Full Judgment Text & Judicial Ruling

1994 P L C (C

1994 P L C (C.S.) 434

[Supreme Court of Pakistan]

Present: Abdul Qadeer Chaudhry, Sajjad Ali Shah and Wali Muhammad Khan, JJ

POSTMASTER GENERAL, SOUTHERN CIRCLE, LAHORE and another

Versus

GHULAM MUSTAFA

Civil Appeal No. 62 of 1992, decided on 10th October 1993.

(On appeal from the judgment of the Federal Service Tribunal, Islamabad dated 25‑7‑1991 passed in Appeal No. 300(L) of 1988).

Constitution of Pakistan (1973)‑‑‑

‑‑‑‑Art. 212‑‑‑Service Tribunal disposing of civil servant's appeal against his dismissal from service by reducing his penalty to compulsory retirement with monetary benefits‑‑‑Department's plea was that appeal being patently time -barred and there being no reason to condone delay, Service Tribunal should have adverted to question of limitation‑‑‑Plea raised had substantial force, therefore, impugned judgment was set aside and case was remanded to Service Tribunal for disposal of appeal on merits including the determination of question of limitation.

WAPDA v. Zahoor Ahmed 1993 SCMR 582; Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153 and Ahsan Ali and others v. District Judge and others PLD 1969 SC 1871 rel.

Mumtaz Ali Mirza, Deputy Attorney‑General and Rao Muhammad Yusuf Khan, Advocate‑on‑Record for Appellants.

Respondent in person.

Date of hearing: 10th October 1993.

JUDGMENT

SAJJAD ALI SHAH, J: ‑‑This appeal by leave of the Court calls in question judgment dated 25‑7‑1991 of Federal Service Tribunal disposing of appeal of respondent by converting his penalty of dismissal from service into compulsory retirement with pecuniary benefits according to law. In respect of limitation, explanation furnished by Mr. Mumtaz Ali Mirza, Dy. A.‑G. Pakistan to the effect that petition for leave to appeal was filed in time as copy of impugned judgment was received by post in the office on 21‑8‑1991 is accepted as this fact is supported by affidavit duly sworn and placed on the record by Divisional Superintendent, Post Offices, Bahawalnagar.

2. Main contention raised on behalf of appellants before us is that Federal Service Tribunal should not have disposed of appeal by reducing penalty of respondent from dismissal to compulsory retirement with monetary benefits for the reasons firstly that service appeal was patently time‑barred and there was no cogent reason to condone the delay. It was incumbent upon the Tribunal to have adverted to the question of limitation. Secondly not pressing of appeal by the respondent and requesting for reduction of penalty is not a valid ground for not disposing of appeal on merits particularly when there is objection that appeal is time‑barred. Reliance is placed on the cases of WAPDA v. Zahoor Ahmed (1993 SCMR 582), Hakim Muhammad Buta and another v. Habib Ahmad and others (PLD 1985 Supreme Court 153) and Ahsan Ali and others v. District Judge and others (PLD 1969 Supreme Court 167), which fully support the contention. Thirdly on merits it is a case in which dismissal is justified as allegation against respondent is misappropriation of Government money and Tribunal should have dismissed the appeal.

3. Respondent was present in the Court and on our inquiry informed us that Inquiry Officer had exonerated him and disagreeing with him, the competent authority passed order of dismissal. We do not propose to go into the merits of this appeal. We see substantial force in the contentions of learned DyA.-G. supported by case‑law quoted above and agreeing with him we set aside the impugned judgment and remand the case to the Tribunal for disposal of appeal on merits including determination of question of limitation. In the result appeal is allowed in terms stated above.

AA./P‑215/S Case remanded.

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