P L D 2006 Supreme Court 249 (PLP)

SAIYED SAEED ASHHAD, J.

This petition for leave to appeal has been filed against the judgment of Federal Service Tribunal Islamabad (hereinafter referred to as the "Tribunal") dated 7-9-2005 in Appeal No.971(R) (CS)/2002.

2. The petitioner who was serving as Station Master in the service of Pakistan Railways was proceeded against for misconduct under the Removal from Service (Special Powers) Ordinance, 2000 (hereinafter referred to as the "Ordinance") and was awarded the penalty of compulsory retirement. He filed a departmental appeal on 26-3-2002 to the Chairman/Secretary Railways Board which was rejected on 23-10-2002 whereafter he filed appeal before the Tribunal on 30-11-2002. According to the Tribunal, the appeal filed by the petitioner was barred by 7 days and no application for condonation of delay was submitted by the petitioner along with the memo. of appeal. However, on 23-3-2003 he submitted an application for condonation of delay stating therein that he had received the order of rejection of his appeal dated 23-10-2002 on 7-11-002. The Tribunal was not satisfied with the explanation given by the petitioner and held the appeal to be barred by time. The Tribunal also observed that the petitioner after filing the appeal had accepted the pensionary benefits by way of (sic).

3. Feeling, aggrieved and dissatisfied with the judgment of the Tribunal the petitioner has filed this petition for leave to appeal.

4. We have heard the arguments of Ch. Sadiq Muhammad Warraich, Advocate Supreme Court and have perused the material on record.

5. The petitioner was compulsorily retired vide order dated 11-3-2002 under the provisions of the Ordinance. Section 10 of the Ordinance provides for filing of an appeal to the Tribunal by a person aggrieved by any final order under section 9 of the Ordinance within 30 days of the order. Proviso to section 10 of the Ordinance provides that where a representation preferred under section 9 of the Ordinance remains undecided and rto decision is received or communicated to the aggrieved person within a period of 60 days from the date of its submission to the competent authority then he may file an appeal to the Tribunal within 30 days of the expiry of aforesaid period of sixty days. In view of section 10 of the Ordinance, an aggrieved civil servant is required to file an appeal to the Tribunal within 90 days from the date of submission of his representation. Prior to promulgation of the Ordinance, the period for filing an appeal before the Tribunal was governed by section 4 of the Service Tribunals Act, 1973 (hereinafter referred to as the "Act"). Proviso (a) to subsection (1) of section 4 of the Act provided that where an aggrieved civil servant had preferred an appeal, application or representation to the competent departmental authority and the same remained undecided for a period of 90 days from the date of such appeal, application or representation then the appeal was to be filed within 30 days of the expiry of 90 days. According to the provisions of section 4 of the Act, the maximum period available to an aggrieved civil servant for filing an appeal to the Tribunal where his appeal, application or representation remained pending or was not decided by the competent authority was 120 days. This Court in cases of (i) Syed Firdos Ali v. Secretary, Establishment Division, Islamabad and 2 others 1997 SCMR 1160; (ii) Ghulam Sarwar Bhutto v. Chief Secretary, Government of Sindh and 2 others 2001 SCMR 1229 and (iii) Teekam Das M. Haseeja, Executive Engineer, WAPDA v. Chairman WAPDA and another 2002 SCMR 142 pronounced that after waiting for 90 days for decision on his appeal, application or representation the civil servant would have to file an appeal within 30 days and he was not required to wait indefinitely for decision of his appeal, application or representation. Applying the above principle for filing appeal before the Tribunal under section 10 of the Ordinance which prescribes a waiting period of 60 days for decision of the departmental appeal, the same will be required to be filed within 30 days of expiry of 60 days i.e. within a maximum period of 90 days from the date of submission of departmental appeal instead of 120 days. After promulgation of the Ordinance the period for filing an appeal before the Tribunal will be governed by section 10 of the Ordinance in view of the fact that the Ordinance has been given overriding effect over all the laws dealing with the subject matter which falls within the sphere of the Ordinance as is evidently clear from section 11 of the Ordinance, thus making the provisions of the Ordinance to prevail over the laws or a provision of law dealing with the subject-matter recovered by the Ordinance.

6. The right, methodology and the period of limitation for filing appeal before the Tribunal is regulated by section 4 of the Act. However, after promulgation of the Ordinance, resort cannot be had to Proviso (a) to subsection (1) of section 4 of the Act as it impliedly stands repealed by section 10 of the Ordinance on the principle of partial repeal of a statue on the ground that when provision of an earlier statute is inconsistent and in conflict with a provision of a latter statute and the two cannot be reconciled or harmonized so as to stand together then the provision of the earlier statute will give way to similar provision in the latter statute on the doctrine of implied repeal. As the provisions of both proviso (a) to subsection (1) of' section 4 of the Act and section 10 of the Ordinance are inconsistent or in conflict with one another and if both are allowed to remain in the field then it is bound to result in ambiguity and inconsistency relative to determination of the period within which the departmental appellate authority will be required to decide the appeal of an aggrieved civil servant or the period for which he is to wait for the decision of the appellate authority as well as the period available to civil servant, after submission of his departmental appeal, for approaching the Tribunal because proviso (a) to subsection (1) of section 4 of the Act provides 90 days waiting period and a maximum period of 120 days from the date of his appeal, application, representation for filing appeal before the Tribunal, while the aforesaid periods have been curtailed to 60 days and 90 days respectively by section 10 of the Ordinance. Such discrepancy or conflict is bound to create uncertainty amongst the aggrieved civil servants for deciding which of the two provisions would have to be relief upon for determining the period of limitation as well as create problem for the Tribunal to decide about the maintainability of the appeal before it relative to the limitation.

7. The necessary conditions of implied repeal of an earlier statute or a provision thereof by a later statute are that; firstly, the two statutes cannot stand or co-exist together; secondly, to stand side by side, they will lead to absurd consequences; and thirdly, when the entire subject matter of the earlier statute or a provision thereof is taken away by the later statute are available in the case in hand and proviso (a) to subsection (1) of section 4 of the Act would be deemed to have been impliedly repealed by section 10 of the Ordinance in respect of appeals to be filed before the Tribunal under the Ordinance. In. support of the above observation reliance is placed on principles laid down by this Court relative to implied repeal in the cases of (i) Mumtaz Ali Khan Rajban and another v. Federation of Pakistan and others PLD 2001 SC 169; (ii) The Punjab Province v. Malik Khizar Hayat Khan Tiwana PLD 1956 FC 200 and (iii) Saiyyid Abul Ala Maudoodi and others v. The Government of West Pakistan and others PLD 1964 SC 673.

8. This Court in the case of Neimat Ali Goraya and 7 others v. Jaffar Abbas, Inspector/Sargeant Traffic through S.P. Traffic and others 1996 SCMR 826 pronounced that where a general Law as well as special Law was applicable to a particular case then to the extent of application of special law, provisions of general Law would stand displaced. A similar observation was made by this Court in the case of Dur Muhammad v. Abdul Sattar PLD 2003 SC 828 reiterating that special provisions would prevail over general provisions and the same was to be applied strictly. The above observation was made while dealing with the special and general provisions of a statute and by ways of analogy this principle can be applied to hold that to the provision(s) of the special statute will prevail over the .provisions(s) of a general statute dealing with the same subject-matter.

9. It may also be pointed out that the Ordinance is a special law which has been promulgated in public interest and for good governance to provide for measures, inter alia, dismissal, removal etc. of certain persons from Government service and corporation service and to provide speedy disposal of cases and further that the provisions of the Ordinance have been given overriding effect notwithstanding anything to the contrary contained in any other law for the time being in force dealing with subject matter falling within the scope of Ordinance. In this view of the matter also, the provisions of section 10 of the Ordinance will have overriding effect over proviso (a) to subsection (1.) of section 4 of the Act, which stands impliedly repealed.

10. It was thus incumbent for the petitioner to have approached the Tribunal within 90 days from 26-3-2002, the date on which he filed/submitted his representation. The petitioner kept waiting for decision of his representation, which, was decided on 23-10-2002 by which time the period of 90 days provided in section 10 of the Ordinance G had already expired. The appeal of the petitioner before the Service Tribunal was clearly time-barred. The contention advanced by the petitioner for condonation of delay even if taken to be true would not be of any assistance to him in explaining and over-coming the delay in filing the appeal before the Tribunal.

11. Apart from above, it may be noted that the petitioner before filing his appeal before the Tribunal had given an undertaking by way of an affidavit dated 16-11-2002 that he would not file an appeal if his pensionary befits were given to him. In pursuance of above his pensionary benefits were paid to him on 2-12-2002. After accepting the pensionary benefits, the petitioner would have no right to assail the order H of compulsorily retirement as he would be deemed to have waived his right to assail the order of his compulsory retirement as he acquiesced with the same.

12. For the foregoing facts, reasons and discussions this petition is found to be without any substance and is accordingly dismissed. Leave to appeal is refused. S.A.K./T-4/S?????????????????????????????????????????????????????????????????????????????????????? Leave refused.