MUHAMMAD YOUSAF vs THE CHIEF ENGINEER, IRRIGATION Ex.S

ORDER

KARAM ELAHEE CHAUHAN, J.-The petitioner who at the relevant time, was serving as Sub-Engineer (Overseer) was compulsorily retired from service by the Superintending Engineer (H/Q), Irrigation, Multan. In exercise of the powers conferred on him by section 12(il) of the Punjab Civil Servants Act, 1974 (as amended) by means of his office order dated 31-5-1975.

2. The petitioner filed a departmental appeal before the Chief Engineer on 5-6-1975 (supplemented by further grounds on 30-6-1975)-which it appears remained pending and was never taken up or decided by the Departmental Authority concerned.

3. The petitioner, in the circumstances, filed a statutory appeal being Appeal No. 340/1975, under section 4 of the Punjab Administrative Tribunals Act, 1974 (as amended by Ordinance IX of 1975) before the Punjab Service Tribunal on 24-10-1975 supplemented by further grounds on 9-12-1.975.

4. At this place it may be mentioned that this appeal also remained pending for a considerable ; period. However, on 5-7-1977, Martial Law in the country was imposed and the petitioner filed a petition for review before "a Review Board" under certain Martial Law instructions/directions or order on 14-9-1977. Later, on 22-10-1977 there was gazetted Martial Law Order No. 23 of 1977 which provided that in such cases a Review Petition before a Review Board could be filed provided the civil servant concerned withdrew any appeal which he might have filed elsewhere. On 6-12-1977 the aforesaid Martial Law Order was amended by M. L. O. 26 whereby a new paragraph 8 was added to the original M. L. O. 23 of 1977 which stated that "all actions taken by a Review Board not formally set up under this Martial Law Order, to receive petitions, to give hearing to the petitioners and to enquire into petitions, and all recommendations made by such Board, shall be deemed to have been validly taken or made".

5. It is conceded that the petitioner appeared before the Review Board in connection with his Review Petition on a date at present not definitely known to him. However, by a communication dated 2-4-1978, he was informed that his Review Petition has been dismissed.

6. At that juncture the petitioner moved the Punjab Service Tribunal for decision of his statutory appeal which was still pending before it. The learned Tribunal dismissed the appeal on 2-5-1978 on the short ground that the act of the petitioner in filing a Review Petition before the Review Board implied that be had waived his right to follow this appeal or in other words the institution of the review petition amounted to the withdrawal of appeal before the Tribunal. Consequently they held that "we accordingly dismiss the appeal treating the same as having been withdrawn".

7. The petitioner has come up in a petition for special leave to appeal against the same to this Court under Article 212 (3) of the Constitution.

8. It has been argued that the petitioner had never withdrawn his statutory appeal which he bad filed before the Tribunal and nor he had given any such statement orally or in writing before the Review Board.

In these circumstances to attribute any withdrawal of the appeal to the petitioner is not justified. It is further stated that if the Review Petition was not competent without the withdrawal of appeal before the Tribunal then the order of the Review Board would rather be without jurisdiction if it was passed without the actual withdrawal of the appeal. It is submitted. That in these circumstances the order of the Review Board could not render the appeal as having become incompetent.

Learned counsel also laid stress on paragraph 8 which was added in M. L. O. 23 by M. L. O. 26 on 6- 12-1977. This newly added paragraph validated Review Petitions received by the Review Board prior to the promulgation of M. L. O. 23, learned counsel submits that since at the time when the Review Petition was filed there was no provision for withdrawing any appeal which may have been instituted earlier, therefore, a Review Petition filed without withdrawal of that appeal was according to paragraph 8 to be considered as having been "validly received" by the Review Board, and the string of withdrawal of any earlier appeal was not to be attached to the same. Learned counsel also submits that the effect of the impugned order of Tribunal is that it had deprived him of his statutory right of appeal. He submits that his client has not been heard by any concerned departmental authority nor by the Tribunal and he has not been given any opportunity to defend himself at any stage.

9. The questions raised involve a construction and correct interpreta--tion of the relevant provisions of the Punjab Administrative Tribunal Act, 1974 (as amended) and M. L. O. 23 as amended by M. L. O. 26 and their application to the facts and the circumstances of the present case which is probably of a first impression, and is likely to effect a large number of similar other cases. Leave to appeal is granted. Security Rs. 1,000. The appeal to be heard on the present record.

Complete record of the Review Board may also be summoned.