P L D 1990 Supreme Court 951 (PLP)

(i ) that the respondent could not have filed the service appeal before the Tribunal as his resignation was accepted in August, 1983, whereas subsection 3 of section 10 of the Act was incorporated by Ordinance No. LIII of 1984 with effect from 15‑11‑1984 which was not retrospective; (ii) that the respondent's appeal was time‑barred hopelessly; and (iii) that even on merits the respondent had no case as after having requested for conversion of resignation into termination and after having received considerable amount as financial benefits it was not open to the respondent to have re‑agitated the question. On the other hand, Mr. Muhammad Bila1, learned A.S.C. appearing for the respondent, has urged as follows:‑‑ (i) that on the day when the appeal was filed the respondent could not have approached any other forum in view of the fact that subsection (3) of section 10 of the Act was holding the field; (ii) that the very fact that the Chairman did not dismiss the respondent's ????????? appeal implies that the delay, if any, was condoned by the Chairman; and (iii) that since the resignation was obtained under duress and coercion, the resignation and the other subsequent action taken thereon were void and, therefore, the Tribunal rightly set aside.

4. Adverting to the above first submission of the learned counsel for the parties, namely, whether the Tribunal could entertain the appeal or not on 10‑5‑1986, it may be observed that Raja Muhammad Akram has referred to the following cases:‑‑ (i) Muhammad Afzal v. Board of Revenue, West Pakistan and another PLD 1967 SC 314. (ii) Nabi Ahmad and another v. Home Secretary, Government of West Pakistan, Lahore and 4 others P L D 1969 SC 599. (iii) Federation of Pakistan v. Muhammad Siddiq PLD 1981 SC 249. (iv) Pakistan International Airlines Corporation v. Messrs Pak Saaf Dry Cleaners P L D 1981 SC 553. (v) Idrees Ahmad and others v. Harz Fida Ahmad Khan and 4 others PLD 1985 SC 376, and (vi) The Colonial Sugar Refining Company Limited v. Irving 1905 A.C. 369.

5. It will suffice to observe that the case listed hereinabove at S. No. (iii) of this Court, namely, Federation of Pakistan v. Muhammad Siddiq PLD 1981 249 SC has direct relevance as in the above judgment this Court had construed similar provision which is in issue relating to WAPDA. It may be advantageous to quote the following observations from the above judgment:‑‑ "As noted in the opening part of this judgment, the appeals Nos. 49 and 50 fall into a separate category. Suits of WAPDA employees (respondents) were filed on 31st of June, 1974. They were decreed on 30th of July, 1975. The WAPDA filed appeals before the District Courts which were withdrawn on 3rd February, 1976. The Water and Power Development Authority (Amendment) Ordinance, 1975, came into force on 30th of September, 1975. It was declared that the service under the WAPDA would be the service of Pakistan (excepting few exclusions) for the purpose of the Act. The service appeals filed by the WAPDA were dismissed by the Service Tribunal as incompetent on the assumption that the Amendment Ordinance having come into force on 30th September 1975, the appeals filed before the Tribunal could not be entertained because the suits or appeals before the Civil Courts out of which they arose were not pending at the time of the passing of the Act. In such like situations the underlying principle appears to be that when a statute is extended to a territory or class of persons who were originally not covered by it, regarding those territories and persons when a new statute is enacted `by reference' to the original statute, the date of commencement given in the original statute is synchronised with the date on which the said statute is extended to the new territories and/or persons. In these cases, the original statute i.e. the Act was enacted on 29th of September, 1973. The Water and Power Development Authority (Amendment) Ordinance, 1975 whereby the Act was extended to the WAPDA employees came into force on 30th of September, 1975. Therefore, the Act would apply mutatis mutandis to the WAPDA employees on and after 30th of September, 1975. The civil appeals by the WAPDA fled before the District Court against the decrees passed by the learned trial Judge were pending before the District Court on 30th of September, 1975. Therefore, they abated on the said date. That being so, the WAPDA had the right to file appeals before the Tribunal under the proviso to section 6 of the Act. Of course, the said provision, on account of natural barrier of time would apply mutatis mutandis, meaning thereby that the period of limitation would commence from the date of the abatement; namely, 30th of September, 1975. The view of the Tribunal that the appeals were not competent because the matter was not pending before the original Courts before the 29th of September 1973, was ex facie erroneous. The relevant date in these cases was the 30th of September, 1975 when the Act was extended to the employees of the WAPDA. These two appeals are accordingly allowed arid the cases are remanded to the Service Tribunal for decision on merits."

6. A perusal of the above‑quoted passage from the above judgment indicates that similar submission which has been now made by Raja Muhammad Akram was repelled and it was held that after the incorporation of similar provision by the West Pakistan Water and Power Development Authority (Amendment) Ordinance (XVI of 1975) which came into force on 30‑9‑1975, civil appeals before District Courts relating to WAPDA employees abated in view of section 6 of the Service Tribunal Act, 1973 though the impugned orders were passed prior to 30‑9-1975.? In this regard reference may also be made to clause 2 of Article 212 of the Constitution, which reads as follows:‑‑ "(2) Notwithstanding anything hereinbefore contained, where any Administrative Court of Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal other than an appeal pending before the Supreme Court shall abate on such establishment; Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, Majlis‑e‑Shoora (Parliament) by law extends the provisions to such a Court or Tribunal." The effect of the above quoted sub‑clause (2) of above Article and section 6 of the Service Tribunal Act. 1973, was that upon the establishment of the Tribunal, no other Court had jurisdiction in the service matters covered by the aforesaid Service Tribunal Act.

7. At this juncture, it may be pertinent to reproduce subsections (2), (3) and (4) which were incorporated in the Act by Ordinance No. LIII of 1984, which read as follows:‑‑ "

2. Amendment of section 10..Act XIX of 1956.‑‑In the Pakistan International Airlines Corporation Act, 1956 (XIX of 1956), section 10 shall be renumbered as subsection (1) of that section and, after subsection (1) renumbered as aforesaid, the following new subsections shall be added, namely:‑‑ (2)????? Notwithstanding anything contained in subsection (1) or any law, settlement or award for the time being in force, or any rules or regulations framed under this Act, or any rules, regulations, orders or instructions issued by the Corporation, or in the terms and conditions of service of any person employed by, or serving under, the Corporation, the Corporation may at any time retire or remove from its service any person without assigning any reason, after giving him an opportunity of being heard and not less than ninety days' notice or pay for the .period by which such notice falls short of ninety days; and, subject to subsection (3), no such order of retirement or removal shall be called in question before any Court or tribunal or other authority. (3)? Service under the Corporation is hereby declared to be service of Pakistan, and every person holding a post under the Corporation, not being a person on deputation to the Corporation, shall be deemed to be a civil servant for the purposes of the Service Tribunals Act,‑1973 (LXX of 1973). (4) Nothing contained in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance 1968 (W.P. Ordinance No.VI of 1968), or the Industrial Relations Ordinance, 1969 (XXIII of 1969), shall apply to or in relation to the Corporation or any of the officers, advisers and employees appointed by it."

8. In our view, the effect of declaring service under the Corporation as the service of Pakistan and by deeming provision making an employee of the Corporation a civil servant for the purposes of the Service Tribunals Act, 1973, and in view of clause 2 of Article 212 of the Constitution, no other Court could entertain respondent's above appeal on the day when it was filed on 10‑5‑1986 as the above provisions came into force in November, 1984. The remaining above‑cited cases are not applicable to the present case, which inter alia laid down that the right of appeal is a creation of statute, it cannot be taken away nor it can be claimed in the absence of express provision and that a person is entitled to the remedies in the form of appeal etc. which were available to him when he initiated legal proceedings in the absence of a contrary intention expressly or by necessary intendment in the relevant statute. In the instant case, in view of the above constitutional and statutory provisions, the above principles of law cannot be pressed into service.

9. Adverting to the question of limitation, it may be recapitulated that the respondent's resignation was accepted on 15‑8‑1983 and upon his request the resignation was converted into termination on 28‑3‑1984 and, therefore, the alleged cause of action, if any, accrued to the respondent in 1984. The respondent after having received the monetary benefits on account of converting his resignation into termination could not have filed the departmental appeal on 12‑3‑1986 i.e. after the expiry of about two years as Regulation 87 of the Pakistan International Airlines Corporation Rules, 1985, provided 30 days period of limitation. It has been concluded by the Tribunal that it could be presumed that the delay was condoned by the appellate authority. The reliance has been placed on the case of Muhammad Yousaf v. Member, Central Board of Revenue (1970 SCMR 170). In our view, the above conclusion is not warranted by law. The rejection of the aforesaid belated appeal of the respondent through appellants' letter dated 6‑4‑1986 cannot be said to be a rejection of the appeal on merits. It does not indicate that the appellate authority had noticed the question of limitation or had applied its mind to the question of limitation. The case relied upon by the Tribunal has no application. It may be advantageous to quote hereinbelow relevant observations, which read as follows

‑ '??It is correct that the appeal was barred by time but it cannot be said that the learned Collector was not conscious of this fact. The question of limitation was specifically brought to his notice and in spite of that he allowed the appeal of the said respondents. In these circumstances the view of the High Court that the learned Collector, by deciding the appeal on merits, has impliedly condoned the delay appears to be quite correct. The decision of this Court in the case of Ahsan Ali and others v. District Judge and others (PLD 1969 SC 167), lays down that the authority concerned should be conscious of the question of limitation before deciding the proceedings pending before it."

10. In terms of the above‑quoted observation, it cannot be held that the appellants Chairman was conscious of the question of limitation while turning down the above belated respondent's appeal. The above ‑case, therefore, has no C application. We are, therefore, inclined to hold that since the appeal before the department was time‑barred, the appeal before the Tribunal was also incompetent on that account.

11. As regards the merits of the case, we are of the view that the respondent after having made a request for treating his resignation as termination and after having received financial benefits in the form of more than Rupees one lac plus the benefit of pension etc., it was not open to him to re‑agitate the question that his resignation was obtained by the appellants under duress and coercion. The Tribunal has overlooked the above important aspect which goes to the root of the matter, and has not said a single word in the lengthy judgment under appeal. We are, therefore, of the view that even on merits the respondent's service appeal merited dismissal. We, therefore, allow the above appeal and set aside the Tribunal's judgment. However, there will be no order as to costs. M.B.A./C‑62/S??????????????????????? Appeal allowed.