S.A. MUKARIM Versus GOVERNMENT OF SIND

ZAFFAR HUSSAIN MIRZA, J. ‑‑This appeal by leave arises out of the judgment dated 15th May, 1983, by the Sind Service Tribunal, Karachi, dismissing the appeal of the appellant as infructuous and not maintainable.

2. The appellant was an employee in the Excise and Taxation Department of the Government of Sind as Excise and Taxation Inspector, when as a result of charges of misconduct and departmental enquiry under Sind Civil Servants (Efficiency and Discipline) Rules, he was dismissed from service by order dated 27th July, 1978. Appellant filed a departmental appeal before the Chief Secretary, Government of Sind, but pending decision thereof he also filed an appeal before the Sind Service Tribunal, Karachi, under section 4 of the Sind Service Tribunals Act, 1973, on 27th December, 1978. His appeal was, however, dismissed by the Service Tribunal as time‑barred on 30th January, 1979. The appellant came up before this Court in appeal and it having been found that his appeal before the Service Tribunal was filed within time, the order dismissing his appeal dated 30th January, 1979, was set aside and the case was remanded to the Service Tribunal for being heard on merits according to law.

3. It so happened and this is a crucial point for the decision of this appeal, that the appellant's departmental appeal was partly allowed, in so far as the order of dismissal from service was substituted by an order of compulsory retirement from service with effect from 27 th July, 1978. When the case of the appellant was received by the Service Tribunal on remand, the appellant filed an application for amendment of the Memo of Appeal, so that the appellant could bring on record the supervening fact of the order passed by the Chief Secretary, Government of Sind, dated 14th January, 1980, whereby the penalty of dismissal was converted into that for compulsory retirement. The learned Service Tribunal noted the fact that the aforesaid order dated 14th January, 1980, had been communicated to the appellant when the prior proceedings for leave to appeal were pending in this Court. Having regard to this the learned Tribunal formed the view that the appellant was entitled to file a fresh appeal against the final order passed in the departmental appeal within thirty days of the communication of that order as provided by section 4 of the Sind Service Tribunals Act, 1973, but he did not do so and there? fore he cannot be permitted after the expiry of the period of limitation to challenge the order by means of an application for amendment of Memo of Appeal pending before the Tribunal from the original order as a result of the remand by this Court. The Tribunal accordingly refused permission to amend the Memo of Appeal and further held that the pending appeal had become infructuous, as in its view the impugned order of dismissal had been set aside and substituted with an order of compulsory retirement.

4. Leave was granted in this case to determine whether tie remedy by way of appeal having been invoked by the appellant in respect of the original order removing him from service, the subsequent modification of the penalty, would have the effect of depriving him of his right to remedy in respect of the primary departmental order holding him guilty of the charges levelled against him.

5. Now the view that prevailed with the learned Service Tribunal is summarised in the following passage of the impugned judgment':

"Under section 4 of the Sind Service Tribunals Act, 1973, a civil servant aggrieved by the 'Final Order' whether original or appellate made by a departmental authority could prefer the service appeal to the Tribunal within 30 days of the communication of such order. After the appellate order was passed that order became the final order and it was open to the appellant to prefer a fresh appeal within 30 days of the communication of that order, before the Tribunal. He, however, did not care to do so even after the appeal had been finally heard before the Supreme Court and the case remanded. The amendment of the memo of appeal cannot be allowed at this stage because the appellant cannot be allowed to amend the memo of appeal by introducing new cause of action after the appeal against such cause of action had become barred by limitation. Any such amendment would defeat the purpose of section 4 of the Sind Service Tribunals Act as meanwhile a right has accrued to the other side for pleading a valid defence of limitation. Leave to amend is accordingly refused in case of appellant, S.A.Mokarim and since the old appeal filed by him has since become infructuous the impugned order of dismissal having been set aside, his appeal is dismissed as being not maintainable. "

The contention of the learned counsel for the appellant is that the subsequent decision in the departmental appeal filed by the appellant, whereby the original order of dismissal from service was partly modified to substitute the penalty, in no way had the effect of depriving the appellant of the right to remedy which he had already invoked, particularly when his appeal was remanded by this Court to the Service Tribunal with a direction to determine the same on merits. In other words the argument of the learned counsel is that the maintain?ability of the pending appeal cannot be affected by a decision of the appellant authority in the departmental appeal.

6. The perusal of the passage from the judgment of the Tribunal quoted above shows that the primary ground on which it was held that the appeal was rendered infructuous was that the impugned order of dismissal had been set aside by the departmental appellate authority. This is a wholly untenable position. On the admitted facts it is clear that the appellate authority had not set aside the original order of dismissal from service passed against the appellant but had modified the same only in regard to the penalty imposed upon him. The grievance of the appellant in the appeal unless it is shown to be otherwise, must have been against the finding of guilt in respect of the charges levelled against him and found to have been established by the authority which passed the original order. Under the circumstances the essential part of the adverse finding upon which the penalty was inflicted remained intact, it could not be said that the order in appeal before the departmental authority had been set aside in the sense that it stood wiped off in regard to all its legal consequences. This being the position, the order was not set aside but was modified and since the modified order did not grant the relief sought by the appellant from the Service Tribunal, plainly the appeal of the appellant could not be rendered infructuous.

7. We are also unable to subscribe to the proposition that as an aggrieved civil servant has a right of remedy as against the appellate order, the original order already in adjudication before the Service Tribunal, would disappear and be merged into the appellate order, leaving the aggrieved party to invoke the right of appeal only against the final appellate order. This interpretation of the law, if examined in the light of the provisions of the Service Tribunals Act, would necessarily result in untenable consequences. Section 4 of the Sind Service Tribunals Act, 1973, creates a right of appeal in favour of a civil servant aggrieved by any final order whether original or appellate, Proviso (a) to the aforesaid section, however, enjoines upon the aggrieved civil servant to prefer an appeal or application for review or representation to the higher departmental authority before approaching the Service Tribunal. The said proviso, however, gives an option to the aggrieved‑ civil servant in case his departmental appeal is not decided within 90 days, to file an appeal against the original order without waiting for the result of his departmental appeal. Once in such a situation an appeal is filed and the Service Tribunal is properly seized of it, the combined effect of sections 4 and 5 of the Sind Service Tribunals Act, 1973, would be that the Service Tribunal will be competent to decide the appeal qua the original order, without reference to the appellate order, unless of course in a case in which the appellate authority has enhanced the penalty under rule 10 of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973, in which case the aggrieved civil servant may be required to file a fresh appeal in respect of the order of enhancement of penalty. But if the civil servant, even in such a case, wishes to take opportunity of challenging the original order on the basis of illegalities, so that in case of success in the appeal the original order is vitiated, then he may ignore the appellate order, and rely on the principle that when the basic order itself is set aside, the superstructure consisting of the appellate order would also collapsed alongwith it. But in such a case if he fails in his pending appeal before the Service Tribunal, he would be left with no remedy so far as the enhancement of penalty made by the appellate authority.

8. On the reading of the provisions of section 4 of Sind Service Tribunals Act, 1973, it 'appears to us that since the aggrieved civil servant has 'been given the right of appeal against the final order made by departmental authority, whether original or appellate, once he exercised the right of challenging the original order, plainly such right to remedy having been invoked, creates a vested right to have his appeal determined on its merit, irrespective of what orders are passed in the departmental appeal by the appellate authority. Even otherwise if he chooses to file another appeal against the appellate order, during the pendency of the appeal against the original order, obviously it would be proper to hear both such matters at the same time. In the circumstances as in the present case the penalty was not enhanced, but was rather reduced by the appellate authority, the Service Tribunal ought to have allowed the application of the appellant for amendment of the memo of appeal, in order to place on record the subsequent event of the passing of the appellate order. But we are unable to agree with the Service Tribunal that non‑filing of appeal against the appellate order, in anyway rendered the pending appeal before the Service Tribunal infructuous.

9. No substantial argument was advanced by the learned counsel for the respondent in support of the view taken by the Service Tribunal. The contention that the appellant had accepted the order passed by the appellate authority because he did not file an appeal against it, is without substance as he was pursuing his appeal from the original order in proceedings before this Court.

10. In view of the above discussion this appeal succeeds and the judgment of the Service Tribunal is set aside. The application of the appellant for amendment of the memo of appeal in the appeal before the Service Tribunal is also allowed and the case is remanded to the Service Tribunal for decision of the appeal on merits. This appeal is allowed in these terms with costs.

S. Q./S‑108/S ? ?????????????????????????????????????????????????????????????????????? Case remanded.