BASHIR AHMAD Versus WATER AND POWER DEVELOPMENT AUTHORITY, LAHORE
CH. HASAN NAWAZ (MEMBER).‑ ‑‑While in service as Finance officer WAPDA, t he appellant proceeded on leave preparatory to retirement for a period of one year from 5‑11‑1979 and ultimately retired on 4‑11‑1980.
The period of his service from 11‑10‑1951 to 26‑6‑1958 rendered in the Ministry of Food, Government of Pakistan, before joining Wapda on 27‑6‑1957 after acceptance of his resignation, was taken into account by the respondents for completion of 25 years qualifying service for the purpose of pension.
2. It appears from the record that he had been in correspondence with the respondents, before proceeding on leave preparatory to retirement on the question of commutation of service rendered under the Federal Government. He informed them by letter dated 30‑12‑1978 that he had been serving as a Clerk/ Stenotypist in the Ministry of Food and Agriculture, Government of Pakistan, for the period from 11‑10‑1951 to 26‑6‑1958, before his selection for appointment in Wapda where he joined on 27‑6‑1958 as Stenographer Grade‑1 after acceptance of resignation by the Federal Government on 26‑6‑1958. He relied upon the respondents' office order dated 28‑9‑1978 and requested for pension facilities which, according to this order, had been extended to those Federal Government servants who has a lien against pensionable posts under the Government and had resigned from their previous service to take up appointment under WAPDA. He claimed that his previous service should be counted for the purpose of grant of pension under WAPDA Pension Rules, 1977, because he had taken up his fresh appointment under WAPDA without any break (Annexure R/1).
3. On the same date 30‑12‑1978 that is to say, he gave an undertaking to pay proportionate pensionary charges for the period of service rendered by him under the Federal Government for the purpose of commutation of that service for the grant of pension/gratuity under the WAPDA Pension Rules, 1977. He stated in this undertaking that the Authority's decision in adding his previous service to the qualifying period for the purpose of pension/gratuity shall be acceptable to him.
4. Subsequently, on 29‑10‑1979, he gave another undertaking in continuation of the aforementioned previous commitment of 30‑12‑1978 to the effect that he shall pay to WAPDA a sum of Rs.52,331.84, to be worked out by them as proportionate pensionary charges under the existing orders for the period of service rendered by him under the Ministry of Food, Government of Pakistan.
5. It was in consequence of his request and the aforementioned undertaking that a sum of Rs.63,330 was deducted by the Authority after his retirement from the amount of his gratuity worked out by commuting 50% of his total pension in pursuance of Authority's Office Order No. SO(Admn)1(443)P.R./0866‑71, dated 28/30‑6‑1979. This was done on the basis of letter addressed by the Director Budget and Coordination on 13‑10‑1980 to the Director Insurance WAPDA on the subject of completion of appellant's pension papers.
6. The appellant's representation addressed to the Chairman WAPDA against the orders conveyed through aforementioned letter dated 13‑10‑1980, were rejected on 27‑6‑1984 and 11‑8‑1985. He challenged the validity of these orders in an appeal under section 4 of the Service Tribunals Act, 1973 before the Service Tribunal, where the prayer was that the impugned order dated 13‑10‑1980, 27‑6‑1984 and 11‑8‑1985 may be set aside and the respondents be directed to pay "the sum of Rs.63,330 which was deducted arbitrarily from the appellant's amount of gratuity/commutation.
7. This appeal was dismissed by the Tribunal on 7‑5‑1988 with certain observations mentioned in Para. 4 of the judgment. Relying upon these observations the appellant submitted another application to the respondents on 22‑7‑1988 requesting them to issue revised order in accordance with tile judgment "for the recovery of a sum representing pension contributions at the rate prescribed in the Finance Division O.M. No. 7/79‑1407, dated 15‑12‑1981.' He further requested that a sum of Rs.63,330 already deducted from his pensionary benefits may be paid to him on recovery of amount of pensionary contribution (Annexure D). The fact of rejection of his representation was conveyed to him by letter dated 1‑9‑1988 which said that the matter had been considered in consultation with the Law Division WAPDA and that the amount in question could not be paid to him in view of the judgment of the Service Tribunal.
8. He has challenged the respondents' order rejecting his representation in the present appeal, again under section 4 of the Act, where the prayer is "that the respondents be directed to accept from the appellant the amount of pension contribution and also direct them to pay to him a sum of Rs.63,330 recovered out of 50% of gratuity/commutation of his pension."
9. We have already noticed that the appellant's previous appeal, more or less for the same relief, was dismissed by the Tribunal on 7‑5‑1988 with certain observations in para. 4 of the judgment. After the dismissal of his appeal he relied upon the following observations in making his representation of 22‑7‑1986:
"The question of charging of pension contribution or pension contributory charges was referred to the Government of Pakistan, Ministry of Water and Power by. the Director Finance (R&I), WAPDA, under letter dated 18‑4‑1982 for clarification and the reply conveyed to him under letter dated 7‑12‑1982 from the Ministry of Water and Power was that the answer was contained in Finance Division Office Memorandum No.F.5(8)‑8.7/81‑1168, dated 16th November, 1982 wherein it was decided by the Government that pension contributions were to be made at the rate prescribed in the Finance Division Office Memorandum No.F.5(5)‑Reg.7/79‑1407, dated 15‑12‑1981. Accordingly, the appellant will be liable to pay pension contribution as indicated above if he chooses to draw full pensionary benefits for the total service qualifying for pension including that rendered under the Federal Government."
10. Last paragraph of the judgment is to the effect that "as discussed above, the appellant does not succeed in the appeal and it is dismissed with no order as to costs with the observations made in the preceding paragraph". The observations relied upon by the appellant are only a part of Para. 4 of the judgment. These observations, if read in the context of whole paragraph do not give rise to any fresh cause of action to justify another representation on the same question. There is nothing in the Tribunal's judgment to suggest that the appellant is entitled to demand, in the background of the facts of the case, that the amount in question should be paid to him on recovery of pension contributions regarding the period of his service with the Federal Government.
11. Merits apart, the appeal is time‑barred. According to the appellant's pleadings in para. 6 of the grounds of appeal, the respondent's letter dated 1‑9‑1988 informing him of the rejection of representation, was received by him on 4‑9‑1988. The present appeal filed on 9‑10‑1988 is evidently barred by limitation on account of having been filed after expiry of 30 days of the communication of respondent's order.
12. As we have noticed, the delay in instituting the appeal is by no means inordinate and it should have been ordinarily condoned. But we are going to take a different course because of what has been said in the application for condonation. As we have already mentioned, the delay was not much and the appellant should not have attempted any concealment of facts. In the appeal it has been plainly stated that the letter informing him of the rejection of representation was received on 4‑9‑1988. The same thing was repeated in para.2 of the application for condonation. But then, by way of explanation the appellant stated in this application that he had shifted to another house in Allama' Iqbal Town, Lahore and the letter of 1‑9‑1988 having been sent to his previous address was received by a relative who delayed its delivery till 4‑9‑1988, partly because of the fact that he was not aware of its importance and partly because his new address was not within his knowledge. The averments of application of condonation are ex facie inconsistent and we are inclined to hold that the appellant has not come to us with clean hands in so far as explanation for delay is concerned. We are inclined to say that the application for condonation has worsened his case rather than explaining the delay. Therefore, the prayer for condonation is rejected. .
13. For the aforementioned reasons, the appeal is dismissed as being without force and time‑barred. There will be no order as to costs.
A.A./732/Sr.P Appeal dismissed.