2013 PLP 1053 (SCMR)

IFTIKHAR MUHAMMAD CHAUDHRY, C.J.

In instant cases leave to appeals was granted vide orders dated 19-4-2012 and 7-5-2012. Marshaling the facts of both the cases is not necessary except noting that Mir Ajab Khan (appellant in C.A. 152 of 2011) while in the employment of Federal Government was dismissed from service. Through this appeal he questions the period of limitation in filing appeal under section 4 of the Service Tribunal Act 1973, interpretation of which has been recorded in the case of Chief Engineer (North) and another v. Saifullah Khan Khalid (1995 SCMR 776). Asad Tora (appellant in C.A. No. 447 of 2012) was in the employment of the government of Punjab and has questioned the period of limitation in filing appeal under section 19 of the Punjab Employees Efficiency, Discipline and Accountability Act 2006 (hereinafter referred to as the Act 2006), interpretation of the same has also been recorded by this Court in the case of Taj Muhammad Afridi v. Principal Secretary to the President Secretariat and others (2011 SCMR 1111).

2. It is to be noted that in this case we have already interpreted the question relating to period of limitation in filing of appeal under section 10 of the Removal From Service Special Powers Ordinance, 2000. It would be appropriate to reproduce the same hereunder:-- "Notwithstanding anything contained in any other law for the time being in force, any person aggrieved by any final order under section 9 may, within thirty days of the order, prefer an appeal in the Federal Service Tribunal established under the Service Tribunals Act, 1973. Provided that if a decision on a representation, or review petition under section 9 is not received within a period of sixty days, the affected person may file an appeal under this section within a period of thirty days of the expiry of the aforementioned period".

3. At this juncture comparison of section 10 of the Removal from Service (Special Powers) Ordinance 2000 (hereinafter referred to as the Ordinance 2000), section 19 of the Act 2006 is necessary because both these laws have substituted some of the provisions governing the period of limitation for filing appeals under these instruments. The object of both the instruments was good governance in the civil service. However, we have already compared section 4 of the Service Tribunal Act, 1973 and section 10 of the Ordinance, 2000, which is identical to section 19 of Act 2006, in the judgment of Taj Muhammad Afridi (ibid), contents wherefrom are reproduced herein below:-- "(9) In terms of the second eventuality, after a lapse of 90 days of filling of the appeal of review or representation he can file the appeal. But there is no specific cutoff period for filing the same. However, the appellant was proceeded against under a special law i.e. the Removal from Service (Special Powers) Ordinance No.XVII of 2000, section 9 of which provides cutoff date/period of limitation for various remedies available to a civil servant. A person on whom a penalty is imposed, may within 15 days from the date of communication of the order prefer a representation to the Prime Minister or such authority as the latter may designate in case the order has been passed by the Prime Minister, person concerned may within the afore-referred period submit representation to the President. Section 10 of the Ordinance stipulates that a person aggrieved of the order passed under section 9 referred to above, may prefer appeal to the Federal Service Tribunal within 30 days. The proviso, however, spells out that if no decision has been received by or communicated to the person so aggrieved (who has filed representation in terms of section 9 of the Ordinance) he may within a period of 60 days of its submission (representation) to the prescribed authority prefer an appeal to the Service Tribunal within 30 days of the expiry of the aforesaid period. Unlike the proviso to section 4 under the Service Tribunals Act, this proviso lays down a cut off period within which he has to file appeal to the Tribunal i.e., "within a period of sixty days of its submission to the prescribed authority, he may prefer appeal to the Service Tribunal within thirty days of the expiry of the aforesaid period". (10) The two provisions are distinct and have to be construed accordingly. The appellant had to file appeal within the period prescribed under the proviso to section 10 of the Removal from Service (Special Powers) Ordinance, failing which the appeal was time-barred. The argument of the learned counsel for the appellant that a civil servant can file appeal within 30 days of the communication of the final order passed on appeal or representation is not tenable. The judgments to which reference has been made by the learned counsel were cases of appeals under the Service Tribunals Act and not the Removal from Service (Special Powers) Ordinance. Under he latter law, a person has 90 days (60 + 30) from submission of representation to prefer an appeal before the Service Tribunal. (11) We have gone through the judgments relied upon by the appellant's learned counsel and find that those are of no avail to him because in both these cases appeals were filed under the Service Tribunals Act and not under the Removal From Service (Special Powers) Ordinance. (12) In terms of the special law under which appellant was proceeded against and under which he availed the remedy of appeal, cannot be made open ended to mean that till the outcome of the representation is communicated to him, he may not file appeal before the Service Tribunal. This would defeat the very purpose of the law. In Tanveer Hussain v. Divisional Superintendent, Pakistan Railways (supra) the Court was called upon to interfere the same issue that we are seized of i.e., the question of limitation under section 10 of the Removal from Service (Special Powers) Ordinance, the Court held as follow:- "

10. It was thus incumbent for the petitioner to have approached the Tribunal within 90 days from 26-3-2002, the date on which he filed submitted his representation, which was decided on 23-10-2002 by which time the period of 90 days provided in section 10 of the Ordinance had already expired. The appeal of the petitioner before the Service Tribunal was clearly time barred. The contention advance by the petitioner for condonation of delay even if taken to be true would not be of any assistance to him in explaining and overcoming the delay in filing the appeal before the Tribunal."

4. Ratio of the judgment in the case finds mentioned in paragraphs Nos. 9 to

12. It is equally important to note that in this case the effect of the judgment as reported in the case of Chief Engineer (North) (ibid) is considered, as it is evidence from the judgment.

5. On having gone through both the judgments, we are of the opinion that there is no conflict between the judgments in the case of Chief Engineer (North) (ibid) as well as in the case of Taj Muhammad Afridi (ibid). It may not be out of context to mention that section 19 of the Act 2006, had also clarified that the employees had to file an appeal in the Punjab Service Tribunal within a period of 30 days of the expiry of period of 60 days whereafter the authority with whom the departmental appeal is pending shall not take any further action. It is clearly provided in this section that the departmental authority would have no power to give any decision after the expiry of 60 days, whereas in the Service Tribunal Act 1973 as well as in the Ordinance 2000, no such provision exists.

6. It would be appropriate if the respective legislative bodies consider incorporating such provisions in their laws to avoid any confusion which occurs to an employee, in filing of the appeal. Thus we held as follows:-- (a) Where a departmental appeal has been filed within prescribed period, if provided, the affectee or Civil Servant had to wait for 90 days in case of filing appeal under section 4 of the Service Tribunal Act 1973; (b) If within the stipulated period the affectee or Civil Servant is not communicated the decision of the competent authority, he had an option to file appeal within next 30 days without waiting the decision of the departmental authority; OR (c) He can wait till the time of communication of the decision by the departmental authority and from the said date he could file appeal within next 30 days. As far as the Ordinance 2000 and the Act 2006 are concerned, the affectee/employee had to avail an opportunity of departmental appeal, review or representation, if available after a period of 60 days and on the expiry of such period within next 30 days he would prefer appeal before the Tribunal, notwithstanding, as to whether the departmental appeal has been decided or not. (2) If no appeal/representation or review is available under the relevant rules of the department, the aggrieved person would file appeal in the Tribunal within 90 days under the Ordinance. (3) In the case of Ordinance, 2000, if an appeal has been filed under section 9 within a period of 15 days, the aggrieved person shall wait for 60 days and on the expiry of the same he would have an option either to approach the Service Tribunal within 30 days or wait till the decision of the departmental authority and on the communication of the same within next 30 days appeal shall be filed.

7. As we have observed hereinabove that there is no conflict in both the judgments referred to herein above, as such no interference by this Bench is called for in the case and the cases shall be decided by the respective Benches accordingly. MWA/M-31/SC Order accordingly.