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Petitioner: NATIONAL BANK OF PAKISTAN, PRINCIPAL OFFICE, PESHAWAR VS Respondent: ANWARUL HAQ
1999 P L C (C
1999 P L C (C.S.) 1316
[Federal Service Tribunal]
Before Noor Muhammad Magsi and Abdul Hameed Khan Khattak, Members
NATIONAL BANK OF PAKISTAN, PRINCIPAL OFFICE, PESHAWAR
versus
ANWARUL HAQ‑‑‑Respondent
Appeal No. 1084(R) of 1998, decided on 27th May, 1999.
(a) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 4‑‑‑Limitation Act (IX of 1908), S. 5‑‑‑Delay in filing appeal Condonation‑‑‑ Appeal before Service Tribunal was filed long after expiry of prescribed period of ninety days‑‑‑No application for condonation of delay was filed alongwith memo of appeal, but same for condonation was filed after thirty‑three days from filing of appeal without explaining as to why the application was not made promptly on date of filing appeal ‑‑‑Effect‑‑ Each day of delay was to be reasonably explained to the entire satisfaction of Service Tribunal‑‑‑Sound and reasonable grounds/explanation must exist as a result of which appellant was unable to approach Service Tribunal within required period‑‑‑In absence of any valid ground to justify condonation of inordinate 'dalay, time‑barred appeal was rightly dismissed.
(b) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 4‑‑‑Appeal‑‑‑Abatement‑‑‑Where abatement of appeal/proceedings resulted from operation of law, such abatement would become operative ipso facto at once and there was legal requirement for obtaining any formal order or declaration from forum or Court seized of the matter and time wasted before those such forums thereafter could not be availed of by party under guise of "pursuing matter before competent forum", as after abatement of proceedings, said forum could not be held to be competent or proper forum.
M. Rashid Qamar for Appellant.
Ch. Sadiq M. Warraich for Respondent.
Date of hearing: 26th May, 1999:
JUDGMENT
ABDUL HAMEED KHAN KHATTAK (MEMBER)‑‑‑By means of this appeal, the appellant‑National Bank of Pakistan has assailed the findings of Punjab Labour Court No. 6, Rawalpindi, dated 29‑10‑1988 and F also of Punjab Labour Appellate Tribunal dated 21‑12‑1988 whereby the respondent was ordered to be reinstated in service.
2. Shortly stated the facts as to be culled from the record are that respondent‑Anwarul Haq was an employee of the‑ appellant‑Bank and while posted as Senior Cashier at Dhani Branch, Mansehra, was charge‑sheeted for commission of fraud, misappropriation and breach of trust (the respondent was alleged to have joined hands with the Manager of the Bank in fraudulently withdrawing an amount of Rs.5,000 of an account holder which subsequently was refunded/deposited by the respondent) and those proceedings consequently culminated in his compulsory retirement from service vide the order dated 20‑12‑1984. The respondent filed the grievance petition against the same before Punjab Labour Court No 6, Rawalpindi, to which the appellant made reply (Annexure‑C). His grievance petition was accepted by the said learned Labour Court on 29‑10‑1988 and as a result respondent was reinstated in service with back benefits. The appellant assailed the judgment dated 29‑10‑1988 by preferring appeal before Punjab Labour Appellate Tribunal (Annexure‑D) but the same was dismissed in limine on 21‑12‑1988. The appellant filed writ petition before the Hon'ble Lahore High Court, Rawalpindi Bench but during the pendency of the same due to insertion of section 2‑A in the Service Tribunals Act, 1973 those proceedings abated on 10‑11‑1998 (Annexure‑F) whereafter the appellant preferred the instant appeal before this Tribunal on 9‑12‑1998 wherein both the orders of Punjab Labour Court and Punjab Labour Appellate Tribunal have been challenged on the grounds that no grievance notice as required under the rules was served by the respondent upon the competent Authority prior to bringing of grievance petition under section 25‑A of I.R.O., 1969, the respondent had confessed his guilt before the Inquiry Officer, thus, his compulsory retirement was not open to interfernece, the inquiry proceedings were conducted lawfully to the entire satisfaction of the respondent and the findings of the said two Courts were not supported by evidence on record.
3. This appeal was hotly contested by the respondent by filing parawise comments at pre‑admission stage wherein he fully supported the judgments of aforementioned Courts and he controverted all the aforesaid grounds taken in the memo of appeal. A legal objection of limitation was also raised. It was further maintained that with regard to this very alleged misappropriation a criminal case was also got registered against the respondent but he earned acquittal from the said learned Trial Court and the said findings were not challenged by the appellant before the higher forum.
4. We have heard the learned counsel for the parties and perused the relevant record.
5. We would like to take up the legal objection of limitation for discussion.
6. A resume of the above facts given in chronological order reveal that the respondent was compulsorily retired from service on 20‑12‑1984, he was reinstated vide judgment of Punjab Labour Court No. 6, Rawalpindi dated 29‑10‑1988 against which present appellant preferred appeal before Punjab Labour Appellate Tribunal and the same was dismissed on 21‑12‑1988, whereafter writ petition of the appellant was held as having abated in the Hon'ble High Court on 10‑11‑1998 and the instant appeal was preferred or 9‑12‑1998.
7. There is no cavil with the settled proposition that since 10‑6‑1997 the date of insertion of section 2‑A in the Service Tribunals Act, 1973, no other forum of Court was clothed with jurisdiction to deal with this matte; except F.S.T., meaning thereby all other forums even including the High Court were rendered incompetent from jurisdictional point of view sing: after 10‑6‑1997 and in view of the provisions of section 6 of the Service Tribunals Act, the appellant was favoured with an additional period of 90 days since after 10‑6‑1997 to approach this Tribunal by preferring the appeal i.e. till 9‑9‑1997, this appeal could have been preferred before this Tribunal and not thereafter. We are not oblivious of the legal proposition that in view of the provisions of section 5 of Limitation Act, appellant could be benefited by way pf c6ndonation with regard to limitation if an application under section 5 of Limitation Act was' accompanying the memo of appeal and the grounds agitated therein found favour with the Tribunal as ultimately the discretion to condone the delay vests in this Tribunal although such discretion is always to be exercised in a judicious manner. Admittedly at the time of filing of this Appeal before this forum no application under section 5 of Limitation Act for condonation of delay was made rather such an application was placed on the record of this appeal for the first time on 11‑1‑1999 i.e. after 33 days of filing of the appeal. It is well‑settled principle that each day of delay is to be reasonably explained to the entire satisfaction of the Tribunal i.e. there must exist sound and reasonable grounds/explanation, which can be legally construed as a valid justification as a result of which the appellant was unable to approach this Tribunal within required period. Now adverting to the grounds taken up in this application firstly there is nothing to suggest from a bare reading of this petition as to why this application was not made promptly on the date of filing of appeal before this forum even otherwise the only reason advanced therein to condone the delay seems to be narration of the facts leading to matter being pursued before Labour Court and Hon'ble High Court. There is no cavil with the proposition that prior te10‑6‑1997 those were the proper forums to take cognizance of the matter but since after 10‑6‑1997 (after insertion of section 2‑A in the Service Tribunals Act), all those forums were held to be debarred from taking up this matter i.e. those forums were divested of jurisdiction. There cannot be two opinions with regard to settled legal proposition that where abatement of appeal/proceedings results as a consequence of operation of law, such abatement becomes operative ipso facto at once and there in no need or legal requirement for obtaining any formal order or declaration from the said forum or Court being seized of the matter and time wasted before those forums thereafter, cannot be availed of by the concerned party under the guise of "pursuing the matter before competent forum" as in fact after abatement of the proceedings such forum cannot be held to be competent or proper forum. The only corollary pursuant to such discussion is that litigation before incompetent forum does not justify condonation of delay. We are fortified to hold so by relying, upon the rules enunciated in the following precedents:
(1) PLD 1983 SC 385;
(2) 1975 SCMR 259;
(3) 1985 SCMR 333;
(4) 1985 SCMR 890;
(5) 1991 SCMR 1841, and
(6) 1997 SMCR 1167.
8. When confronted with this legal proposition, the learned counsel for the appellant maintained that prior to pronouncements made by the Hon'ble Supreme Court in two matters decided on 31‑3‑1998 and 16‑4‑1998, the appellant like‑many other aggrieved persons was groping in the dark as to if at all this Tribunal would be having jurisdiction in the matters relating to the period prior to 10‑6‑1997 and for that reason the appellant hesitated to approach this forum soon after 10‑6‑1997. Even if for the sake of argument (though not conceded) his this contention is taken into consideration, we are constrained to hold that in this particular case, this line of argument will not advance the case of the appellant even an inch towards a valid justification for condonation of delay for the obvious reason that no ground was available to the appellant or his counsel for failure on their part to have approached this forum since after 31‑3‑1998 or 16‑4‑1998 and what was the justification for inordinate delay till 9‑12‑1998.
9. The upshot of above discussion is that there is no valid, ground to accept the application made for condonation of delay, which fails and the appeal, as a consequence being hopelessly time‑barred, is hereby dismissed in limine,
10. Parties to be informed accordingly through registered post.
H.B.T./336/F.S.T. Appeal dismissed.