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Petitioner: NAZAR MUHAMMAD QURESHI VS Respondent: ISLAMIC REPUBLIC OF PAKISTAN
1988 S C M R 995
1988 S C M R 995
Present: Abdul Kadir Shaikh, S. A. Nusrat and Zaffar Hussain Mirza, JJ
NAZAR MUHAMMAD QURESHI‑‑Petitioner versus ISLAMIC REPUBLIC OF PAKISTAN and others‑‑Respondents
Civil Petition for Leave to Appeal No.104‑K of 1984, decided on 23rd December, 1987.
(On appeal from the judgment of the High Court of Sind, dated 15‑8‑1983, in C . M . A 1 of 1985 and C . R . 57 of 1976, decided on 3rd June, 1982).
(a) Service Tribunals Act (LXX of 1973)‑‑
‑‑‑S.6, proviso‑‑Service Tribunals Ordinance (XV of 1973), S.6, proviso‑‑Constitution of Pakistan (1973), Arts.212(3) & 185(3)‑ Abatement‑‑Service matter‑‑Effect of Service Tribunals (Amendment) Act (XXXI of 1974) on pending suits/appeals‑‑Withdrawal of appeal before Service Tribunal under wrong legal ad vice‑‑Condonation of delay‑‑Leave to appeal granted to consider the question whether the petitioner's appeal was withdrawn under a misconception of law and whether the order of dismissal of his appeal before Service Tribunal was liable to be set aside on that ground.
Federation of Pakistan v. Muhammad Siddiq P L D 1981 S C 249 rel.
(b) Constitution of Pakistan (1973)‑‑
‑‑‑Arts.185(3) & 212(3)‑‑Leave to appeal, grant of‑‑Misconception of law‑‑Leave to appeal granted to consider question whether petitioner's appeal was withdrawn under a misconception of law and whether the order of dismissal of his appeal before the Service Tribunal was liable to be set aside on that ground.
Federation of Pakistan v. Muhammad Siddiq P L D 1981 S C 249 ref.
Petitioner in person. Nemo for Respondents. Date of hearing: 23rd December, 1987.
ORDER ZAFFAR HUSSAIN MIRZA, J.‑‑The petitioner who was an employee of the Government of Pakistan was compulsorily retired from service on the ground of inefficiency on 30th April, 1959. The petitioner challenged the order of his compulsory retirement by filing a suit in the Court of VII Civil Judge, First Class, Karachi.
2. In the events that happened while the suit was still pending adjudication in the civil Court the Service Tribunals Ordinance XV of 1973 was promulgated whereby Service Tribunals were established with exclusive jurisdiction in respect of the matters relating to the terms and conditions of service of civil servants, including disciplinary matters. This Ordinance will be referred to for the sake of convenience as the said Ordinance. Section 6 of the said Ordinance provided that, inter alia, suits regarding any matter within the jurisdiction of the Tribunal pending in any Court immediately before the commencement of the Ordinance shall abate forthwith. In view of this explicit provision the learned Civil Judge before whom the suit was pending passed order dismissing the suit as having abated on 6th November, 1973.
3. As, however, by the proviso to section 6 of the Ordinance any party to the suit which abated under section 6 was entitled to prefer an appeal before the Service Tribunal, the petitioner filed such an appeal before the Federal Service Tribunal, Islamabad.
4. But before the said appeal could be decided the said Ordinance was amended by Act XXXI of 1974 (hereinafter referred to as the 'Amending Act'), whereby it was provided as under:‑
"No appeal would lie to a Tribunal against an order or decision of a departmental authority made at any time before 1‑7‑1969."
The learned Tribunal taking the view that since the impugned order passed against the petitioner challenged in the appeal was of a date prior to 1st July, 1969 the Service Tribunal had no ‑jurisdiction to entertain the appeal, the petitioner withdrew the same and it was accordingly dismissed. Being faced with this situation where both forums refused to adjudicate upon his grievance, he sought the revival of the proceedings of the suit, but his request was rejected by the learned Third Additional District Judge Karachi, in whose Court the suit was originally pending at the time it was dismissed as abated.
5. Finally the petitioner filed a revision before the Sind High Court in which the learned Single Judge of the High Court held that the suit had abated by operation of law, but in view of the Amending Act the Service Tribunal also did not have jurisdiction to entertain the appeal. The learned Judge further held that the proceedings of the suit could have been revived provided a proper application for review under Order 47, Rule 1, C . P. C . was filed but the application filed by the petitioner was barred by time and the delay was not sufficiently explained. Accordingly the revision filed by the petitioner was dismissed by judgment dated 3rd June, 1982.
6. Being aggrieved by the aforesaid order the petitioner filed a petition for leave to appeal in this Court with an application for condonation of delay on the ground that he was diligently pursuing remedy before Courts which were, however, fruitless for want of jurisdiction.
7. As the petitioner was appearing in person he was unable to appreciate the intricacies of the law which has bearing on the facts of this case. It seems to us that the learned Service Tribunal as well as the learned Judge in the High Court did not advert to the law laid down by this Court in Federation of Pakistan v. Muhammad Siddiq P L D 1981 S C 249, in which the effect of the Amending Act was considered and it was held that upon the abatement of a suit under the unamended law if an appeal is filed before the Service Tribunal, such appeal could not be nullified and become not maintainable, by virtue of the subsequent amendment retrospectively. The effect of law declared is that such an appeal could not be dismissed on the ground that the jurisdiction of the Service Tribunal was in any way affected by the subsequent amendment.
8. When this law was pointed out to the petitioner he has made an application that his petition may be treated as a petition against the order of the Service Tribunal dated 1st January, 1975, whereby the appeal of the petitioner was dismissed by the Service Tribunal. He has also submitted a fresh application for condonation of delay on the ground that he had withdrawn the appeal before the Service Tribunal as a result of wrong legal advice given to him, on the basis of which he took proceedings for the revival of his suit.
9. After considering the above we feel that the true interpretation of the effect of the amending law was not known to the petitioner or his counsel at the time of the disposal of his appeal by the Service Tribunal as the judgment of this Court came subsequently. The true legal position was not even pointed out to the learned Judge in the High Court. In these extraordinary circumstances we are inclined, in the interest of justice, to allow the request of the petitioner and order that the petition shall be converted and treated as one under Article 212(3) of the Constitution and also condone the delay on the principle of section 14 of the Limitation Act, subject to just exceptions at the hearing of the appeal.
10. Leave is accordingly granted to consider the question whether the petitioner's appeal was withdrawn under a misconception of law and whether this order of dismissal of his appeal before the Service Tribunal is liable to be set aside on that ground.
M.I. /N‑59/S Leave granted.