1. ABDUL WALT MAKHDOOM (CHAIRMAN).-This appeal had been filed on 29-10-1976. The appellant had been dismissed on 19-2-70 after an enquiry having already been allegedly acquitted of those allega--tions by Saadat Ali Shah another Enquiry Officer. He had after the order of dismissal was passed against him, appealed to D. I.-G., Karachi who dismissed the same on 30-4-70 though he knew fully well that the appellant and Inspector Zafar Iqbal had been held not guilty in an earlier enquiry on the very same facts. A revision petition was also dismissed and so also a subsequent mercy petition followed by another mercy petition addressed to the Home Secretary Government of Sind (dated 10-12-1970). Having failed in all attempts to get relief from his Department he filed a Constitutional Petition on 26-1-1973 under Article 201 of the Interim Constitution of Pakistan in the High Court of Sind & Baluchistan. He went on pursuing this remedy when the present Constitution namely the Constitution of Islamic Republic of Pakistan came in force on 14-8-1973 and as a result thereof the petition of the appellant was treated as a petition under Article 199 of the Constitution of Islamic Republic of Pakistan. Subsequently through an Ordinance issued in view of Article 212 of the Constitution, Service Tribunals were established having exclusive jurisdiction in respect of matters relating to the terms and conditions of service of the Civil servants of the Government of Sind. Such a Tribunal was established in Sind on 24-11-1973. This Ordinance was replaced by an Act which came into being on 5-12-1973 and the rules made there under were framed on 19-8-1974.
2. Those incidents have been narrated as the appellant's case is that in spite of the establishment of the Tribunal he had been pursuing his remedy before the High Court in good faith on the ground that since according t him the order of dismissal was prima facie mala fide, the High Court was still competent to interfere in his case and that (according t him and his Advocate Mr. Sami Ahmad) the ouster clause appearing in clause (2) of Article 212 of the Constitution would have no application. The learned counsel had argued vehemently on 24-3-1977 and stated that he (counsel) was of the view that his petition before the High Court had not abated on account of the mala fide on which his case was based. He had reiterated that according to him the order of dismissal passed against the appellant was mala fide as distinguished from illegal and hence as per law laid down in PLD 1973 SC 49 and PLD 1974 SC 151, the High Court was still competent to adjudicate in the matter. But the High Court took a different view and observed that such a point (mala fide) could be agitated before the Service Tribunal. He had contended that the view of his may have been erroneous but then it was on that account in spite of the Service Tribunal Act, that he had continued to pursue the remedy before the High Court. He went on to say that even Courts corrected themselves In that case his holding a particular view which may have been found to be erroneous subsequently by a judicial pronouncement, was at any rate a sufficient cause for condonation of delay under section 5 of the Limitation Act. The learned A. A: G. Who was beard in this behalf had stated that section 14 of the Limitation Act was not applicable and that while the Tribunal had discretion under section 6-A of the Sind Service Tribunals Act to condone the delay that discretion should not be exercised arbitrarily He had further urged that Limitation should run from 6-5-1973.
3. I have read the above case-law and after considering the matter thread--bare I am of the view that though it could not be denied that the Limitation would ordinarily start running from 6-5-1974 as urged by the learned A. A.-G. There are in the instant case grounds to feel that there is sufficient cause for condonation of delay. Of course holding of erroneous views cannot penal. At any rate it should not inflict any punishment on a person mph was helpless in the hands of his Advocate who was holding that (erroneous view) as argued by him on 24-3-1970. The affidavit filed in support of the allegation under rule 8(t) of the Sind Service Tribunal (Procedure) Rules read with section 5 and 14(2) of the Limitation Act is very much clear on the points urged by Mr. Sami Abmad. Furthermore it is stated in the affidavit that his constitution petition was disposed of on 15-9-1976 but he had gone to Punjab with an urgent work and had come to know of the dismissal of his petition on 27-9- 1976. On the next day he had made an application for copies which application was pending in the High Court when he moved another application on 30-9-1976 for obtaining certified copies of (1) the order dated 19-9-1969 of Mr. Saadat Ali, S. P. (2) order dated 19-12-1969 passed by D. I,-G. (3) report by Mr. Saadat Ali dated 16-12-1%9 The latter application was disposed of on 10-12-1976 by the High Court and it having been granted certified copies of documents were granted to him on 28- 10-1976. The appellant had then come to this Tribunal on 29-10-1976. This affidavit has not been controverted by any counter affidavit and we have nothing on record to discard it.
4. We have of course been holding that the Limitation runs from 6-5-1974 and we have actually dismissed many such matters in which the appeal is filed after this date but then in view of what has been stated above it is our considered view that in the instant case there are grounds for condoning the delay. It is settled law that the facts in different cases can never be identical and that each case will have to be tackled in the light of the fact of that particular case only. The application under rule (i) etc. Is therefore allowed and the delay is condoned in the exercise of the discretion admittedly vested in us. As on the face of it there appears to be no other hitch in the way of admission of the matter we order it be admitted to regular hearing. Issue notices to respondents.
5. Costs. Hearing 23-5-1977.
6. ABDUL KADIR (MEMBER)-I respectfully disagree with my learned colleagues on the question whether the delay in filing the present appeal should be condoned under section 5 of the Limitation Act. The impugned order against which the present appeal is directed was passed on 19-2-1970 dismissing the appellant from service. The appellant presented the Constitution Petition in the High Court Sind & Baluchistan on 26-1-1973. While this petition was pending in the High Court, the Services Laws became operative with effect from 6-5-1974 on which date the petition before the High Court abated by operation of section 6 of Sind Service Tribunals Act, 1973.
7. It is contended that through bona fide mistake which is entirely owned by the learned counsel of the appellant, the matter was pursued in the High Court and the appeal was not filed in this Tribunal within the period prescribed i. e. Days from 6-5-1974 or even within 12 months from the date of the Constitution of this Tribunal. The matter continued to remain on the file of the High Court till the same was disposed of by an order of D.B. Dated 15-9-1976 wherein it was held that the petitions stood abated when the Service Tribunal was constituted and the High Court had no jurisdiction in the matter.
8. The High Court's decision was itself based on the ruling of Hon'ble Supreme Court reported in PLD 1976 SC 195.
9. In fact even if it be accepted that the counsel for appellant had continued the proceedings in the High Court through a bona fide mistake, such misconception of the Advocate should stand dispelled as soon as the Supreme Court pronounced the verdict in the case of Masud Ahmad which ruling was reported in January part of PLD. The learned counsel for the appellant had neither pleaded ignorance of this ruling nor it could presumed that he was unaware of this pronouncement of such an important legal proposition as propounded by the Honourable Supreme Court If a all misconception was lurking in the mind of the learned counsel, the same had no basis to continue after January 1976. In the present case the point of limitation taking the best case of the appellant into consideration would start from January 1976 if not earlier. The appellant and his counsel have offered absolutely no explanation for sleeping over the matter for a period of nearly 8 months from January 1976 to 15th September 1976.
10. There is one more aspect of the case touching the point of limitation. Section 6 of the Sind Service Tribunals Act does not provide for filing an appeal in the same manner as appeal under section 4 of, the same Act. Under section 4 the appeal is directed against the impugned order copy whereof is necessarily to be filed along with the appeal. As against this under section 6 an appeal is to be filed raising the issues before this Tribunal which were subject of adjudication before the Court when the matter was already pending before abatement. Consequently after 15-9-1976 appeal could have been filed before the Tribunal within 30 days for which appeal production of documents was not necessary. Even the appellant had not applied for copies of certified copies of documents, he could have kept memo of the appeal ready for presentation immediately on receipt of documents from the High Court. He received certified copies as pleaded by him on 20- 10-1976 but he chose to file the present appeal on 29-10-1976. The delay of these 9 days has also not been explained by the appellant.
11. It is established law that for condoning delay, the delay for eve single day is to be explained. Since the appellant has offered no explanation for the delay in not filing appeal after January 1976 to 15- 9-1976 and against from 20-10-1976 to 24-10-1976 the appellant has failed to offer sufficient cause for delay in filing the appeal before this Tribunal. The application under section 5 of limitation Act merits to be dismissed.
12. Before concluding I must refer to a plea raised by the counsel for the appellant at the bar that the appellant may be given benefit of provisions of section 14 of Limitation Act. Section 14 of Limitation Act applies to suits but not to appeals but even if an analogous benefit be considered in favour of appellant, the same would not be available to the appellant because by no stretch of arguments it could be contended that from January 1976 onwards the appellant was prosecuting the proceedings in the High Court diligently. On the contrary the negligence of appellant and his learned counsel appears to be apparent when after the pronouncement of the verdict by the Honourable Supreme Court, both slept over the matter. Such a conduct cannot be considered as pursuing the remedy in the wrong forum with due diligence. The same reasoning will also cover the period from 20-10-1976 to 29-10-1976.
13. The leaned counsel for appellant has sought the discretionary powers of the Tribunal to be exercised in favour of the appellant in condoning the delay. The discretion is to be exercised judiciously and not capriciously or arbitrarily. The discretion is to be exercised on principles of justice and equity when the appellant satisfied the Tribunal that there was no negligence on his part but in the present case the negligence is so gross that the same cannot be condoned under the cover of discretion.
14. For these reasons, I consider the application under section 5 of Limitation Act to merit dismissal.Application dismissed.