1989SCMR1785 (PLP)

MUHAMMAD AFZAL ZULLAH, J.‑‑Petitioner's service appeal has been dismissed .by Punjab Service Tribunal on the ground that departmental review application not having been filed, the appeal before the Tribunal was incompetent. The petitioner has appeared in person and has pointed out that he and a higher officer were involved in the same case; and that he had gone through exactly the same procedure as the higher officer had done. When specifically asked; whether, a review, representation or appeal in accordance with the Rules before the departmental authority was not filed, he stated that it was filed but wrongly as a "mercy" petition. The original order which went against the petitioner was passed on 16‑6‑1983 it appears that for a considerable time he did not challenge it. A case was pending against him before the Military Authorities which concluded somewhere in 1985. In the meanwhile the co‑accused of the petitioner was exonerated. He then moved a mercy petition which was rejected on 20th October, 1986. Taking that as the final order he filed the Tribunal appeal on 18‑11‑1986. The learned counsel appearing for the appellant before the Tribunal had taken up the plea that the use of the word `Mercy' in the heading of the petition would not make any difference. It can be treated by the forum concerned as proper proceedings by making the necessary amendment therein. The Tribunal, however, was of the view that: firstly, it was not the proper proceedings before the departmental authority as there was no scope for mercy petition; secondly, it was held that the same was filed before the authority concerned beyond the period of limitation; and thirdly, it was held that the appeal before the Tribunal against the original order by excluding the departmental review/representation or mercy petition, was time‑barred. After hearing the petitioner and going through the impugned judgment we consider it a fit case for grant of leave to appeal to examine; whether, in case the departmental authority had not rejected the mercy petition on ground of limitation could the Tribunal treat it as time‑barred; whether, the mercy petition could not be treated proper proceedings by making necessary amendment in the phraseology used therein by virtue of the principle underlying under section 153, C.P.C.; if the needful was thus done whether, the petitioner had not satisfied the condition of approaching the departmental authorities in accordance with the provisions of section 4 of the Punjab Service Tribunal Act, 1974; if said condition was satisfied whether, the appeal before the Tribunal was time‑barred; and all other related questions. Leave to appeal is granted. The appeal shall be prepared on present record with direction to file all essential documents. M.A.K./M‑902/S Leave granted.