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Petitioner: JEHANZEBKHAN VS Respondent: MEMBER(WATER),WAPDA,LAHORE
1996 P L C (C
1996 P L C (C.S.) 1135
[Federal Service Tribunal]
Present: Abdul Razzaq A. Thahim, Chairman, Muhammad Ismail, Noor Muhammad Magsi and Roshan Ali Mangi, Members
JEHANZEB KHAN
Versus
MEMBER (WATER) WAPDA, LAHORE and 3 others
Appeal No. 505(R) of 1995, decided on 5th March, 1996
Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 4‑‑‑Pakistan Water and Power Development Authority Rules, 1978, Rr.2, 6 & 11‑‑‑Appeal‑‑‑Maintainability‑‑‑Consequent upon disciplinary proceedings against civil servant, major penalty was imposed upon him by Competent Authority‑‑‑Civil servant filed appeal against imposition of penalty before competent Appellate Authority‑‑‑Appellate Authority modified penalty, but civil servant not satisfied with said decision, filed second appeal before a functionary who was not competent to hear appeal‑‑‑Functionary, however, rejected the appeal, after about two years from its filing‑‑‑Civil servant, as against prescribed period of thirty days filed appeal before Service Tribunal after two years, which, in the absence of cogent reasons, being hopelessly time‑barred, was dismissed without going into the merits of the case.
Government of Pakistan through Secretary, Establishment Division v. Bashir Ahmed Khan PLD 1985 SC 309 ref.
Shah Abdur Rashid for Appellant. Sh. Riaz‑ul‑Haq for Respondents.
Date of hearing: 8th February, 1996.
JUDGMENT
ROSHAN ALI MANGI (MEMBER). ‑‑‑Consequent upon the disciplinary proceeding against the appellant in which, he was alleged to have been found guilty on the charge to have parked Government vehicle un-authorisedly, the competent Authority imposed upon him the following penalties vide office Order No. 55, dated 12th January, 1993:‑‑
(i) Cost of vehicle No. ADA‑6963 (P/UP) (Hi‑Lux) amounting to Rs.1,35,700 to be recovered from him.
(ii) Three stages lower in the existing time scale for three years.
2. The appellant submitted his appeal to the competent Authority on 26‑1‑1993 (i.e. General Manager), which was accepted by him and his penalty was modified by reducing the recovery from Rs.1,35,700 to Rs.1,02,382 and lowering the accused three steps in his time scale for a period of three years without commulative effect vide order, dated 27th April, 1993.
3. Being still unsatisfied, the appellant submitted yet another appeal to the Member (Water) on 7‑6‑1993. Subsequently according to the appellant his appeal was accepted and was called for personal hearing, in which the presence of the Chief Engineer as well as the General Manager, was also desired. He was heard on 3‑4‑1994 at 12‑00 hrs. The Member (Water) WAPDA, according to the appellant, desired to know‑how much weightage was given to the observation made in the enquiry report, and to pinpoint the individuals responsible for the loss to WAPDA. Besides this, the Member (Water) WAPDA, according to appellant, ordered that no recovery should be made, till the finalisation of the case.
4. However, according to appellant no action was taken on the directions of WAPDA Member (Water), since he had been relieved of the post of the Chairman by the Government. And appellant's appeal submitted to the Member, on 7‑6‑1993
was rejected on 8‑11‑1995, without assigning any reason, and the said order was communicated to him on 2‑12‑1995. Hence this appeal.
5. Advocate Mr. Shah Abdur Rashid appeared on behalf of the appellant, the respondents were represented by Sh. Riaz‑ul‑Haq. The preliminary objections have also been filed on behalf of the respondents.
6. An important objection has been raised vide comments i.e. that appeal is hopelessly barred by time, hence liable to be dismissed. Moreover, according to the respondents no second appeal was competent.
7. Before we examine this issue of time limitation raised by the respondents vide comments, we will have to resolve another issue again raised by the respondents, with which the issue of limitation is very closely linked i.e. whether or not, the penalty so modified by the General Manager (WAPDA) was in order under the law. In other words, whether the General Manager was competent to modify the impugned order, as according to the appellant he was not.
8. The contention of the appellant was that the Chief Engineer, VAPDA was not competent to serve him with charge‑sheet under sub‑para. (3) of Rule 2 of Pakistan WAPDA Employees (Ex) Rules, 1978. He can neither frame nor communicate the charge‑sheet in terms of rule 6(1) ibid. Under the circumstance, the enquiry so conducted and order so passed imposing penalty upon the appellant cannot be sustained. It has further been argued that General Manager was in fact not the appellate Authority as contemplated under rule 11. According to the appellant, the appeal so submitted to the General Manager should have been forwarded to the Member (Water) WAPDA for decision.
9. This has on the other hand been controverted by the respondents. According to them, the Chief Engineer Was competent Authority under the law, who after going through the gravity of the charge, awarded penalty to the appellant, in accordance with E&D Rules, 1978. And that appellant had rightly submitted his appeal to the General Manager, being the appellate Authority. It has been stressed with force that the General Manager and Project Director, T.D.P. was the next higher authority and hence appellate authority under the law, who legally and correctly decided the appellant's appeal. In this regard he has produced the documents on the file.
10. We have perused the relevant document i.e. the document in respect of delegation of administrative powers, which reveals that the Chief Engineer is not only the appointing authority of Junior Engineers and officers of equivalent status (and the appellant belonging to the category of officers) but also the authority competent to impose penalty under the Government Servants (Efficiency and Discipline) Rules, 1973. Under the circumstances, the penalty imposed by the Chief 'Engineer (Authority) and modified by the General Manager (appellate authority) was in order under the law. As such the appellant's argument that they were not competent either to impose the penalty or to modify it is not correct in the eye of law. Hence such argument is repelled. The appeal submitted by the appellant against the penalty so imposed upon him by the authority (Chief Engineer) itself was addressed to General Manager It follows from this that the appellant knew who was the appellate authority, i.e. why he addressed the appeal to General Manager not to the Member (Water) WAPDA, whom he now takes to be the appellate authority, may be to justify the submission of his next appeal, for which there is no provision in the law.
11. This second appeal was preferred to the Member (W) on 7‑6‑1993, which was rejected vide letter dated 8‑11‑1995 and communicated to the appellant on 2‑12‑1995 against which the appellant has filed the present appeal before the Tribunal. The question arises, is it an appellate order? Since, neither the Member (Water) is the appellate Authority nor the second appeal lies under the law.
12. In fact, as discussed above, and clearly brought out, that the Chef Engineer was the authority who imposed the penalty upon the appellant, and the General Manager was the appellate authority, who modified, such a penalty order i.e. the Order No. 330 dated 27‑4‑1993.
13. From the above it follows that the only competent/appellate order was one which was issued by the General Manager who was the appellate authority ‑i.e. issued on 27‑4‑1993 not the one issued on 8‑11‑1995 on behalf of the Member (Water) WAPDA, which has no legal force since Member (Water) WAPDA is not appellate authority.
14. Under the circumstances, the time limitation will be calculated from the date the appellate order was passed by the competent Authority i.e. the General Manager and from 27‑4‑1993, the appellant, therefore, should have approached the Tribunal, within prescribed period of thirty days as held by tie Hon'ble Supreme Court reported as Government of Pakistan through Secretary, Establishment Division v. Bashir Ahmed Khan (PLD 1985 SC 309), which he did not. As such his appeal is hit by time limitation and not maintainable under the law.
15. The appellant has submitted a condonation application but he has argued on the same plank therein as discussed above i.e. the Member (Water) WAPDA was the appellate authority not the General Manager, hence his rejection order should be considered for counting the time for the purpose of limitation which stand, we have already rejected above. Although the learned counsel for the appellant has cited a number of judgments nevertheless they are not relevant in the present case, because there is no infirmity in appellate order. The appellant has not given any cogent reason for such a belated delay in filing the appeal before the Tribunal against the competent appellate order.
16. So without going into the merit, of the case, we dismiss the appeal, being barred by time limitation with no order as to costs.
17. Parties he informed.
H.B.T./47/Sr.F Appeal dismissed.