Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Miss AKHTAR ROSELINE VS Respondent: CHIEF ENGINEER, TELECOMMUNICATIONS, WAPDA, LAHORE
1989 P L C (C
1989 P L C (C.S.) 380
[Federal Service Tribunal]
Before Kh. Abdul Jalil and Ch. Hasan Nawaz, Members
Miss AKHTAR ROSELINE
versus
CHIEF ENGINEER, TELECOMMUNICATIONS, WAPDA, LAHORE and others
Appeal No. 76(L) of 1983, decided on 29th January, 1989.
(a) West Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978‑‑
‑‑‑Rr. 4 & 5‑‑Service Tribunals Act (LXX of 1973). S. 4(1)‑‑Dismissal from service for misconduct Appeal before Service Tribunal‑‑Prerequisites, non-fulfilment‑‑Effect‑‑Preference of departmental appeal is a prerequisite for competency of appeal before Service Tribunal, which has jurisdiction to entertain and decide such appeal only, if jurisdictional requirement has been fulfilled‑ WAPDA Efficiency and Discipline Rules, 1978, do provide for a departmental appeal against the order of dismissal‑‑Failure to file departmental appeal within prescribed period of sixty days would bar an appeal before Service Tribunal.
Muhammad Latif Bhatti v. Chairman, A.E.B., WAPDA, Gujranwala 1986 P L C (C.S.) 111 and 1987 S C M R 1930 ref.
(b) West Pakistan Water and Power Development Authority Act (XXXI of 1958)
‑‑‑S. 17(1‑B)‑‑Service Tribunals Act (LXX of 1973), S. 4‑‑Limitation Act (1X of 19(18), S. 5‑‑Appeal against dismissal filed beyond limitation‑‑Condonation of delay‑‑Justification for‑‑WAPDA employees declared to be civil servants under provisions of S.17(1‑b) of Act XXXI of 1958‑‑Appellant could have resort to Service Tribunal for redress of his grievance‑‑Appellant had no justification for pursuing grievance petition before Labour Court‑‑Appellant was bound to explain each day's delay‑‑Appellant's failure to explain delay would not entitle him to favourable exercise of jurisdiction with regard to condonation of delay, which was thus declined.
(c) West Pakistan Water and Power Development Authority Employees (Efficiency and Discipline) Rules, 1978‑‑
‑‑‑Rr. 4 & 15‑‑Charge‑sheet, serving of‑‑Record showed that appellant was examined by the Enquiry Officer and had deliberately avoided to face the issue involved in such enquiry‑‑Appellant had also admitted in her statement that she had received charge‑sheet on specific date and that she had submitted her explanation‑‑In presence of such statement, pica of ignorance of nature of charge could not be conceived‑‑Appellant would be deemed to have been properly served with the proper charge‑sheet.
M. Zaman Qureshi for Appellant.
Sh. Najamul Hasan for Respondents.
Date of hearing: 20th December, 1988.
JUDGMENT
CH. HASAN NAWAZ (MEMBER).‑‑The appellant was employed as Telephone Operator on 17‑1‑1963 in the Telephone Exchange under WAPDA, Lahore (respondent No. 2).
2. On 26‑10‑1980, she was served with charge‑sheet dated 25‑10‑1980 (Annex. DZ), wherein it was alleged that she fraudulently got her employment with respondent No. 2 by impersonation on the strength of Matriculation Certificate No. 231 issued by the Board of Intermediate and Secondary Education in favour of another person who took the test under Roll No. 21115 in the name of Miss Akhtar Roseline, daughter of Emanuel. The charge sheet was accompanied by a statement of allegations.
2. She denied this allegation in her explanation dated 7‑11‑1980 (Annex. EZ) received in the respondents' office on 8‑11‑1980. It was pleaded that the certificate was genuine and that she in fact is the person in whore favour it has been issued.
3. An enquiry into the matter was ordered and she was called upon by means of letter dated 22‑11‑1980 to appear before the Inquiry Officer appointed by the Authority. In response, instead of appearing before the Inquiry Officer as required, she appears from the record to have delivered letter dated 29‑11‑1980 to him wherein it was stated that it will not be possible for her "to participate in the enquiry on 29‑11‑1980" because the details of enquiry were not known to her.
4. Eventually, after completion of the enquiry on 8‑7‑1981 she was dismissed from service w.e.f. 5‑3‑1980 under rule 4 of the WAPDA Employees (E & D) Rules, 1978 (Annex. A). On 19‑8‑1981, she sent a grievance notice to the respondent under section 25‑A of the 1.R.0., 1969, which was delivered on 29‑R‑1981 (Annex. JZ). However, a few days earlier on 18‑8‑1981, the earlier order of dismissal was substituted by another order (Annex. B) which said that she was dismissed from service with immediate effect.
5: On 21‑9‑1981, she filed a petition under section 25‑A of the Ordinance before the Punjab Labour Court No. 2, Lahore which was returned by the learned Presiding Officer on 8‑2‑1983 for want of jurisdiction (Annex. KZ.)
6. This gave rise to the present appeal under section 4 of the Service Tribunals Act, 1973 instituted on 10‑3‑1983 with the prayer that order of her dismissal from service dated 8‑7‑1981 substituted by order dated 18‑8‑1981 may be set aside as being illegal and she may be reinstated in service with full back benefits. It was further prayed that the respondents may be directed to pay her wages for the period from 5‑3‑1980 to 18‑8‑1981.
7. To the facts already enumerated, it may be added that on 7‑4‑1986 she addressed a departmental appeal against the order of dismissal to the General Manager (T & G), WAPDA, Lahore (Annex. M‑II), which was forwarded in original to the General Manager (Coordination), WAPDA on 7‑4‑1986 (Annex. N‑II) for further necessary action in the matter. It does not appear from the record to have so far been decided.
8. The main grounds for reliance in support of the appeal are that disciplinary proceedings against her were the result of personal enmity and ill‑will of Malik Sajjad Hussain, Dy. Director (Telecommunication WAPDA) towards her; that he contrived the passage of the impugned order of dismissal; that she was neither provided with a copy of the enquiry report nor served with a final show‑cause notice; that the enquiry proceedings were ex parte and she was not given proper opportunity of defending herself and that the impugned order was ultimately passed by the Authority without giving her an opportunity of personal hearing. It was pleaded that no enquiry was held in accordance with law and that the order of her dismissal was passed, in violation of the provisions of Standing Order No. 15(4) read with Order No. 12(5}, of the Standing Orders Ordinance which is applicable to the WAPDA employee.
9. These allegations were denied by `'the respondents On facts, it was pleaded that in consequence of a preliminary enquiry, it was found that the appellant managed to get her employment with the respondent on the basis of bogus Matriculation certificate, which in fact belonged to some other lady. The fact that the appellant impersonated and passed herself as Miss Akhtar Roseline, was established as a result of lawfully conducted enquiry during which she was given ample opportunity to defend herself. Merits apart, it was pleaded that the appeal was barred by limitation. In addition, although it had not been specifically pleaded in the written statement, it was contended at the Bar by the respondent's learned counsel that no departmental appeal was filed against the impugned order of dismissal dated 18‑8‑1981 and that the present appeal was, therefore, incompetent under proviso to section 4(1) of the Service Tribunals Act, 1973. He argued that rule 11(1) of the WAPDA (E & D) Rules provides for an appeal to the competent Authority against the imposition of penalty and that she should have preferred such an appeal under clause (d) of sub‑rule (2) of this rule within two months of the date of the impugned order. Since this statutory formality had not been observed, the appeal was incompetent, as being offensive against the provisions of section 4(1) of the Act.
10. While conceding that the fundamental jurisdictional requirement should have been fulfilled before instituting the present appeal, it was submitted by the appellant's learned counsel that a departmental appeal (Annex. M‑II) had in fact been preferred, though rather late on 7‑4‑1986, long after the institution of the present appeal on 10‑3‑1983. He submitted that this appeal was forwarded on 17‑4‑1986 by the General Manager (T&G), WAPDA, Lahore to whom it had been addressed to the General Manager (Coordination), WAPDA, Lahore (Annex. N‑II) for necessary action.
11. In the background of these facts, what requires to be determined is whether preference of a departmental appeal on 7‑4‑1986 long after the institution of the present appeal was sufficient compliance with the requirement of proviso to subsection (1) of section 4 of the Act and whether we have the jurisdiction to decide this appeal.
12. Proviso to section 4(1) lays down that where an appeal, review on representation to a departmental authority is provided under any rule against the punitive 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.
13. It is abundantly clear from these provisions that preference of a departmental appeal is a prerequisite for competency of an appeal under section 4(1) of the Act and that the Tribunal can have jurisdiction to entertain and decide such appeal only if this jurisdictional requirement is fulfilled. As already pointed out, there is no denial of the fact that the WAPDA (E & D) Rules do provide for a departmental appeal against the order of dismissal. Such an appeal was not filed within the prescribed period of sixty days, which leads us to an irresistible conclusion that the present appeal did not lie and that we do not have the jurisdiction to decide it.
14. The appellant's pleadings bear out that she successfully challenged the order of her demotion from the post of Telephone Supervisor in the Labour Court with a petition under section 25‑A of the I.R.O., 1969. The respondents challenged the validity of the Labour Court's order in a writ petition before the High Court, which was decided on 9‑10‑1982 alongwith certain other similar petitions involving the same question of jurisdiction of Labour Court. The High Court held that she was holding a post under the authority as a civil servant for the purpose of the Service Tribunals Act, 1973 and that the Labour Court's order was without jurisdiction and lawful authority. Nothing can be more clear to show that she became aware of her status after the passage of High Court's judgment. This being so, she should have withdrawn her petition under section 25‑A of the Ordinance challenging the validity of the order of her dismissal and come to the Tribunal after fulfilling the statutory jurisdictional requirement. The departmental appeal filed on 7‑4‑1986 was by no means a compliance with the requirement of proviso to section 4(1) of the Act.
15. The question whether grievance notice under section 25‑A of the Act did serve the purpose of a departmental appeal was examined by a Full Bench of this Tribunal in the case of Muhammad Latif Bhatti v. Chairman, AEB, WAPDA, Gujranwala 1986 P L C (C.S.) 111. It was held that this notice did not amount to a departmental appeal under rule 11 of the Discipline Rules. The appeal was dismissed as being incompetent. The background of Muhammad Latif Bhatti's case was that he successfully challenged the validity of order of his removal from service dated 2‑12‑1981 in the Labour Court in a petition under section 25‑A of the Ordinance. On a Constitutional petition, the High Court set aside the Labour Court's order reinstating the appellant and the order of his removal was restored as the interference of the Labour Court was found to be without jurisdiction, the appellant having been declared to be a civil servant under section 17(1‑B) added by Ordinance No. 16 of 1975, for the purpose of seeking relief under the Service Tribunals Act. After the High Court's judgment, the appeal was filed before the Tribunal under section 4 of the Act, which was opposed by the WAPDA on a preliminary objection regarding its competency on the ground that the requirement of first proviso to section 4(1) of the Act remained unsatisfied, as the appellant had not exhausted the departmental remedy provided by rule 11 of the WAPDA (E & D) Rules, 1978.
16. On an appeal against the Tribunal's judgment, it was held by the Supreme Court 1987 S C M R 1936 that after the High Court's decision determining the status of the appellant and the question of jurisdiction, it was then an occasion for him "to have referred to the law applicable and satisfied its jurisdictional requirement for approaching the Service Tribunal and that having failed to do that, he could not as a matter of legal right claim that the Service Tribunal was bound in law to treat his grievance notice as substantial compliance with the law, requiring a departmental appeal before approaching the Service Tribunal.
17. Like in Muhammad Latif Bhatti's case, the appellant should have had recourse to the Tribunal with an appeal under section 4 of the Act after fulfilling the jurisdictional requirement, after it had been found by the High Court on 9‑10 1982 that she was a civil servant and that the order of the Labour Court was without jurisdiction. Instead she waited for the outcome of her petition before the Labour Court which was ultimately returned for lack of jurisdiction on 8‑2‑1983. If she had failed to file a departmental appeal after the High Court, judgment, she could at least have done it after the dismissal of her petition by the Labour Court on 8‑2‑1983. Even then she did not bother to fulfil the statutory requirement of filing a departmental appeal under rule 11 of the discipline rules and we have no doubt in our minds that the present appeal filed before the Tribunal without fulfilling the jurisdictional requirement is bound to fail as being incompetent.
17‑A. The matter presents another aspect: Before the Tribunal's decision in Latif Bhatti's case on 10‑11‑1985, there was a difference of opinion on whether a grievance notice can be treated as a departmental appeal; which was finally settled on 17‑12‑1986 in appeal to the Supreme Court, where, upholding the Tribunal's judgment in this case, it was ruled that a grievance notice did not amount to a substantial compliance with the provisions of rule 11 of the rules, so as to satisfy the jurisdictional requirement of first proviso to section 4(1) of the Act. It can possibly be argued that confusion on this point was removed in the Tribunal's judgment on 10‑11‑1985 and finally by the Supreme Court on 17‑12‑1986 and that the appellant was justified to be under a bona fide belief that grievance notice already served upon the respondents before the institution of the present appeal on 10‑3‑1983, did serve the purpose of a departmental appeal and that the jurisdictional requirement of section 4(1) of the Act had been duly fulfilled. In the presence of this genuine misunderstanding, the filing of a departmental appeal on 7‑4‑1986 was at the most a lapse which should be condoned and ignored under the circumstances.
18. Ex facie, the argument does not appear to be without substance, but a closer application to the point is bound to lead us to a different conclusion. As I see the matter, it is not a simple question of condoning any lapse or delay on the part of the appellant. The point is fundamentally that of jurisdiction and what we have got to see is whether, under the circumstances of this case, an appeal did lie to the Tribunal, so as to confer jurisdiction of deciding the matter. The very basis of the competency of the appeal and consequential jurisdiction of the Tribunal is radically taken away, if it be held that in view of peculiar facts of the case, the grievance notice cannot be deemed to have served the purpose of a departmental appeal. It will be seen that primary consideration in Latif Bhatti's case was that he had become aware of his position after the High Court's judgment in 1984. The basic thing was the knowledge derived from the High Court's decision regarding his status of a civil servant and the Supreme Court held that after that knowledge, he should have made an address to the law applicable for satisfaction of its jurisdictional requirement before approaching the Service Tribunal. Therefore, the date for the purpose was neither that of the decision of the Tribunal nor that of the Supreme Court. The time relevant and material for settlement of question was when the necessary knowledge or consciousness came about. In Latif Bhatti's case, this was when the High Court decided the matter in 1984 and told him that he was a civil servant and the Labour Court's judgment was without jurisdiction. In the present case, this came about on 9‑10‑1982 when the High Court accepted the respondents' writ petition and told the appellant that she was a civil servant and that her remedy lay before the Tribunal. Furthermore, in the context of this discussion, what is really important and substantial is the fact that the decision of the High Court in this case as also in that of Latif Bhatti, purports to point out and declare the existence of a law already there on the Statute Book in the shape of section 17(1‑B) of the WAPDA Act, 1978. Be that as it may, in the appellant's case, the controversy was cleared by the High Court on 9‑10‑1982, where-after she had no justification for remaining with her petition before the Labour Court. It was her duty after that eventuality to have taken immediate steps to fulfil the jurisdictional requirement of law applicable to her case, as laid down by the Supreme Court to Latif Bhatti's case. Her failure to do so leaves us with no alternative but to hold that the basic requirement of jurisdiction to entertain the appeal has not been fulfilled in this case.
19. The question of limitation is equally important. As already noticed, it was held by the High Court on 9‑10‑1982 to the respondents' Constitutional petition against the appellant that she was a civil servant and that the Labour Court did not have the jurisdiction to decide any matter regarding her service. After this decision, she should have withdrawn her petition before the Labour Court and instituted an appeal under section 4 of the Act after fulfilling the requirement of first proviso of the section. However, she waited for the Labour Court's decision in her petition, which was dismissed for want of jurisdiction on 8‑2‑1983. The present appeal filed on 10‑3‑1983 is evidently hopelessly time‑barred.
20. She was bound to explain each day's delay after the High Court's judgment on 9‑10‑1982. An attempt has been made in the application for condonation of delay, and that too rather feeble, only to explain the delay which came about after the return of her petition by the Labour Court on 8‑2‑1983. She pleaded that she "was sick on that day and after recovery obtained a copy of the order and the application and then handed over her documents to the counsel for preparing the appeal. It was pleaded that after it had been prepared, it was filed without intentional and deliberate delay. These pleadings can hardly stand the test of analysis. They are ex facie infirm and unconvincing. The application for condonation of delay hardly makes out a case and we feel no hesitation in saying that there is no ground for favourable exercise of discretion, to say nothing of the period from 10‑10‑1982 to 7‑2‑1983 about which there is not even an explanation as to why it was allowed to lapse without any action.
21. This was in respect of the points regarding competency of the appeal and limitation. As for the fact of respondents' failure to serve her with a second show -cause notice for explanation and provide her with a copy of the enquiry report, the matter has to be seen with reference to certain material facts. Although rule 5(a)(b) requiring tentative determination of the penalty and an opportunity of further explanation after supply of the copy of the report, was placed on the book by substitution on 5‑11‑1982, the principle laid down by the Supreme Court in S. Mir Muhammad's case was nevertheless there. This was based on interpretation of similar provisions of rules 5 and 6 of the N.‑W.F.P. Government Servants (E & D) Rules, 1973. In view of this principle, if not in pursuance of any specific rule in this regard, the respondents should have supplied the appellant with a copy of the enquiry report for explanation. However, the facts of this case are distinguishable, so as to lead us to the conclusion that the respondents' failure to fulfil the necessary requirement has not resulted in any miscarriage of justice.
22. It is an admitted fact that, as far back as on 10‑12‑1979, the Chief Engineer, Telecommunications addressed a letter to the appellant on the subject of "impersonation" where the following three points were made out:‑
(i) The first was that the lady of the name of Miss Akhtar Roseline daughter of Emanual in whose favour the Matriculation Certificate furnished by the appellant was issued, had subsequently passed her B.A. Examination from the University of the Punjab.
(ii) The second, in accordance with the available record, the appellant's highest qualification was that of Matriculation and there was no mention of the passing of any other examination.
(iii) The third, equally important, was that she was asked to clarify her position and furnish a copy of her B.A. Degree to the office within three days of the receipt of the letter, failing which it will be assumed that the Matriculation Certificate furnished by her belonged to another person. (Annex. D).
23. Nothing can be more clear than the appellant's reply dated 14‑1‑1979 (Annex. E) to lead the, respondents to the assumption that she was not Miss Akhtar Roseline in whose favour the certificate had been issued. Instead of addressing herself directly to the question raised in letter dated 10‑12‑1979, she side‑tracked and made a reply which was clearly evasive. She should have said that she never appeared in BA. examination and the Matriculation Certificate did belong to her and that Miss Akhtar Roseline daughter of Emanual who appears to have passed B.A. examination, had nothing to do with the certificate. Instead, what she said was that "in case I undertake any further education for my betterment, in my opinion the department should not interfere" and that "I am being harassed and for mental torture only for nothing". I am unable to understand what else was required for the inference that the Matriculation Certificate produced by her for securing the job, did not belong to her. Consequently, the department had every justification for making further enquiry.
24. Then, she was served with charge‑sheet dated 25‑10‑1980) (Annex. DZ) alongwith the statement of allegations. She received it on 26 10‑1980. In these documents, it was alleged that, as a result of verification from different agencies, the Matriculation Certificate relied upon by her belonged to some other person and that she had fraudulently used it to manage her employment with the respondent. A reference to the aforementioned letter dated 10‑12‑1979 was also made in the charge‑sheet as well as the statement of allegations. She was called upon to put in her written defence within 14 days of the receipt of the charge- sheet, stating at the same time whether she desires to be heard in person.
25. She submitted her explanation dated 7‑11‑1980 (Annex. EZ) received on 8‑11‑1980. The correctness of the allegation s made m the charge‑sheet was denied and the appellant prayed that an enquiry may be held into the matter.
26. Letter dated 29‑11‑1980 (Annex. FZ) addressed by the appellant to the Inquiry Officer bears out that he had asked her through letter dated 22‑11‑1980 to appear before him on 29‑11‑1980. It is stated in this letter that he had not mentioned in his letter dated 22‑11‑1980 as to "what type of enquiry and in which matter is to be held on 29‑11‑1980". She further said that "since the details of the enquiry arc not known, it will not be possible for me to participate in the enquiry on 29‑11‑1980"
27. An endorsement on this letter (Annex. FZ) shows that its original copy was given by hand to the Inquiry Officer by the appellant. This apart, the certificate (Annex. GZ) shows that she herself appeared before the' Inquiry officer on 29‑11‑1980 and she was told that the next hearing would take place on 14‑12‑1980.
28. Another letter (Annex. HZ) addressed by her on 13‑12‑1980 to the Inquiry officer is on record. In this letter she made a request to the Inquiry officer to refer to her previous letter dated 29‑11‑1980 and said that it will not be possible for her to participate in the enquiry on 14‑12‑1980 unless the details and nature of the enquiry are made known to her…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.