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Petitioner: MUKHTIAR AHMED SHAIKH VS Respondent: FEDERATION OF PAKISTAN through Secretary Ministry of Law, IslamabadHonorable Justice Allama Dr. Fida Muhammad Khan
P L D 2014 Federal Shariat Court 23
Before Dr. Agha Rafiq Ahmed Khan, C.J., Allama Dr. Fida Muhammad Khan and Ashraf Jahan, JJ
Cap. (R) MUKHTIAR AHMED SHAIKH---Petitioner
Versus
FEDERATION OF PAKISTAN through Secretary Ministry of Law, Islamabad---Respondent
Shariat Review Petition No.2/I of 2000, decided on 5th March, 2014.
(a) Service Tribunals Act (LXX of 1973)---
----Ss. 3-A(2) (a) & (c)---Constitution of Pakistan, Arts.203-D & 203-DD---Shariat Review petition---Members of a Bench of Service Tribunal differing in opinion as to the decision to be given on any point---Opinion of the Chairman to prevail as provided under S.3-A(2)(c) of Service Tribunals Act, 1973-- Repugnancy to Injunctions of Islam---Equality among all human beings---Scope---Plea that all human beings were equal and thus Chairman could not be entitled to any preferential treatment, and that the Chairman could not be equated with two Members of the same Bench---Validity---Chairman, Service Tribunal could not enjoy any preferential authority in deciding a judicial matter---Concept of equality among human beings was enshrined in the Holy Qur'an and Sunnah of the Holy Prophet---Islam strongly advocated the concept of equality among mankind irrespective of their colour, creed, gender or any other consideration---All were considered equal and entitled to equal protection of law, and the Chairman of Service Tribunal was no exception---Rule/law giving preferential authority was even alien to the Chief Justice of a High Court, Federal Shariat Court and even the Supreme Court, who enjoyed equal judicial powers with all other members of a Bench---As such S.3-A(2)(c) of Service Tribunals Act, 1973, which granted double weight to the opinion of the Chairman and let him decide the fate of a judicial matter solely on his strength, was repugnant to the Injunctions of Islam---Shariat review petition was allowed accordingly with a direction to the Federal Government to take necessary steps to amend S.3-A(2)(c) of Service Tribunals Act, 1973 so as to bring same in conformity with Injunctions of Islam before 30th June, 2014, whereafter said section shall become void and have no legal effect.
Al-Qur'an Suras 49:13; 4:1 and Al-Musnad, Ahmad Ibn Hunbal, Vol. V, p.111 printed Beirut ref.
(b) Service Tribunals Act (LXX of 1973)---
----Ss. 4(1), proviso (a), 6 & 7--- Service Tribunals (Procedure) Rules, 1974, R.8---Limitation Act (IX of 1908), S.5---Constitution of Pakistan, Arts.203-D & 203-DD---Shariat Review petition---Appeal before Service Tribunal---Limitation---Fixation of time limit for filing appeal---Repugnancy to Injunctions of Islam---Plea that Shariah did not contemplate any time frame to extinguish the rights of human beings; that limitation debarred decision on merit and thus opposed principles of justice and fair play---Validity---By way of limitation for filing an appeal, as substantive right could not be usurped nor it got extinguished---Limitation prevented a claimant from knocking at the doors of a court, and without limitation a floodgate of matters piled up during past years would open, when evidence of the same would have been destroyed or lost and no record or evidence would be available for the courts to decide the same---Judges always stood in need for evidence, which might not remain available indefinitely---Plea challenging proviso (a) to S.4(1) & Ss. 6 & 7 of Service Tribunals Act, 1973 on point of limitation was misconceived and said provisions were not repugnant to Injunctions of Islam---Shariat review petition was dismissed accordingly.
PLD 1989 FSC 89 and 1991 SCMR 2075 ref.
Petitioner in person.
M. Aslam Butt, Deputy Attorney-General for Federal Government.
Ch. Saleem Murtaza Mughal, Asstt. Advocate-General for Government of Punjab.
Abdul Majeed, Advocate for Government of Sindh.
Mujahid Ali Khan, Deputy Advocate-General for Government of Khyber Pakhtunkhwa.
Naseer Ahmed Bangulazai, Additional Advocate-General for Government of Balochistan.
Dates of hearing: 28th and 29th January, 2014.
JUDGMENT
ALLAMA DR. FIDA MUHAMMAD KHAN, J.---This Shariat Petition having been, converted in Review Shariat Petition, filed by petitioner Capt.(R) Mukhtiar Ahmed, challenges section 3-A(2)(C), section 4(1) with Proviso (A) and sections 6 and 7 of Service Tribunals Act, 1973 (LXX of 1973), as amended from time to time, on the ground that these are against the Injunctions of Islam. The impugned sections read as mentioned hereinunder:--
"Section 3-(A)(2)(c).
3-A. The Powers and functions of a Tribunal may be exercised or performed by benches consisting of not less than two members of the Tribunal, including the Chairman, constituted by the Chairman.
(2) If the members of a bench differ in opinion as to the decision to be given on any point.
(c) If the members are equally divided and the Chairman of the Tribunal is himself a member of the Bench, the option of the Chairman shall prevail and the decision of the Tribunal shall be expressed in terms of the opinion of the Chairman."
"Section 4(1) with proviso (a) and Sections 6 & 7.
Section 4-(1): Any civil servant aggrieved by any final order, whether original or appellate, made by departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him, [or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal]:
Provided that:
(a) Where an appeal, review or representation to a departmental authority is provided under the (Civil Servants Act 1973) or any rules against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred."
"Sections 6 and 7
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 forth with:
Provided that any party to such a suit, appeal or application may, within ninety days of the [establishment of the appropriate Tribunal, prefer an appeal to it] in respect of any such matter which is in issue in such suit, appeal or application.
Limitation. The provisions of sections 5 and 12 of the Limitation Act, IX of 1908, shall apply to appeals under this Act."
2. We have heard the petitioner in person. He contended that in case the Members of the Service Tribunal are equally divided and the Chairman of the Tribunal himself is a Member of the Bench, the opinion of the Chairman should not prevail on the following grounds:-
* All human beings are equal and the Chairman cannot be equated with two Judges of the same Bench; and
* The Holy Prophet ( ) had declared on the occasion of his last Address of Hujjatul Wida that "All people are equal, just like the teeth of a comb. There could be no claim of superiority of an Arab over a non-Arab or of a white over a black person. Only God-fearing people merit preference with God". Thus the Chairman is not entitled to any preferential treatment over the other numbers. However, as head of the set up, he may enjoy more pay, perks and privileges.
3. According to the petitioner though the Procedural Law is outside the ambit of jurisdiction conferred on this Court by the Constitution of Islamic Republic of Pakistan vide its Article 203-B(c), nevertheless, falls within the jurisdiction as, according to him, a procedure which extinguishes a substantive right can be examined by this Court and the impugned Sections being related to substantive right are well within the purview of jurisdiction of Federal Shariat Court. He placed reliance on PLD 1989 FSC 84 and PLD 1986 SC 360.
4. In this connection, referring to the impugned section 4(1) and proviso (a), the petitioner further submitted that fixation of time limit for filing of appeal is against the Injunctions of Islam on the following grounds:-
* Failure to file appeal within this period entails forfeiture of the right and in case he does not file appeal, he would lose his lawful right. This section and the proviso both negate the concept of Shariah;
* Shariah does not contemplate any time frame to extinguish the rights of Allah-nor of human beings. He added that Qaza Salat ( ) is permissible and one has all the time to perform this religious obligation during his life time. Likewise late payment of Zakat has also been permitted and this is equally true about fasting. Thus it is desired that Courts may take inspiration from this practice and decide claims/rights without adhering to any time frame.
* The limitation of time hampers justice and is not in line with Islamic Injunctions.
To support his contentions, he relied upon the following Ahadith:--
"Prophet (P.B.U.H.) has been quoted in Muslim to have said "You bring your disputes to me. It is possible that one of you be more eloquent than the other, and I decide according what I hear from him. But whom so ever I award a portion from the right of his brother, he should not take it, because what I gave him is but a portion of hell". Ch 251 b 1968 It implies, on the face of it that best of the judges can be led to the wrong decision. But one has to be accountable for omission/commission of usurping. He has to return the due right so usurped on the day of judgment. Thus in matter of rights Islam does not recognize the law of limitation. Islam does not impose the time-frame for redress of grievance. Even the judgment of Prophet (P.B.U.H.) does not help a usurper. In the Service Tribunals Act, the state has worked out the modality to extinguish the right of a person who does not go according to time-schedule. The time-scheduling is against the commandments of Islam.
He further submitted that there is another famous tradition quoted in Bukhari, "Help your Muslim brother whether he is 'Zalim' or 'Mazlum'. It was asked that help of 'Mazlum' is understandable but how 'Zalim' can be helped. The Prophet ( ), replied that help him by stopping him from committing `Zulm'." This time-frame of filing of appeal if not adhered will extinguish his right. This is perpetuation of 'Zulm' and Prophet ( ) has ordered its cessation. It fully justifies that the time-frame set in the Act be done away with. When one has to answer even at D-Day, he be given chance to mend and rectify the mistake, be it Government department/State or an individual.
The technicality of limitation debars decision on merit and thus it is squarely opposed to principle of justice and fair play.
5. We have also heard Muhammad Aslam Butt, Deputy Attorney General Pakistan, Ch. Saleem Murtaza Mughal, Assistant Advocate General, Punjab, Naseer Ahmad Bangalzai, Additional Advocate General, Balochistan Mr. Mujahid Ali Khan, Deputy Advocate General, KPK and Abdul Majeed, Advocate on behalf of Government of Sindh.
6. Comments submitted on behalf of Federation read as under:--
"The Service Tribunals Act derives its authority from the Constitution of Islamic Republic of Pakistan, 1973 and the Rules of 1974 were issued in accordance with the Service Tribunal Act.
Section 3(A)(2)(C) is required to be read with Section 3A(2)(a) "the point shall be decided according to the opinion of the majority." Section 3(A)(1) clearly describe that "The powers and functions of the Tribunal may be exercised or performed by benches consisting of not less than two Members of Tribunal, including the Chairman, constituted by the Chairman." Since, the Chairman of the Tribunal so appointed by the Government is always a sitting Judge or retired Judge of the High Courts and the points are decided according to the opinion of the majority and if the relief is allowed or refused by the Tribunal, as the case may be, it is available to the parties to move a CPSLA before the Supreme Court of Pakistan under Article 185 of the Constitution, therefore, there is nothing against Injunctions of Islam.
Admitted that in accordance with Section 4(1) and proviso (a):
"(1) any civil servant aggrieved by any order, whether original , or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him, or within six months of the establishment of the appropriate Tribunal whichever is later, prefer an appeal to the Tribunal.
(a) Where an appeal, review or representation to a departmental authority is provided under the Civil Servants Ordinance, 1973, or any rule against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review of representation to such departmental authority and a period of ninety days has application or representation was so preferred."
The limit of 30 days of the communication of such order or prefer an appeal before the Service Tribunal after waiting for 90 days if competent authority does not respond by that period. However, it may be added that in accordance with Rule 8 of the Service Tribunal (Procedure) Rules, 1974, which is reproduced as under:--
"8. Where an appeal is presented after the period of limitation prescribed in the Act, it shall be by an affidavit setting forth the cause of delay."
Law of limitation is ancient law and existing in all the civilised societies before and now. This branch of law is a specialized subject. The law of limitation in spiritual and mundane affairs is very particular in civilized society of Muslims like prayers and law of pre-emption and other laws. It cannot be brushed aside by saying from here and there. Muslim Jurists have declared law of limitation as "Law of peace and repose". The perspective opinion of a person should not prevail over the law of limitation as expounded by Muslim Jurists and Qazis from time to time for the last fourteen hundred years.
The procedure of hearing of appeals and decision thereupon is inbuilt on the aims and objects of the Service Tribunals Act, 1973 on the collective wisdom of supreme authority i.e. Parliament of this country. It cannot be tampered with by opinion of an individual for his own purposes under the garb of religion and that also Islam, which religion is final and eternal religion for all the mankind. ,
Accordingly, limitation prescribed in the Act does not hamper the justice, delay in filling appeal can be condoned by the Tribunal rather it protects the rights of the appellant qua the private respondents or the respondent Government, as the case may be, as it operates equally in favour of both the parties. The aggrieved Civil Servants can prefer an appeal redress of grievance before the Service Tribunal supported by an affidavit setting forth cause of delay. Therefore, there is nothing against Qur'an and Sunnah because Section 7 Limitation shall apply to all appeals. Accordingly, the benefit is available to every body without any discrimination
The Federal Service Tribunal is an administrative Court set up under Article 212 of the Constitution of Islamic Republic of Pakistan 1973 to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of civil servants. The Tribunal has been providing in-expensive justice to the civil servants, ever since its establishment in 1974. The appellants are entitled to argue their cases themselves without spending any penny or hiring services of any Advocate. Due to progressive contribution of the Tribunal towards giving justice to the aggrieved civil servants and speedy disposal of cases, the Parliament has incorporated amendment in the Service Tribunals Act, 1973 by amending Act XVII of 1997 dated 10-6-1997, due to which jurisdiction of the Tribunal has extended to employees of any authority, corporation, body or organization Federal Law or which is owned or controlled or in which the Federal Government has a controlling share or interest.
The cases are decided in accordance with the provision of Service Tribunals Act and the rules.
7. Comments on behalf of Government of Punjab are as follows:--
"It transpires form para. No.1 of the application dated 9-1-2001 regarding the original Shariat Petition No.03/I/1999 to be converted into Review Shariat Petition No.2/I/2000 is not maintainable as the original Petition No.3/I/1999 has already been converted into Review Petition No.2/I/2000 on 23-10-2000 as referred by the petitioner in his petition dated 9-1-2001 and Law and instances mentioned in Para 2 of the application dated 9-1-2001 are not helpful to the petitioner as these are in a different context. Thus the Petition being not maintainable is liable to be dismissed.
The case-law cited by the petitioner is in a different context. The law of limitation is a Procedural Law and the provisions of Limitation Act IX of 1908 i.e. sections 5 & 12 of the Limitation Act are applicable to the appeals filed under the Service Tribunals Act 1973 vide section 7 of the Service Tribunals Act, 1973 and the time period for filing the appeal is provided under section 4(1)(a) of the Act LXX of 1973.
The provisions which provide the limitation for filing the appeal are Procedural in nature. If by any reasons the time period of limitation has elapsed then section 7 of the Act comes to rescue the person whose appeal is time barred. Such appellant is provided with a remedy for condonation of delay under section 5 of Limitation Act 1908 so if the aggrieved person explains the delay for filing the appeal and his application for Condonation of Delay is based upon cogent/plausible reasons and any other sufficient cause such application would be accepted and his appeal will be decided on merits but if otherwise there are no cogent ground for Condonation of Delay then the Tribunal by exercising the discretion judicially, and turns down such petition, only then the appeal will not be entertained if time barred. The provisions of Service Tribunals Act as regards limitation are quite in conformity with the injunctions of Islam. Every case has its own merits and demerits and every case is decided in accordance with law enacted thereto.
The distinction between substantive law and procedural law have been determined by the Shariat Appellate Bench in a case reported as 1991 SCMR 2063 wherein the substantive law i.e. section 28 of Limitation Act 1908, which extinguished rights and barred the remedy, was declared repugnant to injunctions of Islam and the Procedural Law was never declared repugnant to injunctions of Islam. The Hon'ble Shariat Appellate Court (SC) held in 1991 SCMR 2063, relevant is at pages 2072 and 2073 wherein it was held that Procedural Law does not fall in the ambit of Article 203-G(b) of the Constitution of Islamic Republic of Pakistan 1973. Thus the august Court has no jurisdiction to decide as regard to Procedural Law, (1991 SCMR 2063). So the petition is not maintainable and is liable to be dismissed.
Section 3-A(2) (c) which reads as under is quite inconformity with the injunctions of Islam.
The powers and functions of a Tribunal may be exercised or performed by benches consisting of not less than two members of the Tribunal, including the Chairman, constituted by Chairman.
(2) If the members of a bench differ in opinion as to the decision to be given on any point:--
(a) The point shall be decided according to the opinion of the majority;
(b) If the members are equally divided and the Chairman of the Tribunal is not himself a member of the bench, the case shall be referred to the Chairman and the decision of the Tribunal shall be expressed in terms of the opinion of the Chairman; and
(c) If the members are equally divided and the Chairman of the Tribunal is himself a member of the Bench, the opinion of the Chairman shall prevail and the decision of the Tribunal shall be expressed in terms of the opinion of the Chairman.
In all sub clauses i.e. a, b & c of subsection (2) of section 3-A contain the word opinion and the word opinion imports only subjective satisfaction of the members and Chairman of the Tribunal and the subjective satisfaction is always helpfull for administration of justice. Thus subsection 2(c) of section 3-A is not violative of injunctions of Islam.
Section 4(1) and Proviso-A provides period of limitation for filing appeal and if appeal is barred by time then the aggrieved person has been given right to file application for Condonation of Delay under section 5 of Limitation Act 1908 vide section 7 of the Service Tribunals Act 1973.
Section 4(1)(a) read with section 5 Limitation Act 1908 is a Procedural Law and does not extinguish any right of a party but these provisions are provided in aid to administration of justice.
As held by Shariat Appellate Bench of Supreme Court in 1991 SCMR 2063, the Federal Shariat Court has no jurisdiction under Article 203-G(b) of the Constitution of Islamic Republic of Pakistan 1973, to pass any order, meaning thereby that the Hon'ble Shariat Court has no jurisdiction to strike down any Procedural Law.
The instances mentioned in paras 5-7 herein are correct but in a different context. The Procedural Law of Limitation is quite in conformity with the Injunctions of Islam. Such provisions of Procedural Law of Limitation are enabling provisions for administration of justice and fair play.
Section 7 of the Service Tribunals Act 1973 also provides protection to a litigant/appellant whose appeal has become barred by time. These provisions of Limitation Act 1908 are also procedural in nature and these help for administration of justice so section 7 of the Service Tribunals Act 1973 is not against injunctions of Islam."
8. Comments of Government of KPK are summed up as under:--
The provision of Service Tribunals Act limiting the time for filing appeal is not against the injunction of law and Islam. Reference is made to 1991 SCMR 2063.
Principle of estoppels through Conduct is accepted by Islam. Leaving matters undecided for indefinite period is against the public policy and State interest. Reference is made to PLD 1986 SC 360.
The provision of section 3-A(2-C) of Service Tribunals Act are not opposed to provision of Islam. The appointment of Chairman among the Judges is in compliance with the provision of Islam. Islamic provision enjoins upon Islamic society to appoint Amir and follow him when he make orders not opposed to Qur'an and Sunnah. It also demands people obedience of those in authority Almighty Allah Verse 99 of Chapter-IV lays down as under:--
"O you who believe, obey Allah, and obey Messenger and those of you in authority."
How a dispute can be resolved if there is difference of opinion between the members of bench. The principle of equality has wrongly been stretched. Islam accepts preference of those pious over the others while making appointment for public offices.
Provision of section 4(1) and section 6 are not against the provisions of Islam.
As stated above, provisions of section 7 are not opposed to Islam, Qazi is not stopped to do complete justice, by condoning delay if reasons for delay are given.
No provision of Service Tribunal is opposed to the provision of Islam.
9. Comments of Government of Balochistan are as follow:--
"The application dated 9-1-2001 is not maintainable as the Original Petition No. 3/I/1999 has already been converted into Review Petition No.2/I/2000 on 23-10-2000 as referred by the petitioner in his petition dated 9-1-2001 and Law and instances mentioned in Para 2 of the application dated 9-1-2001 are not helpful to the petitioner as these are in a different context".
Thus the Petition No.2/I/2000 is not maintainable and is liable to be dismissed.
The case-law cited in this para by the petitioner is in a different context. The law of limitation is a Procedural Law and the proviso of Limitation Act IX of 1908 i.e. sections 5 & 12 the Limitation Act are applicable to the appeals filed under the Service Tribunals Act 1973 vide section 7 of the Service Tribunals Act 1973 and the time period for filing the appeal is provided under section 4(1)(a) of the Act LXX of 1973 which reads as under:--
"Section 4(1)(a) Any civil servant aggrieved by any order, whether original or appellate, made by departmental authority in respect of any of the terms and conditions of his service may, within 30 days of the communication of such order to him (or with six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal)
(a) Where an appeal, review or representation to a departmental authority is provided under the Civil Servants Act, 1973 (LXXI of 1973), or any rules against any such order, no appeal lies to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or…
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