1989 PLP 864 (SCMR)

ZAFFAR HUSSAN MIRZA, J.‑‑This appeal by the Pakistan Railways by leave arises out of the judgment passed by the Federal Service Tribunal, Karachi, allowing the appeal filed by the respondent and directing that he shall be allowed the benefits permissible under the War Service Benefit Scheme in the matter of fixation of pay and grant of pension.

2. The fads are that the respondent was serving as Head Clerk in Pakistan Railways having joined the service of the Railways on 24th February, 1949. The respondent claimed, on the basis of his War Service that he was entitled, in view of the policy laid down by the Government of Pakistan to the War Service Benefits and his pay pension was to be fixed accordingly.

3. In this connection the respondent has been making repeated representations for the grant of said benefits, but finally his claim was rejected vide letter dated 6th February, 1979. He, therefore, filed a petition before the authority under the Payment of Wages Act, 1936, for the recovery of the amount claimed by him. By order dated 10th December, 1981 the authority accepted the application of the respondent and ordered that the respondent shall be paid; Rs.2,06,

592. Being aggrieved, the appellant herein filed an appeal before the Sind Labour Court which was accepted vide order dated 1st April, 1982, holding that the appellant was a civil servant and therefore the application before the Authority was not competent. In view of the aforesaid decision of the Labour Court, the respondent filed an appeal before the Service Tribunal in May, 1982. Along with the appeal the respondent filed an application under section 5 of the Limitation Act for condonation of delay. In reply the appellant filed a written statement denying the entitlement of the respondent to the war service benefits and also raising legal grounds that the appeal filed by him was not maintainable.

4. In support of the legal grounds the appellant, inter alia, raised the objection that the appeal was time‑barred and the grounds for the condonation of delay were nest sufficient. The Tribunal without specifying these. legal objections specifically, referred to them as "number of technical and legal objections as to the maintainability of the present appeal." It then proceeded to dispose of the unspecified legal objections and held that the grievance of the respondent was a continuing wrong regarding the payment of salary, and mere technicalities cannot be allowed to defeat the right of a civil servant. Reliance was placed on an unreported judgment of this Court in Civil Appeal No.56‑K/1980, Mrs. Munawar Sani v. Director, Army Education.

5. On the merits the Tribunal rejected the plea of the department that the respondent was not entitled to claim benefits ref the scheme in question. because he was not appointed against 70n%, quota for military personnel, on the ground that in spite of opportunity provided the department had failed to produce the relevant record. The appeal filed by the respondent was thus allowed by the 0 Service Tribunal vide the impugned judgment in this appeal.

6. Leave was granted by this court to consider the contention that if the appeal before the Tribunal was directed against the order, dated 6th February, 1979, refusing the grant of benefits claimed then the appeal filed on 13th May, 1982, was clearly time‑barred and that if the appeal was directed against some other order, then as no such order was specified the appeal was not competent.

7. The question whether the appeal of the respondent before the Service Tribunal was Tribuna1 was not competent has, , not been pressed before us on behalf of the appellant, inasmuch as it is common ground drat the appeal was filed against order, dated 6th February, 1971?, finally rejecting the claim of the respondent for the benefits sought by him. The second point sin which leave was granted therefore, acres not require determination, namely, whether the appeal was incompetent as it was not directed against any specified order.

8. The only question that remains to be decided is whether the appeal of the respondent before the Service Tribunal was barred by limitation and was liable. to be dismissed as such. It was urged on behalf of the appellant that the appeal having been filed on 13th May, 1982, was clearly barred qua the order, dated 6th February, 19'79, as it was filed with a delay of more than three years. We, however, find that the respondent along with his appeal also submitted an application under section 5 ref the Limitation Act for condonation of delay. Learned counsel for the appellant was not aware of this fact and indeed did not j>ring this fact to the notice of the Court at the time of hearing of the petition for leave tic appeal. There can be no doubt about this fart, however, as besides a copy of the same having being submitted before us, reference has been made to the prayer for condonation of delay in the written statement submitted by the appellant before the Service Tribunal in para. 1(b) which reads as follows: "That appeal is hopelessly time‑barred, the grounds for the condonation of delay contained in the application and its supporting affidavit are not sufficient to condone the delay. More particularly the applicant has failed to explain each day's delay which he has failed to do." As already observed the learned Tribunal did not specifically advert to the question whether there were sufficient grounds for condoning the delay in filing the appeal. It is now well settled that where any special law prescribes for any appeal a period of limitation whether the plea of limitation is raise, or not, it is the duty of the Court or Tribunal to notice the point of limitation. A waiver of the question of limitation is not permissible, even where the period of limitation is prescribed by a special law or local law. It was postulated in Ahsan Ali and others v. District Judge and others P L D 1969 S C 167 as under: "It has also been held by this Court in several cases that mere disposal of the appeal on merits is not sufficient to lead to the inference that the delay must have been condoned. There must ire something in the order or judgment itself to show that the Court concerned was conscious of the fact that the proceeding was out of time and had applied its mind to the question of limitation before dealing with the proceeding on merits, vide Ata Ullah Malik v. The Custodian of Evacuee Property and others P L D 1964 S C 236; Syed Azmat Ali v. Chief Settlement and Rehabilitation Commissioner etc. P L D 1964 S C 200 and Muhammad Farooq Imam v. Claims Commissioner P L D 1964 S C 585."

9. In the light of these settled principles we have examined the judgment of the Service Tribunal and we have found no indication in the same that the Tribunal was conscious of the fact that the proceeding was out of time and had applied its mind to tire question of limitation before dealing with the, proceeding on merits. All that the Tribunal did was to generally refer to unspecified technical and legal objections as to the maintainability of the appeal. This does not satisfy the requirements of the dictum laid down by this Court. The. reference by the Service Tribunal to the unreported judgment in the case of Mrs. Munawar Sanni, in our opinion was in apt and did not furnish assistance in the facts of this case. An objection on the ground of limitation or far that matter the question together sufficient grounds are made out for condonation of delay is not a mere matter of technicality as laid down in the above, cited judgment of this Court in the cast: of Ahsan Ali. The unreported judgment proceeded upon facts totally distinguishable from the facts of the present case. In that case the learned Deputy Attorney General had conceded before the Court that the appellant therein was entitled in law to receive the arrears of pay for the period in question. In these circumstances it was directed that the relevant authorities should honour the claim of the appellant for payment of arrears of salary and not force the appellant to seek remedy in the proper forum. In the present case it was not admitted that the respondent was entitled to tire benefits sought by him. Therefore, the entitlement of the respondent was a contentious issue to be adjudicated upon by the Sect ice Tribunal on the proper materials.

10. In the circumstances the judgment of the Service Tribunal is unsustainable and cannot be upheld. The Service Tribunal ought to have first applied its mind to the question whether there: were sufficient grounds for condonation of delay and after disposing of that matter, if necessary determine the appeal on merits on a proper consideration of the facts as well as the relevant rules.

11. In the result this appeal is accepted and the judgment of the Service Tribunal, dated 6th June, 1984, is set aside. The case is remanded to the Service Tribunal for rehearing of the appeal in the light of this judgment and for a fresh decision thereon. There will be no order as to costs. A.A./P‑75/S Appeal accepted.