1989 PLP 1271 (SCMR)

SHAFIUR RAHMAN, J.‑‑Leave to appeal was granted to the Federal Government under Article 212(3) of the Constitution to examine, whether in considering the Service Appeal filed by the respondent as within time the Tribunal has not taken a correct view of the law and ignored the provisions of sections 4 of the Service Tribunals Act, 1973 (hereinafter referred to as the Act). "The respondent was communicated an order, dated 15th July, 1979 couched in the following words:‑‑ "The services of Mr. Muhammad Azim, Assistant Superintendent of Police (on probation) allotted to the Government of N.‑W.F.P. vide Establishment Division's letter No.ll/1/77‑Police, dated the 31st January, 1977, are terminated with immediate effect in terms of para. 2 (vi) of Establishment Division's letter No.l/9/75‑T. 111, dated the 5th February, 1976, and under rule 4(3)(a) of the Government Servants (Efficiency and Discipline) Rules, 1973." He represented against it on 8‑9‑1979. The representation was addressed to the Secretary, Establishment Division, but a copy of it was also endorsed, as held by the Tribunal, to the President and Chief Martial Law Administrator. He received a letter, dated 22nd of October, 1979 from the Establishment Division signed by the Deputy Secretary, disposing of the representation, informing him as hereunder:‑‑ "I am directed to refer to your representation, dated 8‑9‑1979 on the subject noted above and to say that your representation has been considered in this Division but it is regretted that your request cannot be acceded to." He there upon filed an appeal before the Service Tribunal under section 4 of the Act on 26‑1‑

80. A question about its being not within time was raised whereupon an application for condonation of delay was filed on 11th of May, 1980. He gave the following reasons for seeking condonation of delay:‑‑ "That the petitioner/appellant had lodged his departmental appeal with the President of Pakistan in accordance with the rules governing his service which has not been decided so far by the said authority. However, an appeal sent to the Secretary, Establishment Division, Rawalpindi was disposed of by the Establishment Division under signatures of a Deputy Secretary on 22‑10‑1979 which was actually received by the petitioner/appellant in the second week of November, 1979 and the subsequent enquiry from the Establishment Division regarding the appeal lodged with the President of Pakistan remained unattended. So the petitioner/appellant filed his over‑noted service appeal on 24‑1‑1980. without losing any time That the petitioner/appellant has been bona fide pursuing his cause eversince the issue of the impugned order, dated 15‑7‑1979 but failed to obtain the relief from any quarter." This objection was disposed of by the Tribunal in para. 5 of its judgment in the following words:‑‑ "It appears that the Establishment Division itself rejected the representation without placing it before the President, who was the competent authority to pass the order thereon. As alleged by the appellant, a copy was endorsed to the President as well as in the written statement filed by the respondent this fact was not denied. On the other hand, it was stated that the contention in para. 21, was irrelevant. 'The representation to the President, having been sent on 8‑9‑1979 and no order having been passed by the President for over three months, the appellant filed the appeal within time on 26‑1‑1980. The preliminary objection about limitation has, in these circumstances, no substance." Mr. M.Bilal, the learned Deputy Attorney‑General contended before us that whatever view is taken on the facts stated by the respondent before the Tribunal and accepted by the Tribunal, his appeal was time‑barred. The departmental order which was challenged was, dated 15‑7‑1979. The representation against it was filed on 8‑9‑1979 i.e. beyond the period of thirty day! prescribed under section 22 of the Civil Servants Act. If this representation, dated 8‑9‑1979 remained legally undisposed of, then the respondent had to approach the Tribunal within 1211 days thereafter but he failed to observe the limitation even there. Even if the representation be taken to have been correctly disposed of on 28‑10‑1979, he had to fide the appeal before the Tribunal within thirty days of the disposal of the representation. The period available to the respondent was either thirty days from 28‑10‑1979 or 120 days from 8‑9‑1979. In either case he had filed a time‑barred appeal and the reason given in the application for condonation of delay was not at all available and the view taken by the Tribunal in the impugned judgment with regard to the period of limitation available to him is erroneor. Qazi Atiqur Rehman, Advocate, the learned counsel for the respondent on the other hand contended that as would appear from the representation filed by the respondent he did not receive a copy of the termination, order ever, directly. It was only when he was refused pay for July, 1979 that he came to know about the order and even then he had not the full awareness of it. This explained his filing the representation on 8th of September, 1979 i.e. beyond the period of thirty days. As regards the delay taking place from 8‑9‑1979, the learned counsel explained that the view taken by the Tribunal till then was that if representation against the order was pending then the period prescribed under section 4 of the Act got extended till the representation was disposed of. Following that view, the Tribunal considered the appeal within time and had no occasion to advert to the application for condonation of delay. It was only when the Supreme Court decision in the case of Haji Kadir Bux v. Province of Sind and another (1982 S C M R 582) was given on this subject, that its view was corrected by the Tribunal. The law relating to a right of appeal or representation is contained in section 22 of Civil Servants Act which is reproduced hereunder:‑‑ "

22. Right of appeal or representation.‑‑ (1) Where a right to prefer an appeal or apply for review in respect of any order relating to the terms and conditions of his service is provided to a civil servant under any rules applicable to him, such appeal or application shall; except as may be otherwise prescribed, be made within thirty days of the date of such order. (2) Where no provision for appeal or review exists under the rules in respect of any order or class of orders, a civil servant aggrieved by an` such order may, within thirty days of the communication to him of such order, make representation against it to the authority next above the authority which made the order: Provided that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade." The respondent addressed his representation to the Establishment s Secretary and not to the next higher officer, as is required under the law. However, as he had, according to the finding of the Tribunal endorsed it to the President, the next higher authority over the Establishment Secretary, it can be said brat there was substantial compliance with the requirement of the law. His filing the representation on 8‑9‑1979 when the order challenged was of 15‑7‑1979, can also be explained on the factual ground given by the respondent. As regards the time spent after 8‑9‑1979 there appears to be no explanation at all. The appeal filed before the Tribunal on 26‑1‑1980 was barred, being beyond 120 days of 8‑9‑1979 and in the alternative beyond thirty days of 28‑10‑1979. The Tribunal had been taking an incorrect view of the law is not a reason or sufficient reason for condonation of delay or even for explaining the delay. Besides, the diversity in the views of the Service Tribunals would clearly appear from the decision given by this Court in the case of Kadir Bux but in the two alternatives present in this appeal there was no divergence of views, in no case the limitation going beyond 120 days after filing of the appeal or representation or more than thirty days after the disposal of such appeal or representation The Tribunal has therefore taken incorrect view of the law in holding that an appeal filed on 26‑1‑1980 was within time against the final order, dated 28‑10‑1979 or after filing the representation on 8‑9‑1979. As regards the prayer for condonation of the delay two reasons have been given. The first being that appeal lodged with Secretary, Establishment Division stood disposed of on 22‑10‑1979 of which he received the information in second week of November, 1979. His appeal to the President remained undisposed of. This is no explanation for the delay. The other ground given is that C "the petitioner/appellant has been bona fide pursuing his cause ever since the issue of the impugned order, dated 15‑7‑1979 but failed to obtain the relief from any quarter". This recital gives no reason for the delay. It only explains what the respondent has been doing. There is nothing to suggest that he was misguided by the erroneous views of the Tribunal or that for any other reason he considered or could consider that his claim before the Tribunal was within time. In the circumstances, the appeal is accepted, the judgment of the Tribunal is set aside and the Service appeal filed by the respondent is dismissed as time‑barred. However, such dismissal will not bar on merits any subsequent, separate claim that the respondent may have in law with regard to his lien on any post in Federal Government because his appeal was not directly concerned with it. A.A./F‑93/S Appeal accepted.