1995 PLP (C (PLC(CS))

‑‑‑‑R.5‑A‑‑‑Constitution of Pakistan (1973), Art. 212(3)‑‑‑Penalty of dismissal converted to penalty of stoppage of two increments with direction to re‑instate the employee‑‑‑Validity‑‑‑Appeal before Service Tribunal was barred by 106 days‑‑‑Objection with regard to limitation had been taken in written statement filed before Service Tribunal‑‑Question of limitation, however, received no attention by Service Tribunal‑‑Waiver of question of limitation being not permitted, duty was cast upon the Court/Tribunal to determine question of limitation first‑‑Leave to appeal was granted and petition for leave to appeal was converted into appeal‑‑Judgment of Service Tribunal was set aside and case was remanded for 'determination of question of limitation and disposal on merits afresh after hearing the parties. Hakim Muhammad Buta and another v Habib Ahmed and others PLD 1985 SC 153 rel. Ch. Ghulam Hasan Gulshan, Advocate Supreme Court and Tanvir Ahmad, Advocate‑on‑Record for Petitioners. Ch. M. Aslam, Advocate‑on‑Record and Hafiz Tariq Naseem, Advocate Supreme Court for Respondent. Date of hearing: 3rd May, 1994. SAJJAD ALI SHAH, J.‑‑‑By this petition leave is sought against judgment dated 29‑12‑1992 of Federal Service Tribunal, whereby service appeal filed by respondent against his dismissal is allowed to the extent of conversion of penalty to stoppage of two increments with direction to reinstate him in service. Perusal of the impugned judgment shows that respondent was charge‑sheeted for remaining absent for 9 days and for that reason was dismissed. The service Tribunal has reduced the penalty to stoppage of two increments as contemplated under Rule 5(A) of the Pakistan WAPDA Employees (Efficiency and Discipline) Rules.

2. On behalf of Water & Power Development Authority, learned counsel stated that he was unable to appear before the Tribunal on the date of hearing and had sent an application for adjournment, which was not granted and hearing took place in his absence. In that connection affidavit is filed by the learned counsel in this Court which is on the record and in it this fact is mentioned that counsel was in Karachi in connection with his professional duties and was unable to reach Lahore on the date when hearing of appeal took place before the Tribunal and he sent application for adjournment which was rejected.

3. Another objection raised by the counsel for the petitioner is that service appeal was barred by 106 days and such objection with regard to limitation had been taken in the written statement filed before the Tribunal but it received no attention from the Tribunal as is apparent from the judgment. It is submitted that waiver of question of limitation is not permitted and duty is cast upon the Court to determine the question of limitation first. In support of the proposition, reliance is placed on the case of Hakim Muhammad Buta and another v. Habib Ahmed and others (PLD 1985 SC 153). 3A. For aforementioned reasons, feeling satisfied with the contentions raised, we grant leave and convert this petition into appeal and set aside the impugned judgment and remand the case to the Tribunal for determination of question of limitation and disposal on merits afresh after hearing the parties. A.A./W‑134/S ??????????????????????????????????????????????????????????????????????? ??????????? Case remanded.