2001 PLP (C (PLC(CS))

MUHAMMAD BASHIR JAHANGIRI, J.

The petitioner seeks leave to appeal, against the order of the learned Federal Service Tribunal (the Tribunal) dated 23-6-1999 dismissing his service appeal on the ground of limitation.

2. Brief facts of the case are that the petitioner was appointed as Inspector in the respondent-Organisation established under the Abandoned Properties (Management) Act (XX of 1975) somewhere in the year 1982. The petitioner was entrusted the job of Deputy Director in the respondent Organisation in the officiating capacity by the competent authority vide order dated 11-1-1988, purportedly on account of his best performance of duties. In the year 1989, on the arrival of the then Secretary/Registrar of the Board of Trustees, the petitioner was transferred on 29-9-1990 as Assistant Accountant in the Board wherefrom the petitioner was again transferred in the Organisation as Inspector. In the meantime, the petitioner was charge- sheeted to which he submitted his reply. The Inquiry Committee after due deliberations vide its report dated 20-8-1992 recorded a finding that all the four charges as framed had been proved against the petitioner. Consequently a show-cause notice was issued to him on 16-9-1992 by respondent No. l to which too the petitioner submitted a reply. Ultimately major penalty of dismissal from service with immediate effect was imposed upon the petitioner vide order dated 27-12-1992. In the meantime another inquiry was initiated against the petitioner and after completion of the proceedings, the competent authority imposed the major penalty of dismissal of the petitioner from service as well. The petitioner appealed to the then Prime Minister of Pakistan being an appellate authority but it was rejected. The petitioner, feeling aggrieved, challenged the two impugned orders in Writ Petition No.339 of 1993 in the learned Lahore High Court which stood abated and was dismissed because of insertion of section 2-A in the Service Tribunals Act, 1974. The petitioner assailed the orders dated 27-12-1992 and 15-2-1993 before the Tribunal. The petitioner had also filed an application for condonation of delay, giving reasons for approaching the learned Tribunal but that was decided against him by the Tribunal and the condonation of delay was declined. In this context, the learned Tribunal observed that after insertion of section 2-A in the Service Tribunals Act, (ibid) with effect from 10-6-1997, the, only competent forum available in service matter was the Federal Service Tribunal and, therefore, the petitioner was unnecessarily pursuing his remedy before an incompetent forum even after 10-6-1997 and failed to approach the Tribunal within the period of limitation which rendered the appeal incompetent and not maintainable being barred by time.

3. Hafiz S.A. Rehman, learned Senior Advocate Supreme Court in support of this appeal, contented that undoubtedly as a result of insertion of section 2-A in the Act on 10-6-1997, the employees of Corporations/Organisations being run and controlled by the Federal Government, were declared to be civil servants for the purpose of availing remedy of appeal before the Tribunal provided under the .Act but it is also an admitted position that until decision of this Court in the cases of Muhammad Afzal v. K:E.S.C. (1999 SCMR 92) and Aftab Ahmed v. K.E.S:C. (1999 SCMR 197), the view prevailing with the Tribunal was that the provisions of section 2-A of the Act were retrospective and as such a person who has been dismissed from service prior to insertion of section 2-A in the Act, was not entitled to avail, of the remedy of appeal provided under the Act: According to the learned counsel for the petitioner, the law in such cases was fluid until it was pronounced by this Court as reported in January and February parts of the 2000 Supreme Court Monthly Review (SCMR), therefore, the learned Tribunal should have taken a lenient view while considering application for condonation of delay in the appeals filed before the learned Tribunal. He has substantially placed reliance on an unreported judgment of this Court in Civil Appeals Nos.882 to 890 of 1999 which arose out of Civil Petitions Nos. 1401, 1458 to 1465 of 1998 reported as Tawab Khan and 8 others v. Pakistan Telecommunication Company Limited and others 2000 SCMR 179(authored by one of us, namely, Muhammad Bashir Jehangiri, J.). In the C.P. giving rise to the consolidated judgment in Civil Appeals Nos.882 to 890 of 1999 (supra), leave to appeal was granted to consider whether the learned Federal Service Tribunal (the, Tribunal), was not right in dismissing the appeal as barred by time, after insertion of section 2-A in the Service Tribunals Act, 1973, on the basis of the authorities in the cases: (i) Muhammad Afzal v. Karachi Electric Supply Corporation and 2 others (1999 SCMR 92), (ii) Syed Aftab Ahmad and others v. K. E. S. C. and others (1999 SCMR 97).and Muhammad Khalil v. Chairman, C.D.A. and 2 others (C.P. No.1700 of 1998, decided on 18-5-1999) and Ghulam Sarwar Bhutto v. Chief Secretary to Government of Sindh and others (Civil Petition No.604-K of 1998, decided on 5-4-1999 (2000 SCMR 104).

4. In the afore-mentioned appeals, it was held that the two cases of Muhammad Afzal and Syed Aftab Ahmad and others (supra) were reported in January and February parts of the Supreme Court Monthly Review (SCMR) and that in the above appeals, the final order declaring the proceedings to have abated, was passed by the Labour Appellate Tribunal on 25-5-1998. The appellants preferred appeals before the learned Tribunal on 8-8-1998 after about two months and twelve days. The appeal before the learned Tribunal, in these circumstances, was held to be governed under section 6 of the Act which provided abatement of pending proceedings. As the law in the cases was unsettled the decisions were pronounced by this Court, which was reported in January and February parts of the 2000 SCMR in view of the learned four Members Bench of this Court, the learned Tribunal should have taken a lenient view while considering the application for condonation of delay in appeal filed before the learned Tribunal. Unreported judgment in Civil Appeal No.882 of 1999 (supra) is on all fours to the case before us.

5. We accordingly convert this titled petition into an appeal, accept it, set aside the impugned judgment and remand the case to the learned Tribunal with the directions that the application for condonation of delay be considered afresh in the light of the observations made above. The learned Tribunal shall simultaneously also decide the appeal on merits so as to obviate the eventuality of remand of the case. Costs to follow the event. Q.M.H./M.A.K./A-103/S Appeal allowed.