P L D 1980 Supreme Court 38 (PLP)

ANWARLIL HAQ, C J.-The appellant Amanullah Khan was serving as Deputy Director in the Customs Department of the Federal Government, when he was dismissed from service on the 19th of May, 1970, under Martial Law Regulation No.

58. He challenged his dismissal by filing a writ petition in the Sind High Court, which was, however, dismissed on the ground of laches on the 29th of April, 1974. Thereafter he filed Civil Petition for Leave to Appeal bearing No. K-136 of 1974., which came up for hearing before a Division Bench of 'This Court on the 21st of December, 1974. The appellant appeared in person , before the Court and stated that he felt that it would be more profitable for him to seek his remedy before the Service Tribunal which bad been established under. the Service Tribunals Act, 1973, specially because under Article 212 of the Constitution all proceedings pending before a Court immediately before the establishment of the Service Tribunal had abated. This prayer was granted and the petition was dismissed as withdrawn. Having withdrawn his petition for special leave to appeal, the appellant then filed an appeal before the Service Tribunal at Islamabad on 14-10-1974, which was, however, dismissed by the Tribunal by its order dated the 12th of April, 1977, on the ground that by reason of the amendment of clause (2) of Article 212 of the Constitution the petition for leave to appeal filed by the appellant in the Supreme Court against the judgment of the High Court of Sind had been saved from abatement, and, accordingly, there was no cause to be agitated before the Tribunal in terms of section 6 of the Service Tribunals Act, 1973. The Tribunal held that the appeal before it, was therefore, incompetent. Leave to appeal was granted on the 10th of January, 1978, to examine the contention that the Service Tribunal was in error to holding that the case was governed by the amended Article 212 of the Constitution, as the Constitution (Fifth Amendment) Act, 1976, saving from abatement appeals pending in the Supreme Court, was promulgated on the 15th of September, 1976, whereas the appellant's petition for special leave to appeal had been dismissed by this Court as withdrawn as early as the 12th of April, 1974, that is, long before the promulgation of the Fifth Amendment ; and he had also filed his appeal before the Service Tribunal on the 14th of October, 1974, on which date the amended Article 212 was-not in force. Mr. Irshad Hassan Khan, the leaned Deputy Attorney-General appearing for the Government of Pakistan, submits that the contention raised by the appellant is correct, as the Fifth Amendment, by which a provision was inserted in Article 212 of the Constitution to save from abatement the proceedings pending in the Supreme Court in regard to service matters, was promulgated much after the appellant had withdrawn his petition for special leave to appeal in the Supreme Court. The learned Deputy Attorney General states that, in the circumstances, the appeal filed by the appellant before the Service Tribunal was, therefore, maintainable, and the Tribunal was in error in holding that it was not so. He, however, enters a caveat to the effect that the appeal before the Service Tribunal would not be a full appeal on law and facts, but confined to a consideration of the question whether the order of dismissal passed against the appellant was in the nature of coram non judice or the result of male fides, or otherwise bad for want of jurisdiction, in view of the blanket validation granted to acts done and actions taken under M. L. R. 58 by clause (4) of Article 270 of the Constitution. It is clear that the Service Tribunal was in error in holding that the appeal filed by the appellant before it was incompetent, as at the time the appellant .withdrew his petition for special leave to appeal pending before the Supreme Court, and filed his appeal before the Service Tribunal, clause (2) of Article 212 of the Constitution had not been ;mended so as to save from abatement proceedings pending' in the Supreme Court in respect of matter which fell within the jurisdiction of the Service Tribunal. The appellant was, therefore, right in withdrawing his petition for special leave to appeal with a view to seeking his remedy before the Service Tribunal. On the view of the matter, the order made by the Service Tribunal on the 12th of April, 1977, is set aside and the case is remitted for decision on merits to the Service Tribunal. As to the scope of the appeal before the Service Tribunal, we have] already dealt with this, matter at length in M. Yamin Qureshi v. Islamic Republic of Pakistan (PLD1980SC22) and for the reasons given therein hold that the appeal is competent on all questions of law and fact, and is not subject to the limitations suggested by the learned Deputy Attorney-General. This appeal is, accordingly, accepted in the terms indicated above, with costs. s. A. H. Appeal allowed.