MUHAMMAD SALEEM CHAUDHRY vs SECRETARY TO GOVERNMENT OF PUNJAB, COMMUNICATIONS AND WORKS DEPARTMENT, LAHORE And 4 Others
This petition under Article 212 of the Constitution of Pakistan 1973 seeks leave to appeal against the judgment of the Punjab Service Tribunal. The petitioner had filed an appeal before the Tribunal under section 4 of the Punjab Service Tribunals Act, 1974 challenging departmental orders regarding his promotion. The Tribunal originally commenced hearing with a bench comprising its Chairman and two members, but during the proceedings, one member ceased to be a member and a third member was subsequently appointed. The appeal was ultimately heard only by the Chairman and one member, resulting in a split decision where the Chairman dismissed the appeal on limitation and other grounds, while the member allowed it on merits. The Chairman applied rule 24 of the Punjab Service Tribunal (Procedure) Rules, 1975 to treat the judgment as that of two members and dismissed the appeal. Upon review, with the consent of both parties' counsel, the Supreme Court converted the petition into an appeal, set aside the impugned decision of the Tribunal, and remitted the case back to be heard and disposed of by the full Tribunal on the available material.
- Can a service tribunal render a valid decision through a split bench when the membership changes during proceedings?
- Whether an appeal before the Punjab Service Tribunal must be heard by the full Tribunal when a vacancy is filled after the departure of a member?
- Can the Supreme Court remit a service matter back to the Tribunal for a fresh decision with the consent of the parties?
- Article 212, Constitution of Pakistan 1973
- Section 4, Punjab Service Tribunals Act 1974
- Rule 24, Punjab Service Tribunal (Procedure) Rules 1975
- Order XXXIII Rules 5 and 6, Supreme Court Rules 1980
ORDER
IRSHAD HASAN KHAN, J.---This petition under Article 212 of the Constitution seeks leave to appeal against the judgment of the Punjab Service Tribunal dated 21-11-1993 passed in Appeal No. 157/1992.
2. This case has a chequered history. It is however not necessary to go into detailed facts for the purpose of disposal of this petition. Suffice it to say that the petitioner filed an appeal under section 4 of the Punjab Service Tribunals Act, 1974, challenging therein order dated 7-9-1988 of the respondent-department whereby his representation was disposed of with the observation that pro forma promotion with effect from 23-11-1978 i.e. The date from which his junior was so promoted has already been granted to him vide Communication and Works Department Letter No. S&E-I (C&W)2-7/70, dated 8-7-1974 and order dated 22-3-1992 whereby his representation dated 25-10- 1989 on the same subject-matter was rejected by ' the Chief Minister. It may be observed that the impugned decision of the Chairman, the petitioner is stated to have been promoted as officiating Engineer initially from 21-11-1974, but later it was ante-dated to 23-1 I-1972 and his claim for pro forma promotion with effect from 13-12-1969 was not accepted.
3. The Punjab Service Tribunal comprising its Chairman and to Members partly heard the case but during its pendency one of the members ceased to be member. Consequently the appeal was heard and decided by the Chairman and one Member. Difference of opinion arose between them.
The learned Chairman took the view that the appeal was hit by the bar of limitation, res judicata and acquiescence. The learned Member allowed the appeal on merits, setting aside the orders impugned before the Tribunal and accepted the claim of the petitioner for pro forma promotion with effect from 13-12-1969. The learned Chairman relying on rule 24 of the Punjab Service Tribunal (Procedure) Rules, 1975 (hereinafter called the Rules), treated the judgment of the Member as judgment written by to Members and dismissed the appeal on 21-1.1-1993 in terms of the opinion of the senior amongst them, i.e. The Chairman.
4. Mr. K.M. A. Samdani learned counsel for the petitioner has taken up numerous grounds in the petition for challenging the decision of the Service Tribunal as expressed in the opinion of the Chairman. One of the grounds taken in the petition is that the impugned decision of the Tribunal cannot be treated as decision within the purview of rule 24 of the Rules and that the appeal should have been heard by the full Tribunal, in that after one of the Members ceased to be a Member, tie third Member had, in the meantime, been appointed.
5. Dr. A. Basit, learned counsel for the private respondents moved an application under Order XXXIII, Rules 5 and 6 of the Supreme Court Rules, 1980 praying therein to remit the case to the Tribunal to render a fresh decision within a stipulated period after due proceedings in Appeal No. 157/1992 with permission to the parties to lead evidence on all the issues particularly with regard to genuineness or otherwise of the representation dated 12-8-1974 alleged to be filed by the petitioner before the concerned departmental authorities. Mr. K.M.A. Samdani, however' made a statement at the Bar that he has no objection to the remittance of the case but recording of additional evidence would unnecessarily prolong the proceedings therefore in the interest of expeditious disposal he would not press consideration of the disputed representation alleged to be forged document. We are also of the view that leading of additional evidence before the Tribunal at this stage would unnecessarily prolong the proceedings.
6. In view of the above and with consent of both the learned counsel this petition is converted into appeal and allowed. The impugned decision is set aside and the case is remitted to the Punjab Service Tribunal with the direction that it shall be heard and disposed of by the full Tribunal on the available material in accordance with law within three months from the first date of hearing with notice to the concerned department.