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Case No. 69 of 1983, decided on 12th September, 1983.

(a) Punjab Service Tribunals Act (IX of 1974)---

-- S.4 read with Limitation Act (IX of 1908), S. 5-Abatement- impugned notification issued on 15th December, 1972-Challenged by way of civil suit-Suit withdrawn in 1982 and appeal before Tribunal filed 5 months thereafter-No explanation for continuity of civil suit after establishment of Tribunal and also for delay of 5 months after withdrawal of civil suit-Suit, in circumstances, held, stood abated hence appeal hopelessly time-barred.

(b) Civil service---

--Disciplinary action-Ex parte inquiry and proceedings-Accused deliberately refusing to receive letters sent through registered post and not participating in enquiry-Cannot be allowed to raise plea of condemnation without being heard.

M. Anwar Sipra for Appellant.

A. G. Humayun, District Attorney for Respondent.

S. ABDUL JABBAR KHAN (CHAIRMAN).

-Inayat Ullah Cheema, ex. Store-Keeper has filed this appeal under section 4 of the Punjab Service Tribunals Act, 1974, in which he has impleaded the Province of the Punjab through the Superintendent, Government Printing Press, Lahore, as respondent.

2. By virtue of this appeal he has prayed that the impugned notification, dated 15th December, 1972, be set aside and the penalty so imposed be declared as unlawful and illegal.

3. Brief facts of the case are that the appellant was posted to work as Store-Keeper, Book Depot and subsequently deputed to work in the Text-Book Stores. He worked on this post from 15th October, 1968 to 13th May, 1971. The appellant applied for L P. R. for 6 months from. 14th May, 1971, to 13th November, 1971, but without waiting for sanction he left for home. As he did not band over the charge in a proper manner, the Department was left with no alternative but to prepare a list of stock available. The appellant was called for from home to verify and sign the same and hand over the complete charge in a proper manner vide order, dated 17th June, 1971. He handed over the charge to Sabir Ali Malik, on 5th July, 1971, and lists in question were signed by the appellant according to which there was shortage of Rs. 41,052.65. He was called upon to explain his position as to why shortage should not be made good from him. The appellant did not make any response to the same although three reminders were issued to him under Registered A. D. cover but the same were returned undelivered and the Postal Authorities observed that the addressee refused to receive the same. The Enquiry Officer was appointed to investigate into the matter and it was reported by the Enquiry Officer that the appellant was not co operating and al; the communications sent to him, were returned back as undelivered with the Postal Authorities' remarks thereon that he refused to receive the same. Thus the appellant was charge-sheeted vide order, dated 21st October, 1972. A formal enquiry was conducted and he was found guilty of the charges so levelled against him. Ultimately penalty of recovery of Rs. 41,052.65 was imposed upon him. The appellant in 1972, approached the civil Court on this issue and later on he withdrew due to the reasons best known to him on 4th September, 1982. He has filed this appeal before this Tribunal on 16th February, 1983.

4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Depart ment and have perused the record of this case with their assistance.

5. It has been argued on behalf of the appellant that the order of the Enquiry Officer and resultant Gazette Notification was unlawful and liable to be quashed. The reason advanced for this argument was that the inquiry was not conducted according to the law and procedure set forth under the Rules and it was absolutely an ex parte affair. A grievance was made that the appellant has been condemned without being heard and he was not given any opportunity to produce his evidence and to cross-examine the witness.

6. On the other hand learned District Attorney has assailed the appeal both on merits as well as on legal plane and has submitted that the appellant took recourse to civil suit which he filed in 1972, but con tinued with the same although the same stood abated in 1974, when the Tribunal had come into existence. He wasted full 10 years in this process and suddenly one fine morning chose to withdraw his suit, without any reason and filed this appeal 'before this Tribunal, even after lapse of 5 months, which he was otherwise required to do so after one month of the said withdrawal. Learned District Attorney has laid stress on the point that when in 1974, the suit had abated by coming into existence of this Tribunal, the time would start running from the said date and not from the date when he chose to withdraw the case from his own whim and fancy.

7. With regard to the facts of the case, he has submitted that all possible human efforts were made to secure the attendance of the appel lant to associate him with the enquiry so pending against him, but it is on the record the letters addressed to him under Registered A. D. covers, were returned with the observation from the Postal Authorities that he refused to receive the same. According to the learned District Attorney the service was sought to have been made on the appellant and the bail was in his Court as to make his appearance and associate himself with the proceedings or to keep himself away. In view of the above, it was vehemently argued that the appellant himself was at fault, not to deliver the charge in proper manner and thus was justly held to be responsible for the loss of Rs. 41,052.65.

8. We have given our anxious thought to the arguments advanced by the parties and find that the appellant did go to the civil Court on the sane issue now before us and continued to proceed with the matter despite the fact that Service Tribunal had come into existence during that period and by virtue of the same, all suits stood abated before all Courts of the country including High Court and Supreme Court of Pakistan. This being the situation it was incumbent upon the appellant to come before the Tribunal and seek remedy from this forum. It is proved on the record that he failed to do so and has brought a lis before this Tribunal which is obviously time-barred by 9 years. When we see his belated efforts after withdrawing the suit from the civil Court, we even find that the appeal to this Tribunal is again barred for 5 months and no application for condonation of delay has been filed in this behalf, under section 5 of the Limitation Act, to enable this Tribunal to see whether such inordinate delay could be condoned or not. In view of the above, we hold that the appeal is hopelessly time-barred and is liable to be dismissed on this score alone.

9. With regard to the merits of the case, it is clear from the record that be did not hand over the charge while gong on L.P.R. to his succes sor and when he was called upon to endorse the lists so prepared in his absence, he signed the same. In this way it can be safely presumed that be accepted the liability of shortage, which was reflected in the said lists.

10. With regard to the procedure of inquiry conducted against him, it is on the record that all the letters under Registered A.D. were returned at all stages with the observation of the Postal Authorities that the addressee had refused to receive the same. In these circumstances the enquiry against him so made cannot be considered ex parse as it was the appellant who chose to absent himself deliberately from its proceedings, therefore, he cannot be allowed to come forward with the plea that he has been condemned without being heard.

11. In view of the detailed analysis of the case we proceed to dismiss the appeal as time-barred as well as without being on merits. There will be no order as to costs. This judgment be communicated to the parties.

A. B. Appeal dismissed.

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