Find a Lawyer

Appeal No.185‑R of 1986, decided on 24th December, 1986.

‑‑S. 4‑‑Government Servants (Efficiency and Discipline) Rules, 1973, Rr.5 & 6‑‑Limitation Act (IX of 1908), S. 14‑‑Enquiry against civil servant for misconduct‑‑Punishment in accordance with finding of enquiry awarded to such civil servant‑‑Further enquiries against civil servant ordered by Authority against same misconduct‑‑Civil servant seeking remedy in High Court‑‑Appeal before Service Tribunal filed thereafter, beyond period of limitation‑‑ Condonation of delay‑‑Matter relating to terms and conditions of a civil servant being competent within exclusive jurisdiction of Service Tribunal, plea of such civil servant that he had been pursuing his remedies with due diligence, held, could not be accepted and time spent in prosecuting such misconceived remedy could not be excluded‑‑Time so spent in prosecuting remedy in wrong forum being not excluded, appeal by civil servant filed beyond period of limitation was barred.

‑‑‑S. 4‑‑Civil Servants Act (LXXI of 1973), S. 22‑‑Appeal before Service Tribunal‑‑Competency‑‑Remedy available to civil servant to represent his grievance to next higher authority not availed of‑‑Effect‑‑Even a final order passed against civil servant, held, could not be brought before Service Tribunal, where a right of appeal, review or representation to a departmental authority was provided under law, unless that right had been availed of‑‑Appeal against enquiry proceedings before a final order passed thereon would not be competent and ;vas liable to dismissal.

M.S. Siddiqi for Appellant.

Sardar Muhammad Amir Akbar Khan for Respondent.

Date of hearing:l0th December, 1986.

‑‑The case of the appellant, briefly speaking, is that while he was posted as A.G.E. in the Office of the Garrison Engineer of the respondent‑Department a disciplinary enquiry was ordered by the Director of Works and Chief Engineer (Defence Production, GHQ, Rawalpindi, and Syed Zaheer Hussain Shah, XEN, was appointed as Enquiry Officer who, after holding the enquiry proceedings, held the appellant and Mr. Muhammad Ramzan, Superintendent, responsible for destruction of auditable documents, misappropriation and improper issue of POL from Government stock and recommended the loss caused to the State to be made good by four persons including the appellant. Accepting the findings and recommendations of the Enquiry Officer the Director of Works and Chief Engineer ordered the appellant to deposit his share of the loss as worked out by the Enquiry Officer, besides conveying to him his severe displeasure. The appellant accordingly deposited the amount in the Government Treasury. Subsequently, however, the Engineer‑in‑Chief, GHQ, Rawalpindi, took cognizance of the matter and served a charge‑sheet dated 29‑7‑1985 on the appellant comprising two charges amounting to misconduct in purported exercise of the powers under the Government Servants (Efficiency and Discipline) Rules, 1973, and he was called upon to submit his written defence as to why disciplinary action should not be taken against him. The appellant submitted his explanation dated 8‑8‑1985 wherein he explaining his position, denied and refuted the charges levelled against him. The appellant also protested that under the law, no one could be punished twice for the same offence and accordingly he requested the respondent to withdraw the charge‑sheet. This plea of the appellant, however, was not accepted by the respondent who appointed Major Sardar Alam as the new Enquiry Officer in pursuance of rule 5(1)(ii) of the Government Servants (Efficiency and Discipline) Rules, 1973, and directed him to conduct the enquiry in terms of rule 6 of those Rules. Accordingly the second Enquiry Officer, Major Sardar Alam, after holding a detailed enquiry and examining a number of witnesses, compiled a report of his findings and recommended that the charges against the appellant had not been proved. However, instead of accepting the recommendations of the Enquiry Officer, the respondent had ordered a third enquiry to be held against the appellant. The appellant protested against being subjected to repeated enquiries into the same charges and in a formal representation dated 21‑1‑1986 he requested that the order of initiating against him the third enquiry proceedings should be withdrawn. In his reply dated 17‑2‑1986 the respondent had merely referred to the first enquiry as being untenable having not been held under the Government Servants (Efficiency and Discipline) Rules but avoided carefully reference to the second enquiry ordered by the respondent himself in accordance with the said Rules and thus, rejected the request of the appellant. This was followed by the Engineer‑in‑Chief's branch letter dated 4‑3‑1986 directing the appellant to attend the proceedings of the third enquiry. As the appellant considered all these actions of the respondent and the proceedings initiated by him as without lawful authority and of no legal effect he (the appellant) challenged them in the Lahore High Court. Rawalpindi, vide Writ Petition No.96 of 1986. According to the learned counsel for the appellant, however, the High Court had not appreciated the legal points involved and dismissed the said petition in limine observing that the power and better course for him was to wait till some final decision was reached in the enquiry initiated against him and then to challenge it in the Service Tribunal. In the meantime the appellant participated in the enquiry under protest and simultaneously served a legal notice on the respondent to withdraw and cancell the illegal proceedings initiated by him failing which the appellant reserved the right to claim damages. Although the respondent had not sent any reply to the appellant's aforesaid legal notice, he had since finalized the enquiry proceedings and served the appellant with a show‑cause notice dated 31‑5‑1986 calling upon him to show‑cause as to why he should not be dismissed from service. Since, according to the appellant, he had no other course open to him except to approach this Tribunal to save from malicious and arbitrary violation of the terms and conditions of his service he approached this Tribunal for a declaration that all the proceedings initiated after the first enquiry by the respondent including the show‑cause notice dated 31‑5‑1986, are without lawful authority and of no legal effect for the reasons and on the grounds averred in the memo. of appeal and urged at the Bar.

2. A number of serious objections were taken by the learned counsel for the respondent‑department about the competence and the maintainability of the present appeal. It was first contended by him that the appeal is barred by limitation as also by proviso (a) to subsection (1) of section 4 of the Service Tribunals Act, 1973. It was submitted on behalf of the appellant that this appeal aims to challenge the order of respondent dated 17‑2‑1986 whereby he refused to withdraw the order of initiating the third enquiry. If it is so the appeal is obviously time barred. An application for condonation of delay, has, however, been submitted on behalf of the appellant stating therein that he had been pursuing both legal and departmental remedies diligently and in time but it for any reason, time taken in the High Court is treated as having delayed the appeal, it may be condoned. Since however, it is by now well known that a matter relating to terms and conditions of a civil servant falls within the exclusive jurisdiction of this Tribunal the contention of the appellant that he had been pursuing his remedies with due diligence, cannot be accepted and time spent in prosecuting such misconceived remedy cannot be excluded. The present appeal, therefore, is held to be barred by limitation and the request of the appellant for condonation of delay is rejected as he has failed to show any sufficient cause for the same. We are also in accord with the learned counsel for the respondent that the present appeal is barred by proviso (a) to subsection (1) of section 4 of the Service Tribunals Act, 1973.

3. Quite obviously there was no order of a departmental authority which could be challenged in representation dated 21‑1‑1986 and as such the first order which can be treated as a final order before this Tribunal under subsection (1) of section 4 of the Service Tribunals Act, 1973, is the order dated 17‑2‑1986 passed on the said representation and against the same remedy for the appellant to represent to the next higher authority was available in law as provided in section 22 of the Civil Servants Act, 1973. Again, what proviso (a) to subsection (1) of section 4 of the Service Tribunals Act, 1973, relied upon by the learned counsel for the respondents, accomplishes is that even a final, order should not be brought before the Service Tribunal if a right of appeal, review or representation to a departmental authority is provided under the law, unless that right has been availed of. As even against the order dated 17‑2‑1986 the appellant has prematurely rushed to this Tribunal without exhausting the departmental remedy available to him under section 22 of the Civil Servants Act, 1973, the present appeal is not competent under section 4(1)(a) of the Service Tribunals Act, 1973, also.

4. Apart from the above in the present appeal the appellant mainly prays for declaring to be without lawful authority and of no legal effect the enquiry proceedings being taken against him before a final order is passed thereon. Undeniably, however, an appeal to this Tribunal lies only against a final order. The position being so clear, the only proper course for the appellant is to wait till a final order is passed by the competent departmental authority operating adversely against him and then to challenge it before this Tribunal on all pleas available to him. The learned counsel for the appellant, however, strenuously argued that if the disciplinary proceedings being taken against a civil servant are ultra vires or incompetent the same can be challenged before this Tribunal before passing a final order thereon and this Tribunal has jurisdiction to quash the same. We are, however, of the firm view that the disciplinary proceedings even if ultra vires or incompetent cannot be brought before the Service Tribunal for adjudication before a final order thereon is passed by the competent departmental authority. The present appeal is, therefore, incompetent on this ground also and is accordingly dismissed in limine.

A. A. /356/Lb. /S

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.