MUHAMMAD MUSHTAQ AKBAR ABBASI vs HOUSE BUILDING FINANCE
This petition for leave to appeal arises from a service dispute involving the compulsory retirement of the petitioner, an officer of the House Building Finance Corporation, on charges of misconduct and corruption. After the petitioner's initial writ petition in the Lahore High Court was disposed of due to lack of jurisdiction following amendments to service laws, he filed an appeal before the Federal Service Tribunal. The Tribunal dismissed the appeal as not maintainable, citing the petitioner's failure to exhaust departmental remedies. The petitioner contends that the penalty of compulsory retirement was not provided for in the relevant regulations and argues that his appeal before the Tribunal was maintainable under Section 6 of the Service Tribunals Act 1973, asserting that his prior writ petition abated upon the introduction of Section 2-A of the same Act, thereby granting him a 90-day window to approach the Tribunal. The Supreme Court granted leave to consider whether the appeal was maintainable under the statutory abatement provisions, notwithstanding the failure to file a departmental appeal.
- Does the failure to file a departmental appeal render an appeal before the Federal Service Tribunal non-maintainable?
- Does the introduction of Section 2-A in the Service Tribunals Act 1973 cause the abatement of pending writ petitions in the High Court?
- Can a party whose writ petition has abated due to the Service Tribunals Act 1973 file an appeal before the Service Tribunal within 90 days of the abatement?
- Section 6, Service Tribunals Act 1973
- Section 2-A, Service Tribunals Act 1973
ORDER
SH. IJAZ NISAR, J. - Leave is sought against the judgment, dated 24-8-1998, passed by the Federal Service Tribunal, Islamabad, in Appeal No. 700(R) of 1997.
2. The facts, in brief, are that Muhammad Mushtaq Akbar Abbasi, petitioner herein, joined the respondent-corporation as Grade-II Officer in the year 1973. On 4-3-1996, while serving as Assistant Manager, Client Services in Islamabad Zonal Office of the H.B.F.C. He was served with a charge- sheet on the allegations that he got 35 cases approved on bogus income certificates and in one case disbursed the money where the house had already been constructed and, therefore, he was guilty of misconduct and corruption. He submitted a reply to the charge-sheet, which was not found satisfactory, therefore, a departmental inquiry was ordered. By order dated 28-4-1997, major penalty of compulsory retirement from service was imposed upon the petitioner.
3. Feeling aggrieved, the petitioner filed W.P. No. 980 of 1997 in the Lahore High Court. Rawalpindi Bench, which was ultimately disposed of on 16-9-1997 with the remarks that the High Court had no jurisdiction to proceed in the matter in view of the latest amendment in the Service Tribunals Act.
Thereafter, he filed an appeal before the Federal Service Tribunal on 22-9-1997 alongwith an application for condonation of delay, which was dismissed on the ground of maintainability. The petitioner has not filed the departmental appeal before approaching it. Hence, this petition.
4. It is, inter alia, contended that the petitioner did not file appeal before the departmental authority because the penalty awarded to him viz. The compulsory retirement was not provided in the House Building Finance Corporation Regulation and further that the Tribunal failed to appreciate the effect of Section 6 of the Service Tribunals Act, which provided for abatement of suits, appeals or applications and proviso to the section providing that any party to such suit, appeal or application may within 90 days of the establishment of the appropriate Tribunal, prefer an appeal, to it in respect of any such matter which was in issue in such suit, appeal or application. Since the writ petition tiled by the petitioner had abated in view of the introduction of Section 2-A in the Service Tribunals Act, 1973, the appeal tiled by him before the Tribunal on 22-9-1997 was within the and could not have been dismissed.
5. Leave is granted to consider the above proposition. Since this is a service matter, office is directed to fix the appeal for hearing at an early date.