2007 PLP (C (PLC(CS))

MUHAMMAD NAWAZ ABBASI, J.

This appeal by leave of the Court has been directed against the judgment, dated 10-6-1999 passed by the Federal Service Tribunal, Islamabad in service appeal filed by the appellant against his dismissal from service. The appellant was a contract employee of Pakistan Oil Seed Development Board since August, 1995 and his contract of service was terminated vide order, dated 28-8-1997 against which he filed a writ petition in the Lahore High Court but pending disposal of the writ petition, section 2-A was inserted in the Federal Service Tribunals Act, 1973 w.e.f. 15-6-1997 and in consequence thereto, the High Conti, disposed of the writ petition as abated, vide order, dated 8-4-1999. The appellant availing the remedy of appeal under section 4 of the Service Tribunals Act, 1973, filed an appeal before the Federal Service Tribunal which was dismissed by the Tribunal vide judgment dated 10-6-1999 as barred by time.

2. Leave in this appeal was granted to consider the following question:-- "Whether the learned Tribunal was not justified to grant the plea of condonation of delay in the factual background of the case in the light of the observations made by this Court in the case of (1) Civil Petitions Nos.483 and 685 of 1989 titled Lt. Col. (Rtd.) Muhammad Siddique v. Allama Iqbal Open University, Islamabad, decided on 16-12-1998; (2) Muhammad Afzal v. Karachi Electric Supply Corporation and 2 others 1999 SCMR 92; (3) Civil Appeal No.998 of 1999 titled Muhammad Yaqub v. Pakistan Petroleum Ltd. and another, decided on 20-12-1999 and (4) Ghulam Sarwar Bhutto v. Chief Secretary to Government of Sindh and others 2000 SCMR 104."

3. The appellant while appearing in person has contended that Tribunal has not considered the question of limitation in an appropriate manner in the light of the law laid down by this Court on the subject.

4. In consequence to the insertion of section 2-A of Service Tribunals Act, 1973, the employees of the Corporations, Bodies or Organizations established or controlled by the Federal Government acquired the status of civil servants for the limited purpose of availing the remedy of appeal before the Federal Service Tribunal in respect of their terms and conditions of service and by virtue of section 6 of the Federal Service Tribunals Act, 1973, the cases of all such employees falling within the category mentioned therein pending before other forum stood abated. Section 6 (ibid) is read as under:-- "(6) Abatement of suits and other proceedings.

All suits, appeals or applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the commencement of this Act shall abate forthwith: Provided that any party to such a suit, appeal or application may, within ninety days of the [establishment of the appropriate Tribunal, prefer and appeal to it] in respect of any such matter which is in issue in such suit, appeal or application."

5. In the light of the above provision, all pending proceedings in the form of suits, appeals, applications, before any other forum or constitutional petitions before the High Court stood abated from the date of insertion of section 2-A in the statute and remedy of appeal in such cases would be available under section 4 read with section 6 of the Service Tribunals Act, 1973 as amended. The normal period for filing an appeal before the Tribunal under section 6 (supra) was 90 days from the date of insertion of section 2-A in the statute and by virtue of section 7 of the said Act, sections 5 and 12 of the Limitation Act, 1908, would be applicable to such appeals and the appellant on the disposal of his writ petition by the High Court on 8-4-1999 filed appeal before the Tribunal with a delay of more than one year and five months seeking condonation of delay under section 5 of the Limitation Act, 1908 on the ground that due to the confusion regarding the retrospective operation of section 2-A (ibid) and the application of said provision to the writ petitions, he having under the bona fide impression that remedy of appeal was not available to him, continued to pursue the remedy of writ petition in the High Court. This Court having considered the question of retrospective operation of section 2-A of Service Tribunals Act, 1973 in Muhammad Afzal v. Karachi Electric Supply Corporation and 2 others 1999 SCMR 92 and Malik Mumtaz Ahmad and others v. Federal Service Tribunal and others 2000 SCMR 832 held that the service matters of employees falling within the ambit of section 2-A pending before other forums prior to the insertion of above section in the statute, would be abated and in such cases, the remedy of appeal would be available to them before the Tribunal. In Pakistan National Council of Arts v. Azimul Waqar and 2 others 2001 SCMR 1561 it was held that the party who remained ignorant of law or negligent and careless to pursue his remedy diligently and carefully cannot be given any concession in the matter of condonation of delay but in the present case, we find that appellant was not careless or negligent rather he having the bona fide impression that remedy of appeal was not available to him continued to pursue the remedy of writ petition and immediately on its disposal filed appeal before the Tribunal. In these circumstances, the delay in the filing of appeal would not constitute an act of negligence and consequently, the Tribunal was required to consider the question of limitation in the light of the position explained above. This is correct that the limitation for filing appeal before the Tribunal would commence from the date of abatement of the proceedings but in exceptional circumstances, the delay in tiling the appeal could be condoned under section 5 of the Limitation Act, 1908, for a sufficient cause. The appellant having challenged the order of termination of his service before the High Court, has been pursing the remedy of writ petition in good faith under the genuine impression that he could not avail the remedy of appeal and due to the confusion created in respect of retrospective operation of section 2-A of Service Tribunals Act, 1973 he was prevented to file the appeal within the statutory period, therefore, in these circumstances, despite exercising due diligence and caution any person could be misled and commit bona tide mistake of not availing the remedy of appeal pending disposal of writ petition. It would be seen that the appellant was being represented by a counsel in the High Court but probably his counsel was also under the impression that in the given circumstance, the writ petition was the proper remedy and did not advise him to avail the remedy of appeal before the Tribunal. The High Court having lacked the jurisdiction in such matters, on the insertion of suction 2-A in the Service Tribunals Act, 1973, did not dispose of such cases soon after the change in law, so that the aggrieved persons could approach the Tribunal within the statutory period provided under the law. The inaction on the part of High Court for a considerable period, also created confusion in the matter.

6. The learned Deputy Attorney-General has contended that the appellant had no case even on merits and since he was being represented by a senior counsel in the High Court, therefore, it could not be said that he had no knowledge of the change of law and in any case, the ignorance of law is no excuse to condone the delay. We agree with the learned D.A.-G. that in the normal circumstances, condonation of delay in such a case may pot be possible but the circumstances due to which the appellant could not avail the remedy of appeal in the normal period, would not suggest that he was negligent in pursuing his remedy, therefore, it would be in the interest of justice to take a liberal view for condonation of delay in the filing of appeal before the Tribunal.

7. We having considered the matter in the light of law on the subject, find that on the insertion of section 2-A in the Service Tribunals Act, 1973, the position in respect of the abatement of service matters pending before other forums and the retrospective operation of the above provision was not clear and the doubt was ultimately removed by this Court in the judgment referred above, therefore, the question of limitation was required to be considered in each case on the basis of its own facts. In the present ease, as observed earlier, the appellant due to the misunderstanding, did not approach the Tribunal prior to the disposal of the writ petition by the High Court which would be a sufficient circumstance to bring the case within the ambit of section 5 of the Limitation Act, 1908. It was observed by this Court in Muhammad Afzal v. Karachi Electric Supply Corporation and 2 others 1999 SCMR 92 in an identical case that the Tribunal if had proceeded in the matter with a little care, it must have attended the question of limitation in its true perspective by taking a lenient view in the matter of condonation of delay. In the present case, the non-disposal of writ petition by an express order on its abatement by the High Court within the period provided under the law for thing appeal before the Tribunal would be an additional circumstance for condonation of delay. This Court in identical circumstances in Aftab Ahmad v. K.E.S.C. 1999 SCMR 197 and Rehmatullah v. Postmaster-General 2003 SCMR 705 has taken the view that instead of dismissing the appeals on the question of limitation the same should be decided on merits and we in the light of circumstances of this case, are of the view that the appellant was not negligent in pursing his remedy as he filed the appeal before the Service Tribunal immediately on disposal of his writ petition by the High Court, therefore, the dismissal of the appeal as barred by time was not proper.

8. In the light of foregoing discussion, we allow this appeal set aside the impugned judgment and remand the case to the Tribunal for decision of the appeal on merits. There shall be no order as to costs. M.N./M-301/SC Case remanded.