1976 PLP [C (PLC(CS))

(b) N. W. F. P. Service Tribunals Act (I of 1974)‑‑ ‑‑ S. 8 read with Limitation Act (IX of 1908), S. 5‑Limitation Condonatron ‑ Delay of every day must be explained ‑ Sufficient cause for condonation ‑Prayer based on reasoning that law could not sufficiently be understood as to jurisdiction and nature of relief Appellant seeking redress in connection with terms and conditions of service ‑ Ground in circumstances, held, not sufficient cause to invoke provisions of S. 5 of Limitation Act, 1908‑Mere ignorance of law or bona fide mistake of law‑Does not provide sufficient cause which must be determined in circumstances of each particular case. Mr. Muhammad Shuaib joined service on the 17th of April 1954 as Field Assistant while Mr. Shafiullah (respondent No. 4 in this appeal) seems to have joined service in the year 1954 as Seed Examiner, and Mr. Muhammad Karim (respondent No. 3) entered the service on 26th of October 1959 as Inspector. The posts of Field Assistant and Seed Examiner were converted into Sericulture Inspectors with effect from 1st of April 1958. In two confidential reports given to Mr. Muhammad Shuaib in 1969 and 1970, adverse remarks were recorded against him by his immediate superior. These reports were subsequently challenged by him in departmental appeals and representations but with no success. The appeals and representations so submitted by him to the departmental authorities were substantially rejected. Thereupon, he instituted a civil suit in the Court of Senior Civil Judge, Peshawar, on the 23rd of December 1972. The suit seems to have been contested by the Government. It was, however, dismissed on the 4th of September 1973. Feeling aggrieved by the dismissal of his suit, Mr. Muhammad Shuaib preferred an appeal in the District Court, Peshawar. It so appears that on the 13th of November 1973, Mr. Muhammad Karim was temporarily promoted to the rank of Assistant Sericulture Development Officer in supersession of Mr. Muhammad Shuaib while Mr. Shafiullah .vas placed senior to him on the tentative seniority list. This order was challenged by Mr. Muhammad Shuaib by means of a writ petition filed by him in Peshawar High Court, Peshawar. The writ petition, however, could not succeed and was summarily dismissed on 17th of January 1974.

2. The civil appeal filed by Mr. Muhammad Shusib in the District Court came up for hearing before the District Judge on 22nd March 1974 when the District Judge passed an order of abatement in respect of the appeal observing that in view of section 8 of the North‑West Frontier Province Service Tribunals Ordinance, 1973 (N.‑W.F.P. Ordinance No. 1 of 1974) (hereinafter referred to as the Ordinance), the only forum available to the appellant was the Service Tribunal. On the 30th of May 1974, Mr. Muhammad Shuaib filed the present appeal before this Tribunal challenging the correctness of the adverse remarks recorded against him for the years 1969 and 1970 and for the subsequent years 1971, 1972 and 1973, as well as calling in question the validity of the order promoting Mr. Muhammad Karim to the rank of Assistant Sericulture Development Officer in supersession of the appellant and placing Mr. Shafiullah senior to him on the tentative seniority list. Alongwith the appeal, the appellant submitted an application for the condonation of delay in preferring the present appeal alleging that ran account of the nature of the relief, involved, the change of law pending litigation and the intricacy involved as to the jurisdiction and other surrounding circumstances, the appeal could not be filed within the prescribed period of limitation.

3. There can be two formidable objections against the entertainment of this appeal by the Service Tribunal. The first of these objections relates to the jurisdiction of the Service Tribunal, while the other refers to the condo nation of delay prayed for by the appellant.

4. As regards the objection with regard to the jurisdiction of this Tribunal in the matter involved in this appeal, it may be stated that the recording of the adverse remarks, and their expunction, rests with the departmental authorities and not with the Service Tribunal, The appellant having failed in his attempt to get the adverse remarks expunged by the final departmental authority, could not now achieve the desired objective from this Tribunal which has nothing to do with the recording of the adverse remarks and their expunction. Again, it may also be pointed out that no appeal lies to the Service Tribunal against an order or decision 4 of a departmental authority determining the fitness or otherwise of a person to be appointed to hold a particular post or to be promoted to a higher, post or grade. This is amply clear from clause (b) (i) of section 4 of the North‑West Frontier Province Service Tribunals Act, 1974. Needless to say that if adverse remarks recorded against the appellant are allowed to stand, there can be nothing unreasonable with regard to the decision promoting Mr. Muhammad Karim to the rank of Assistant Sericulture Development Officer in supersession of the appellant. In these circumstances, I can feel no hesitation in holding that this Tribunal is not possessed of jurisdiction to grant relief to the appellant.

5. Coming now to the second objection, it may be stated at the very outset that' the Governor of the North‑West Frontier Province, on the 8th of January 1974, was pleased to make and promulgate the Ordinance which was intended to provide for the establishment of Administrative Tribunals, to be called Service Tribunals, to exercise exclusive jurisdiction in respect of the matters relating to the terms and conditions of service of civil servants of the Province and for matters connected therewith or ancillary thereto. It was laid down in section 1 (2) thereof that the Ordinance shall come into force en such date as the Government tray by notification in the official Gazette appoint in this behalf, whereas section 8 laid down that save as otherwise provided in section 10, all suits, appeals or applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the commencement of the Ordinance shall abate forthwith: Provided that any civil servant who is a party to such a suit, appeal or application may, within ninety dais of the commencement of the Ordinance, prefer an appeal to the appropriate Tribunal in respect of any such matter which is in issue in such suit, appeal or application. The Ordinance came into force on 23rd February 1974 vide Government of North‑West Frontier Province Gazette Notification No. SOS III (S&GAD) 1‑79/73, dated the 23rd February 1974, when the appeal filed by Mr. Muhammad Shuaib was still pending in the Court of District Judge Peshawar. It follows, therefore, that the last date for the institution of the present appeal before this Tribunal was the 23rd of May 1974. The appeal was, however, filed on 30th of May 1974 i.e., seven days after the period of limitation provided for the institution of the appeal.

6. It is not denied that the provisions of section 5 of the Limitation Act have been made applicable to the appeals before the Service Tribunals, by virtue of section 9 of the Ordinance. However, under this section, the Tribunal cannot extend time unless it is satisfied that the appellant had "sufficient cause" for not preferring the appeal in time. To entitle a person to succeed on an application to excuse delay in presenting an appeal, he must satisfy the Court or the Tribunal, as the case may be, that he had sufficient cause for not presenting the appeal within the prescribed period. It is settled law that in order to have the benefit of section 5 of the Limitation Act, it is the duty of the appellant to explain delay for every day that elapses beyond the period allowed by the law for the time being in force for filing an appeal. In the instant case, the extension is sought on the ground of the nature of the reliefs involved, the change of law pending litigation and the intricacy involved as to the jurisdiction and other surrounding circumstance, as set out in the application for condonation of delay.

7. I do not at all feel impressed by this submission. The Ordinance was published in the Gazette (Extraordinary) of the North‑West Frontier Province of 8th January 1974, section 4 whereof was clear on the point that on the enforcement of the Ordinance, the only forum available to the civil servants to seek redress in respect of the terms and conditions of their service and some of the disciplinary matters would be the Service 'tribunal, while section 8 in very plain language lays down that save as otherwise provided in section 10, all suits, appeals are applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the commencement of the Ordinance shall abate forthwith: Provided that any civil servant who is a party to such a suit, appeal or application may, within ninety days of the commencement of the Ordinance, prefer an appeal to the appropriate Tribunal in respect of any such matter which is in the issue in such suit, appeal or application. The Ordinance, as indicated already, came into force on 23rd February 1974. It will thus be seen that the Ordinance was absolutely clear as to the jurisdiction of the Service Tribunals in respect of the matters relating to the terms and conditions of the service of civil servants and some of the disciplinary matters mentioned therein, and there could be absolutely no ambiguity about it. In the circumstances, there could be no intricacy involved as to the jurisdiction of the Service Tribunal. It has not been explained as to how the nature of reliefs involved and the change of law pending litigation could justify this Tribunal to extend the period of limitation. There can be no doubt that as to what constitutes "sufficient cause" cannot be laid down by hard and fast rules. It must be determined by a reference to all the circumstances of each particular case with a view to secure the furtherance of justice. But the admission of appeal after the expiry of time on the ground that the law had not sufficiently been understood could not be a proper reason and amounts to no expla nation for the delay. There could be no such thing as a bona fide mistake of law, for good faith implies due care and caution and the mere ignorance of law could not be recognised as sufficient reason for delay under section 5 of the Limitation Act, for that would be a premium on ignorance. Of course, it cannot be laid down as a general proposition that ignorance of law can never be considered, in very special cases, it may be a sufficient r cause. But a mistake of law, no matter how honestly made, cannot be held to amount to "sufficient cause" under section 5 of the Limitation Act, unless such mistake was made in good faith i.e. notwithstanding due care and attention on the part of the appellant. In the instant case, there is nothing to warrant the conclusion that the mistake was made in good faith much lee is there anything to show that the, appellant acted under an honest belief formed with due care and attention. There is also nothing to suggest that there was no negligence or inaction or want of bona fides on the past of the appellant. In view of this position, the appellant is not entitled to condo nation of delay in preferring the present appeal, after the period of limitation prescribed therefore.

8. The upshot of the discussion given above is, that the present appeal is bound to fail. I would, therefore, dismiss this appeal in limine.