IRSHAD MUHAMMAD SHAH vs HESCO and another
This petition for leave to appeal is directed against the order of the Federal Service Tribunal, Islamabad, which dismissed the petitioner's service appeal in limine on the ground that his departmental appeal against the penalty of compulsory retirement was barred by time. The core legal question was whether an appeal before the Service Tribunal is competent when the foundational departmental appeal was filed beyond the statutory period of limitation. The Supreme Court held that if a departmental appeal is not filed within the statutory period, the subsequent appeal before the Service Tribunal is incompetent. Consequently, the Court affirmed the Tribunal's decision, holding that the petition was meritless, and refused leave to appeal. The key principle laid down is that the exhaustion of a timely and competent departmental remedy is a condition precedent to maintaining an appeal before the Service Tribunal.
- Is an appeal before the Service Tribunal competent if the departmental appeal was filed out of time?
- Whether the failure to file a timely departmental appeal bars the remedy before the Service Tribunal?
' JAVED IQBAL, J.---This petition for leave to appeal is directed against order dated 6-4-2010 passed by learned Federal Service Tribunal, Islamabad whereby the appeal preferred on behalf of petitioner has been dismissed which is reproduced hereinbelow for ready reference:- "The appellant was awarded the penalty of compulsory retirement from service vide order dated 10-10-2006. His departmental appeal dated 30-1-2009 was time barred. The appeal therefore incompetent in view of 2007 SCM R 513 Dismissed in limine.".
2. Heard Irshad Muhammad Shah (In person) at length who mainly argued that major penalty could not have been imposed without having a fair, impartial and transparent departmental inquiry. It is next contended that departmental inquiry was never conducted in accordance with law but on the contrary the factual and legal aspects of the matter have been ignored without any rhyme and reason causing serious prejudice against the petitioner.
3. We have examined the above mentioned contentions in the light of relevant provisions of law and record of the case. Admittedly the departmental appeal was barred by time which has been dismissed by the learned Federal Service Tribunal in view of the law laid down by this court in Muhammad Aslam v. WAPDA (2007 SCM R 513) which is reproduced hereinbelow for ready reference:- "Besides it is well-settled in the case Anwarul Haq (supra) that if departmental appeal is not filed within the statutory period the appeal before the Tribunal would not be competent. Relevant para. Is, therefore, reproduced herein below:--- "The learned counsel for the petitioner frankly conceded before us that after resignation of the post he has been performing his official functions as Assistant Executive Engineer. The Tribunal was, therefore, right in holding that after a lapse of 18 years the relief sought by the petitioner for correction of the seniority list was time-barred. Reliance was also rightly placed by the learned Tribunal on the judgment of this Court in the case of Chairman, PIAC v. Nasim Malik (PLD 1990 SC 951) that when an appeal before the departmental authority was time-barred, the appeal before the Tribunal was also incompetent on the account. "
3. The above view was reiterated by this Court in the cases of (i) Dr. Anwar Ali Sahto and others v.
Federation of Pakistan and others PLD 2002 SC 101 (ii) State Bank of Pakistan v. Khyber Zaman and others 2004 SCMR 1426 and (iii) N.E.D. University of Engineering and Technology v. Syed Ashfaq Hussain Shah 2006 SCMR 453". Muhammad Aslam v. WAPDA (2007 SCMR 513).
4. In the light of what has been mentioned hereinabove the petition being barred by time has rightly been dismissed by learned Service Tribunal. No irregularity or illegality could be pointed out warranting interference in the judgment impugned. The petition being meritless is dismissed and leave refused.