GULBAT KHAN vs WATER AND POWER DEVELOPMENT AUTHORITY through its

' MUHAMMAD AFZAL LONE, J.---This appeal through leave to appeal is directed against the dismissal, by the Federal Service Tribunal, of the appellant's appeal as barred by time.

2. The relevant facts are that the disciplinary proceedings were commenced against the appellant, who was serving as Line Superintendent Grade-I with WAPDA, and on the basis of an inquiry, by way of punishment, vide order, dated 2-10-1986, he was reverted to the post of Line Superintendent Grade-II, and his name placed at the bottom of the seniority list of the Line Superintendents Grade- II. This order was assailed by him through an appeal before the Federal Service Tribunal,During its pendency he was served with a notice, dated 21-1-1987 under Rule 12 of the Pakistan WAPDA (Efficiency and Discipline) Rules, 1978, requiring him to show cause as 'to why the penalty imposed on him be not suitably enhanced to commensurate with the nature of the charges proved against him. The appellant contested the notice, but the Authority vide its order, dated 29-6-1987 removed him from service with immediate effect. On 11-7-1987 the appellant preferred a departmental appeal against this order, but as no intimation regarding its disposal was given to him within 90 days, on 27-10-1987 he filed another appeal against the order, dated 29-6-1987 before the Federal Service Tribunal. The Tribunal took the view that the order as to the appellant's reversion stood merged in the subsequent order of his removal from service and thus his first appeal became infructuous. As regards the second appeal, it having been filed beyond the period of 30 days from the date of the order assailed therein, the Tribunal without going into the merits of the case treated it as barred by time. In its opinion, no appeal before the departmental authorities was provided against the order made under Rule 12; meaning thereby the time consumed in pursuing that remedy could not be excluded in computing the period of limitation for filing the appeal under section 4 of the Service Tribunals Act. The Tribunal's order is dated 23-2-1989.

3. The fate of this appeal depends on the question as to whether or not any appeal or other remedy before the Authority against the removal order was available to the appellant, because it was only when such a remedy could be availed of by him as a matter of right; that while filing an appeal before the Tribunal, the time spent on seeking remedy before the departmental authorities could be excluded. It will be seen that under section 17-B of the WAPDA Act, every person holding a post under the Authority for the purposes of Service Tribunals Act, 1973, is to be deemed to be a civil servant. It was on the basis of this provision that the appeal against the order, dated 29-6-1987 was brought by the appellant before the Federal Service Tribunal. As observed earlier, the period of limitation for filing such an appeal is 30 days from the date of communication of the order to the civil servant concerned. We may observe that if any appeal, application for review or representation to a departmental authority is provided from the order passed against a civil servant, availing of such remedy by him is the condition precedent for filing an appeal before the Tribunal. Such appeal has to be filed, as laid down in section 4,eafter expiry of 90 days from the date on which the appeal, application for review or representation, as the case may be, was instituted before the Departmental authorities. It is noteworthy that, where no right of appeal' or review is provided under section 22 of the Civil Servants Act, 1973, the aggrieved civil servant can make a representation to the forum next above the Authority, which made the order. Admittedly, no appeal before the departmental authorities, against the order, dated 29-6-1987 was provided in law. The question is, could the appellant, who is a civil servant, for the purposes of Service Tribunals Act, make use of the provisions of section 22? This issue fell for determination before this Court in Civil Appeal No, 281-K of 1986, and it was laid down: "There can be two possible views on the controversy in issue, namely, the strict view which found favour with the Tribunal that as the appellant was deemed to be a civil servant by virtue of above clause (1B) of section 17 of the Act for the purposes of the Service Tribunals Act, provision of subsection (2) of section 22 of Act of 1973 could not have been pressed into service and, secondly, the broader view can be that since the definition of civil servant given in clause (a) to section 2 of the Service Tribunals Act refers to the definition of civil servant provided for in Act of 1973, the provision of subsection (2) of section 22 of Act of 1973 can be pressed into service."

"We are inclined to hold that the above broader view is more apt to the object of above subsection.

(1B) of section 17 of the Act read with the definition of the expression 'service of Pakistan' given in Article 260 of the Constitution. The object of above subsection (1B) was to make the remedy of appeal under the Service Tribunals Act available to the employees of WAPDA and to achieve the above objective, by fiction of law, they were made civil servants. Since a civil servant cannot file an appeal without exhausting the remedy of a departmental appeal or review or representation provided under the Act of 1973 (i.e, Civil Servants Act) by virtue of proviso (a) to subsection (1) of section 4 of the Service Tribunals Act, the appellant being a civil servant by fiction of law could not have filed an appeal before the Tribunal without exhausting the remedy of representation under subsection (2) of section 22 of Act of 1973."

' The controversy, therefore, already stands resolved. The learned counsel for the Authority, however, contended that the appellant did not make any representation, but filed an appeal and that, too, before the Chairman of the Authority; despite the fact that order for his removal from service was made by the Authority itself. The submission thus was that, if section 22 was attracted the appellant having failed to file any representation, could not lay hand on section 22 for extension of time.

4. We are not impressed by this argument. There was no bar in treating the appeal as a representation. We feel that the Chairman of the Authority, to whom the departmental appeal was submitted, in all fairness should have regarded it as a representation and passed on the same for disposal to the Authority next above him. The appellant could not be made to suffer for the failure of the Chairman of the Authority, in failing to do what he was expected to do. We would treat the appellant's appeal as a representation within the meaning of section 22 ibid; as it was not decided one way or the other, after the expiry of 90 days, he justifiably preferred an appeal before the Tribunal on 27-10-1987. It was thus, within time and the Tribunal fell in error to hold otherwise.

' For the reasons aforesaid, this appeal is accepted and the impugned judgment set aside.

Resultantly, the appellant's appeal before the Tribunal shall be treated as- pending and disposed of afresh in accordance with law. The parties are left to bear their own costs.