahore for the grant of these benefits, which was subsequently withdrawn because of the respondents having gone to the High Court with a writ petition, which was ultimately accepted on 21‑4‑1984 with the ruling that the Labour Court did not have the jurisdiction to decide the matter. After having learnt about the decision of the High Court on 14‑5‑1984, he filed his first appeal (154(L)/84) on 16‑5‑1984, without filing a departmental appeal under Rule 11(2)(d) of the Pakistan WAPDA Employees (E&D) Rules, 1978 to make it maintainable under the proviso to section 4(1) of the Service Tribunals Act, 1973.
5. The second appeal on the same cause of action (102(L)/86) was filed on 16‑4‑1986, in evident awareness and accession of the fact that first appeal was not competent because of having been filed without fulfilment of the jurisdictional requirements laid down under the aforementioned proviso to section 4 of the Act. This aspect of the matter was brought to the notice of the appellant's learned counsel and although he showed reluctance to withdraw the first appeal, he did not deny the fact that the second appeal had been filed after filing a departmental appeal dated 21‑12‑1985 (Annexure‑J) "to avoid any technicality of the law out of precaution."
6. As for merits, even a cursory application to the material on the record would show that the order of dismissal is not legally sustainable. The record makes it impossible to resist the conclusion that there has been mis‑carriage of justice in this case. Much has been left to be desired in the disciplinary proceedings and I have no doubt in my mind that the impugned order should be set aside in the interests of justice.
7. I have been influenced to this finding on account of the following reasons:
(a) As it is apparent from second show‑cause notice, (Annexure‑D) no opportunity for personal hearing was granted to the appellant in accordance with the principle laid down by the Supreme Court in Mir Mohammad's case, P L D 1981 S C 176, which was subsequently acknowledged and embodied by the Authority in Rule 5(v)a, and which speaks of the second show‑cause notice and provides that the competent authority shall take into consideration the cause shown by the accused, hear him in person and determine whether the charge has been proved. I have no doubt in my mind that the grant of personal hearing was necessary in the interests of justice before deciding the matter. The Authority might have been led to a different conclusion or at least a lenient view in consequence of personal hearing. This fundamental requirement of law in accordance with the Supreme Court's ruling, has not been fulfilled and the competent authority's decision without grant of personal hearing suffers from an inherent defect in this case, for it is not based on what ought to have been taken into consideration.
(b) Personal hearing given to the appellant on 17‑2‑1982, can by no means serve as a substitution for second such opportunity necessary under the law, after the appellant had known about the findings of the Inquiry Officer.
(c) I see from the impugned order dated 17‑3‑1982, that S.M.L.A. Faisalabad's letter No. 281/1/ML, dated 16‑3‑1981, declaring the accused (appellant) as a `trouble‑monger' was also taken into consideration alongwith other material while dismissing him from service. This has also brought about a material irregularity in the proceedings, for the competent authority ought not to have been influenced by a circumstance which had not been mentioned either in the charge‑sheet or in the statement of allegations. I feel that the matter does not require any emphasis and it will be enough to say that there is nothing on the record to deny that S.M.LA's letter might have played a vital role in bringing the competent authority to the conclusion that the appellant was not fit to be retained in service. It is a case where the appellant has been punished, inter alia, on the basis of a document which was never brought to his notice and against which he was not given an opportunity to plead.
(d) It can be noticed from the proceedings of the Inquiry Officer that apart from the statement of the appellant himself, he has relied upon the statement of one witness in support of his findings. Details are unnecessary and it will be sufficient to point out that the record of his proceedings does not show that the appellant was given an opportunity to cross‑examine that witness, although he is shown to have been present during the proceedings. I feel that this circumstance has also resulted in miscarriage of justice.
(e) Even otherwise, apart from the aforementioned circumstances, there seems to be nothing in the statement of this witness to lead the Inquiry Officer to the conclusion that charges‑1 and 3 have been established. The finding about second charge regarding absence without leave on 11‑4‑1981 is that it has not been proved. As already pointed out, only the solitary statement of Mr. Hassan Imam Bukhari, Revenue Officer has been relied upon in coming to the conclusion that he instigated the staff to discontinue the billing on monthly basis and start billing on two monthly basis, irrespective of the fact that he was only a Senior Clerk in the Summary Section and had nothing to do with the billing Section. I realise that instigation could still be possible, but then there should have been some evidence in support of this fact. The Inquiry Officer's finding on this charge seems to be rather unsound.
(f) Even on the third charge, the Inquiry Officer had only the statement of Mr. Hassan Imam Bukhari to rely upon in support of the finding that he managed an unlawful assembly in the office compound of the Revenue Office. It may be mentioned that this statement, besides being without corroboration, seems to be casual and hollow to the extent that it proves nothing at all, more so when seen in the context of the circumstance that the appellant was not given an opportunity to cross‑examine.
(g) Furthermore, even in accordance with the Inquiry Officer's findings, the third charge has not been established as a whole and it has been proved only to the extent that an unlawful assembly was brought about in the office compound. This was certainly not the charge, for there could be no unlawful assembly without an unlawful object, which could be available only from the fact that such assembly was taken to the DSP's Office with the purpose of obtaining the release of Mr. Abdul Saeed, L.D.C.
(h) Apart from these circumstances, I feel that the third charge does not make a happy reading and it is difficult to spell out an allegation of making an unlawful assembly, to say nothing of the fact that there is no evidence in support. The charge seems to be ex‑facie infirm.
(i) Even if the Inquiry Officer's findings be taken as correct, the punishment awarded against the appellant does not appear to be proportionate to the amount of guilt, which is to say the least, the allegations taken on merit were not such as should have warranted his dismissal from service and a lenient view of the matter could certainly be taken.
8. The conclusion which necessarily follows from the aforementioned considerations is that the appellant is entitled at least to a partial relief. The only thing which stands in the way is the question of limitation raised by the respondents in their written statement with which I propose to deal in the succeeding paragraphs.
9. As the record bears out, the order of dismissal was passed on 17‑3‑1982, whereas the first appeal was filed on 16‑5‑1984 which is obviously time‑barred. If this be factually true about the first appeal, the second appeal filed on 16‑4‑1986 suffers from the same defect rather with larger gravity. Therefore, under the circumstances, what requires to be decided is whether the appellant has been able to make out a good case for condonation of delay in his application under section 7 of the Service Tribunals Act, 1973, read with Rule 8 of Service Tribunal (Procedure) Rules, 1974 and sections 5 and 14 of the Limitation Act, 1908.
10. As already mentioned before in the statement of facts, after the passage of impugned order on 17‑3‑1982, the appellant served the respondents with grievance notice dated 15‑4‑1982 which was followed by a grievance petition on 20‑6‑1982, eventually accepted on 18‑10‑1982. The WAPDA's writ petition to challenge the validity of Labour Court's order was finally accepted by the High Court on 21‑4‑1984 on the ground that the Labour Court had no jurisdiction in the matter. The first appeal was filed on 16‑5‑1984 after the appellant became aware of the High Court's decision on 14‑5‑1984.
11. Delay in filing the appeal has been explained in the application for condonation of delay with the pleadings that the law on the point was not clear in accordance with the judgments of the superior Courts and that certain categories of WAPDA employees like the petitioner were treated as workmen at the relevant time and not as civil servants; which led the appellant to a genuine belief that his remedy lay before the Labour Court and not before the Service Tribunal. It was further pleaded that in a number of cases, it was held by the Tribunal that the grievance notice served under section 25‑A of the Industrial Relations Ordinance, 1969 fulfilled the requirements of a departmental appeal. This was in an attempt to explain why the first appeal dated 16‑5‑1984 was instituted with some delay and without first exhausting the departmental remedy provided under Rule 11 of the Rules.
12. We also see in the pleadings of the appellant in the application for condonation of delay that this view of the Tribunal underwent a change in consequence of Full Bench ruling which became known to the appellant through his counsel on 21‑12‑1985, after which he filed the departmental appeal on the same day. The second appeal was then filed on 16‑4‑1986 after the expiry of the statutory period of 90 days under proviso to section 4(1) of the Act. Relying upon these facts, it was contended by the appellant's learned counsel that even the second appeal is within time if the period spent by him on prosecution of the matter before the Labour Court and the Service Tribunal is excluded under section 14 of the Limitation Act while computing the period of limitation. He emphasised that he had been suffering from a genuine and bona fide belief that his remedy lay before the Labour Court and that the grievance notice served the purpose of a departmental appeal under Rule 11 of the Rules.
13. The question whether the grievance notice amounted to a departmental appeal under rule 11 of the Rules so as to fulfil the jurisdictional requirements, was examined by a full Bench of the Tribunal in Mohammad Latif Bhatti's case decided on 10‑11‑1985. (1986 P L C (C.S.) 111. It came to the conclusion that the grievance notice did not serve the purpose of a departmental appeal and that both had different characteristics. The Tribunal's decision was subsequently endorsed on appeal by the Supreme Court in 1987 S C M R 1936 with the following observations:
"It is clear to us that it was not a case of mistake of fact, that is quoting a wrong law, addressing an incompetent officer or mentioning an incorrect fact but that a mistaken view of the law was at the back of it all. The appellants considered themselves to be governed by Labour Laws in the matter of their employment and removal from service. This accounted for the grievance notice under section 25‑A of the Industrial Relations Ordinance and their point of view prevailed before the Labour Court as well. Finally, they were told by the High Court that law was inapplicable and their remedy lay before the Service Tribunal. It was then an occasion for them to have referred to the law applicable and to have satisfied its jurisdictional requirements for approaching the, Service Tribunal. Having failed to do that they cannot as a matter of legal right claim that the Service Tribunal was bound in law to treat their grievance notice as substantial compliance with the law, requiring a departmental appeal before approaching the Service Tribunal. If in individual cases, the Service Tribunal has been, after examining the facts, condoning such a similar lapses, condonation cannot be claimed as a general rule in all cases where the requirement of first proviso of section 4(1) Service Tribunals Act is not satisfied. It was within the discretion of the Service Tribunal and we find that the Tribunal has in fact attended to all aspects of the case involving facts as well as the law before exercising the discretion against the appellants. We too find no reason why the appellants failed to file a departmental appeal as was required under the law."
14. One aspect of the matter is that after the High Court's decision on 21‑4‑1984, regarding lack of jurisdiction in the Labour Court, the appellant should have promptly filed a departmental appeal before coming to the Tribunal to fulfil the jurisdictional requirements of law laid down in section 4(1) of the Act. He however filed the first appeal without exhausting the departmental remedy and I have no doubt in my mind that it is liable to dismissal as being incompetent under proviso to section 4(1) of the Act. But this still leaves us with the question whether under the circumstances of this case, delay in filing the second appeal should be condoned. The appellant's case, as already pointed out before, is that he had been under a bona fide impression that the grievance notice was as good as departmental appeal under Rule 11 of the Rules and that his first appeal was competent. I am inclined to say that his pleadings on this point and the arguments of his learned counsel are not wholly without substance. They do carry some weight because the law on the point was rather not clear, and it was for the first time on 10‑11‑1985 in Muhammad Latif Bhatti's case that the Tribunal came to the conclusion that the grievance notice did not serve the purpose of a departmental appeal. Different judgments delivered on different occasions could lead the appellant to a bona fide belief, not only that his remedy lay before the Labour Court, but also that the service appeal before the Service Tribunal could be filed without exhausting the departmental remedy.
15. Reference may be made with some advantage to the observations made by the Supreme Court in Muhammad Latif Bhatti's case to the following effect; "If in individual cases the Service Tribunal has been, after examining the facts, condoning such or similar lapses, condonation cannot be claimed as a general rule in all cases where the requirement of first proviso of section 4(1) Service Tribunal Act is not satisfied. It was within the discretion of the Service Tribunal and we find that the Tribunal has in fact attended to all aspects of the case involving facts as well as the law before exercising the discretion against the appellants."
16. It is quite dear that condonation of delay in appropriate cases is within the discretion of the Tribunal and after taking into consideration the circumstances of the case, I am of the view that delay, howsoever great it may be in filing the second appeal, should be condoned in the interests of justice. The appeal being admittedly beyond limitation, it may be emphasised that the delay is being condoned and not legalised. On merits it has been found that the disciplinary proceedings betray a miscarriage of justice and I feel that it is an appropriate case for pressing the principle of condonation into service, especially in view of the consideration that all laws are made to promote the ends of justice. Put in other words, there is no law to prevent a Court or Tribunal from just decisions of the matters before them, more so in a case such as the present one where certain basic defects and irregularities have vitiated the disciplinary proceedings and rendered the consequential order of dismissal a nullity. The delay in filing the second appeal is therefore condoned.
17. For these reasons, Appeal No. 154(L)/1984, dated 16‑5‑1984 is dismissed. The subsequent Appeal No. 102(L)/1986, dated 16‑4‑1986 is accepted and the impugned order of dismissal is set aside with the observation that the department will be within their authority to proceed against the appellant, from the stage where the mistake in the disciplinary proceedings can be rectified anti then pass any order in accordance with the rules. There will be no order as to costs.
18. Parties to be informed.
KH. ABDUL JALIL l EMBER).‑‑Appellant, Muhammad Bashir, an Upper Division Clerk of WAPDA was dismissed from service under rule 4 of…
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