MUHAMMAD MUSHTAQ AKBAR ABBASI vs HOUSE BUILDING FINANCE
This matter arises from a petition for leave to appeal directed against the judgment of the Federal Service Tribunal, Islamabad, which dismissed the petitioner's service appeal on the ground of maintainability due to the failure to file a departmental appeal prior to approaching the Tribunal. The core legal question concerns whether the service appeal was maintainable without exhausting departmental remedies and the effect of statutory provisions regarding the abatement of proceedings and limitation periods upon the introduction of amendments to the service laws. The Supreme Court granted leave to consider whether the penalty imposed was provided under the relevant regulations and whether the appeal before the Tribunal was within time in view of the abatement provisions and statutory amendments. The court held that leave should be granted to examine these propositions, noting the contentions regarding the applicability of section 6 of the Service Tribunals Act and the lack of a departmental appeal.
- Whether an appeal before the Federal Service Tribunal is maintainable without first filing a departmental appeal?
- What is the effect of section 6 of the Service Tribunals Act 1973 regarding the abatement of pending writ petitions and the limitation period for filing appeals before the Tribunal?
- Does the compulsory retirement of an employee constitute a penalty provided under the House Building Finance Corporation Regulations?
- 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 change-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 condo-nation 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 filed by the petitioner had abated in view of the introduction of section 2-A in the Service Tribunals Act, 1973, the appeal filed by him before the Tribunal on 22-9-1997 was within time 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.