1997 PLP 1590 (SCMR)

AJMAL MIAN, ACTG. C.J.‑‑‑This is a petition for leave to appeal against the judgment dated 15‑10‑1995 passed by the Federal Service Tribunal, Islamabad, hereinafter referred to as the Tribunal, upon Miscellaneous Petition No. 122 of 1995 in Appeal No. 516(R) of 1994, filed by the petitioner for review of its judgment dated 7‑6‑1995 passed in the aforesaid appeal, dismissing the same.

2. The brief facts are that the petitioner filed aforementioned appeal in the Tribunal against adverse remarks recorded in his A.C.R. for the period from 1‑1‑1990 to 12‑12‑1990, which was dismissed by the above judgment dated 7‑6‑1995. It seems that, instead of filing a petition for leave to appeal before this Court, the petitioner opted to file aforestated miscellaneous petition, which has been dismissed by the Tribunal through the impugned order. The petitioner has, therefore, filed the present petition for leave to appeal.

3. In support of the above petition Mr. Riazul Haq Sh., learned Advocate Supreme Court for the petitioner, has contended that the impugned order stands vitiated for the reasons firstly, that the Tribunal failed to announce the judgment within 30 days after service of the notice as required by sub‑rule (2) of rule 20, C.P.C. as amended by Civil Laws (Reforms) Act, 1994. Secondly, his submission in the alternative is that even if it is to be held that the aforesaid provision is not attracted for the reason that the Tribunal exercised appellate jurisdiction and not the original jurisdiction of a civil Court, the judgment was not delivered even within reasonable period as required by Rule 30 of Order XLI, C,P.C. Reliance has been placed by him on the judgment of this Court in the case of Syed Iftikhar‑ud‑Din Haider Gardezi and 9 others v. Central Bank of India Ltd., Lahore and 2 others (1996 SCMR 669). However, he is unable to point out that the Tribunal has the jurisdiction to review its earlier judgment dated 7‑6‑1995 in the absence of any provision in the Service Tribunals Act, 1973, hereinafter referred to as the Act.

4. Since the petitioner's aforementioned review was not competent (See the case of Muhammad Yousaf and another v. Government of Pakistan 1992 SCMR 1748), the present exercise is futile. However, we have examined the above contentions on merits as the same were urged with vehemence.

5. At the outset, we may observe that though in subsection (2) of section 5 of the Act, it has been provided that the Tribunal shall for the purpose of deciding any appeal, 'be deemed to be a Civil Court and shall have .the same powers as are vested in such Court under the Code of Civil Procedure, 1908, including the powers of‑ (a) enforcing the attendance of any person and examining him on oath; (b) compelling the production of documents; (c) issuing commission for the examination of witnesses and documents; but this is a deeming provision. It cannot be extended beyond the object for which it was enacted and by fiction the Tribunal was deemed to be a Civil Court. Since the Tribunal hears an appeal under the Act; the provisions of Order XX, Rule 1, C.P.C. cannot be invoked as the same relate to the disposal of the suits.

6. As regards the applicability of Order XLI, Rule 30, C.P.C., it may be advantageous to reproduce the same, which reads as under:‑‑ "

30. The Appellate Court, after hearing the parties or their pleaders and referring to any part of the proceedings, whether on appeal or in the Court from whose decree the appeal is preferred, to which reference may be considered necessary, shall pronounce judgment in open Court, either at once or on some future day of which notice shall be given to the parties or their pleaders." A perusal of the aforestated provision of C.P.C. indicates that it envisages that an Appellate Court, after hearing the parties or their pleaders and after referring to any part of the proceedings of the Court below, shall pronounce judgment in open Court, either at once or on some future day of which notice shall be given to the parties or their pleaders.

7. Though, in our view, C.P.C. as a whole is not strictly applicable to the appeals before the Tribunal but the Tribunal is bound to follow the basic norms of justice. According to Sh. Riazul Haq, since the Tribunal had heard the aforesaid miscellaneous petition on 24‑8‑1995 but the order was rendered on 15‑10‑1995, the same stood vitiated as it was not pronounced within reasonable time and, secondly, that no notice of the pronouncement of the order was given as contemplated by the aforementioned provision of .Order XLI, Rule 30, C.P.C. To reinforce the above submission, he has relied upon the case of Syed Iftikhar‑ud‑Din Haider Gardezi (supra), in which inter alia it has been held by this Court that the term "future day" occurring in Order XLI, Rule 30, C.P.C. could not mean that the judgment would be announced after unreasonable delay of eight months. It was further found that even on merits the judgment was not in accordance with the evidence on record. The above judgment has no application to the facts of the present case as in the instant case, the judgment was announced after about one month and 20 days and not after about eight months. In this regard, reference may also be made to the case of Muhammad Bakhsh and others v. The State (1989 SCMR 1473), in which this Court while declining a petition for leave to appeal, made the following observations:‑‑ "No doubt the‑judgment was announced one year after it had been reserved but we find that the learned Judge adverted to all the points as mentioned above. Nevertheless it is proper that once the arguments conclude and the judgment reserved, it has to be announced within reasonable period. We are sure that in future no unnecessary delay will take place in announcement of judgments."

8. It may be noticed that though in the above report the case involved was a criminal case which stood entirely on a different footing than a civil case, but in spite of that this Court administered a warning that in future no unnecessary delay would take place in announcement of judgment. The delay was not treated as a ground for vitiating the judgment.

9. Though we are inclined to hold that strictly speaking Rule 30 of Order XLI, C.P.C. is not applicable to appeals before the Tribunal, but it does not mean that the Tribunal is free to pronounce judgments at its sweet‑will whenever it likes even after considerable delay. The question, what period will be reasonable period for pronouncing judgment in a particular appeal before the Tribunal, will depend on the facts of each case and the legal points involved therein. No general principle of universal application can be laid down. The Tribunal and all other forums entrusted with the judicial or quasi judicial work are supposed to pronounce their judgments promptly and should act in a manner which should be just and fair. In the case in hand, the delay was for about one month and 20 days and, therefore, in our view, it is not such a long delay to which any exception can be taken.

10. As regards the second objection of the learned counsel for the petitions that no notice was issued for pronouncing the judgment as required by Rule 30 of Order XLI, C.P.C. to the petitioner, it may be stated that he has candidly conceded that the petitioner had received a copy of judgment through a covering letter of the Tribunal. No prejudice seems to have been caused to the petitioner. The non‑receipt of the notice before pronouncing the judgment may be relevant for, the purpose of computing the limitation period for filing a petition for leave before this Court. If a petitioner receives a copy of the judgment after the expiry of the limitation period in case in which no notice was given to him for announcing the judgment, he may be entitled to plead the above fact as a ground for condonation of delay. Admittedly the petitioner has filed the above petition within the limitation period and, therefore, no prejudice has been caused to him.

11. The upshot of the above discussion is that the petition has no merits. Leave is refused. M.B.A./A.5/S Petition dismissed.