1. MUSHTAK ALI KAZI (CHAIRMAN):---The appeal under section 4 of the sand service Tribunal ACT, 1973 is directed against the dismissal of the appellant as Executive Engineer, Irrigation Department under Martial Law Regulation No, 58 of 1969, The appellant had joined the Irrigation Department on 20th January, 1951 as a Supervisor.
2. Subsequently he received his due promotions and at the time of the impugned order, he was posted as Executive Engineer Northern Jamrao Division, Mirpurkhas. On 20th January, 1970 the appellant was served with a charge-sheet signed by Deputy Secretary, S &GAD for Chief Secretary, Government of West Pakistan. This charge sheet was communicated to the appellant by Martial Law Administrator Zone 'A'. It contained 9 charges namely ; that the appellant purchased stores and Abkalani material in excess of requirements incurring an excess expenditure of Rs, 9,70,186.
3. That he during the service tenure acquired assets and properties in his own name and in the names of his father and brothers which were disproportionate to his known sources of income.
4. That in his declaration of assets he had concealed his bungalow in Satellite Town Mirpurkhas and also 'A' type bungalow in Latifabad. The appellant was thus charged with corruption, misconduct and inefficiency. Subsequently he was dismissed from service on 29th May, 1970 by a notification issued by the Chief Martial Law Administrator and President of Pakistan under Martial Law Regulation No, 58.
5. The appellant then preferred an Appeal before the Federal Service Tribunal being Appeal No, 566 (K)/74. This appeal was admitted for regular hearing and by an order dated 10th December, 1976 the said appeal was dismissed on the ground that the appellant was in service of the Irrigation Department-Provincial subject-and he was not a civil servant qua the Central Government and therefore the Federal Tribunal had no jurisdiction to entertain the appeal.
6. The appellant then remained quiet as according to him the general view was that the Service Tribunal had no jurisdiction in matters pertaining to dismissal of civil servants under Martial Law Regulation No, 58 of 1969. Ultimately the appeal of Mr. Yameen Qureshi was heard in the Supreme Court and it was observed that the Service Tribunal had jurisdiction in such cases and the validation of laws, contained in Article 270 (4) of the Constitution of Pakistan, 1973, did not constitute a bar in way of entertainment of an appeal on merits before a Tribunal of exclusive jurisdiction established by the Constitution under the Service Tribunals Act.
7. The appellant then preferred this appeal on 21st April, 1980 and he also annexed to this appeal an application under section 5 of the Limitation Act for condonation of the delay. After hearing the Advocate for the appellant the Tribunal consisting of Mr. Justice (Rtd.) Ghulam Rasool Shaikh as Chairman and Mr. G. A. Mughal as Member admitted the appeal on 9th October, 1980 though no orders were passed on the application under section 5 of the Limitation Act.
8. The learned A. A.-G. Has filed his objection to the application of the appellant under section 5 of the Limitation Act and these objections are accordingly being heard as preliminary objections. It has been contended by the A. A.-G. That the Service Tribunal having been established by a notification dated 24th November, 1979, the appellant dismissed under M. L. R. 58 of 1969 could prefer the appeal within 12 months of the establishment of the Tribunal till 24th November, 1974. That since the appellant had filed his appeal before a wrong forum namely ; the Federal Service Tribunal, he could have moved this Tribunal as soon as his said appeal was disuissed on 10th December, 1976 ; but he took no further action until the decision of the appeal of M. Yameen Qnreshi by the Supreme Court on 22nd January, 1980. That even thereafter the appellant waited for 3 months longer and filed this appeal on 21st April, 1980. That it could not be said that the appellant was misled by any practice of the superior Court for pressing into service the explanation to section 5 of the Limitation Act. That under the circumstances the present appeal is not maintainable being barred by time.
9. It has been argued by Mr. Aftab Ahmed Shaikh on behalf of the appellant that since the appeal had already been admitted, the question of the appeal being barred by limitation stood decided and closed and the said question could not be reopened at this stage. It may however be pointed out that the admission was presumably subject to all just exceptions. No order had been passed on the application under section 5 of the Limitation Act ; but even if such an order had been passed ex partewithout notice to the respondents, the respondents have a right to challenge the same at the time of regular hearing. In Aon Muhammad v. Rehabilitation Commissioner and another , it was held by a Division Bench of that Court that there could not be an ex parte condonation of such delay and the persons could take exception thereto. The relevant portion reads as under :- " It is well-settled that there could not have been ex parte condonations or extension of time and even in cases where ex parte condonations are made, the affected parties can always on coming to know of such orders, take exception thereto and claim that the matter is barred by time, the extension of time, if any is illegal and that effect to plea of limitation should be given. Ex parte condonations of delay would be illegal being opposed to violation of the principles of natural justice, as well as against law. In the case of Krishanasami Panikondar v. Rarnasarni Chattir and others AIR 1917 P C 179 their Lordships of the Privy Council observed as follows with regard to a practice of admitting appeals or condoning delays ex parte. There are various authorities to the effect that even after admission of the cases ex parte, the Court subsequently hearing the matter could dismiss the same as barred by time. Reference may be made to Manick Dukandar v. Plain Bullah Sircar 2 C W N 461 and Mulna Ahmad v. Krishanji Ganesh Codbale I L R 14 Born. 419 where it was held that where a District Judge admits ex parte appeal filed beyond time, and the appeal is referred for disposal to a subordinate Judge with appellate powers, the subordinate Judge has the1 power to consider whether the delay in presenting the appeal is sufficiently accounted for Similarly, in Baichand Prohit v. Sir Beloychand Mahtab Mahar:II& dhiraj of Burdawon AIR 1942 Cal. 606 it was held that an order granting application under section 5 of the Limitation Act for extending the period Limitation for filing a Letters Patent Appeal uerler clause (15) without giving the respondent an opportunity to present his case with regards to the prayer of the appellant ,for extension of the period of Limitation is irregular."
10. Similar view was taken in Mr. Kadir v. Mst. An:tut Hussain and others .
11. It has been argued by Mr. Shaikh that the provisions of Limitation Act including section 3 are not applicable to Service Tribunals. A matter cannot, therefore, be dismissed as time barred if it pertains to special or local laws. In this respect the arguments advanced by Mr. Aftab Shaikh are two-fold. Firstly according to him section 29 (2) of the Limitation Act extending application of the Act to special or local enactments is conditional and it provides that where any special or local law prescribes a period of limitation different from the period prescribed by the first schedule, the provisions of section 3 shall apply. Mr. Shaikh has argued that the period of 30 days prescribed in the Service Tribunal Act, for appeal is similar to the period prescribed in the First Schedule for civil appeal to the District Judge. Mr. Shaikh has not been able to explain why he has chosen the period of 30 days applicable in case of the Court of the District Judge since the Service Tribunal cannot by any stretch of imagination be considered parallel to the Court of the District Judge. Moreover the Service Tribunal Act prescribes period of 30 days 4 plus 90 days more if a departmental appeal has been filed. The very scheme of the Act is quite different and section 29(2) therefore very much applies to this special Act.
12. It has been argued that under section 6-A of the Sind Service Tribunal Act, the provisions of sections 5 and 12 of Limitation Act, 1908 have been made applicable to service appeals. Therefore by implication, the remaining sections of Limitation Act have been made inapplicable. There is, however an express provision under section 29 (2) (a) of the Limitation Act that the provisions of Limitation Act shall apply unless they are "expressly excluded by such special or local law". In this case there is no such express exclusion of the other provisions of the Limitation Act and it cannot, therefore, be interpreted that their application was meant to be excluded.
13. It has next been argued that since the new exposition of law by the Supreme Court in the recent decision in case of M. Yameen Qureshi v. Islamic Republic of Pakistan , it has been laid down, that the Service Tribunals have jurisdiction to entertain appeals in M. L. R. 58 cases for decision on merits ; this charge of law could be pleaded as a ground tor condonation of delay. That the appeal was not filed earrlier due to misleading decisions of the Tribunals and the practice prevailing in the Service Tribunals in the earlier days. It has been argued firstly that the jurisdiction of the Tribunal in such matters remained in controversy until the above decision of the Supreme Court and secondly that the dismissal order was an action taken under Martial Law Regulation No, 58 of 1969 'which regulation was illegal and the action taken was a nullity in law. That the provisions of section 5 need not be examined at all if the impugned order is without jurisdiction and void being a fraud upon the statute. For the first ground reliance has been placed on the decision of Sh. Muhammad Ashraf v. Muhammad Irshad Khan and for the the second ground the decisions cited are Hussain flux v. Settlement Commissioner and Abdul Rauf v. Abdul Hameed Khan .
14. The entire question which is being agitated has been thoroughly dealt with in the decision of Supreme Court in M. Yameen Qureshi v. Pakistan. In that case the appellant had come in appeal against the order of the Central Service Tribunal dismissing the petition of the appellant on the ground of ouster of jurisdiction. It has been shown in this decision by reference to the earlier authorities namely Asma Jilani case , Zia-ur-Rehman case , Saeed Ahmad Khan case and the relevant Articles in the Constitution, that in respect of action taken under Martial Law Regulation 58 of 1969 the following position emerges :-2 3 4 5 6 7 8 9
(I) Under Article 270 (3) of the Constitution of 1973, validity of such instruments could not be called in question in any Court on any ground whatsoever for a period of 2 years from the commencing day of the Constitution of 1973.
(ii) Martial Law Regulation 58 of 1969 was not validated during this limited period of 2 years and the same instrument had lapsed.
(iii) The position with regards to the orders made, proceedings taken and acts done under regulation 58, however, had been saved under clause (4) of Article 270 under the doctrine of necessity. All transactions past and closed had been condoned.
(iv) Such immunity, however, did not extend to act and actions which were, without jurisdiction, Coram non judice or mala fide.
(v) That the orders made incompetently without jurisdiction would not be covered by the ouster clause and the Service Tribunal, therefore, had jurisdiction to decide all questions of law and facts as mala fide orders were not immune from being challenged.
15. In the above case under decision, no question regarding limitation was involved. The appeal was filed before the Service Tribunal in time, and from the decision of the Tribunal, the appeal was preferred to the. Supreme Court under Article 212 of the Constitution. The question, therefore, arises whether the present appeal to the Tribunal filed for the first time, after more than 10 years of the order of dismissal, can be admitted by condoning the delay, because of the new exposition of law by the Supreme Court, that the orders passed under M. L. R. 58, can be c challenged before Service Tribunal on the ground of want of jurisdiction and mala fides. The trend of the decisions of the Courts on this question has been that, a new statement or exposition of the law by the superior Courts is not sufficient cause for excusing such delay. And so, where a party against whom a decision is given is apparently satisfied for the time being, but subsequently a new statement or exposition of law favorable to his case having been given in a judgment in another case, he comes to prefer an appeal or an application for review, his delay will not be excused on that ground. (H. C.
16. Mitra's Commentary on Limitation Act, 15th Edition, page 71). Mown I Bewa v. Soorendra Nath . In Basdeo v. Murlidher Sing , Agarwal, J. Observed:-- "It was held in 10 W R 178 that a new statement of the law by the High Court was not sufficient excuse for delay in applying for a review of judgment, that is still less an excuse for delay in appealing against a judgment. I am therefore of opinion that the fact that this Court in March, 1942, was of opinion that a second appeal lay is no ground for excusing the delay in filing the appeal Had the present petitioners appealed, their appeal would have been dismissed on the ground that no appeal lay and they could not apply for review of the judgment dismissing their appeal. A new ruling is no ground for reviewing a previous judgment. If it were, such inconvenience and confusion would be the result. If a judgment be liable to be reviewed on the ground of a new ruling, it can be reviewed even if the new ruling is made a long time after the decision of the case and there should be no difference in principle on reviewing a judgment after a month or two or after forty or fifty years. If a judgment can be reviewed after such a long time, the title of many persons would be insecure."
17. The fact that a Court takes a different view of law in a subsequent case is no ground for reviewing the judgment in a prior case (AIR 1957 Raj. 165 ; I L R 1956 Raj. 6).
18. In PLD 1976 Lab. 1304 cited by the learned counsel on behalf of the appellant the question related purely to limitation for filing application for setting aside abatement caused due to non-joining of the legal representatives of the deceased within 90 days. The practice of the Court had led to the belief that the matter had abated until the decision of the Supreme Court holding otherwise. The decision cited falls under section 5 of Limitation Act Explanation ; that the fact that the appellant or applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of this10 11 section. The requirements are that the appellant should have been misled by an order, practice or judgment of the High Court and this should pertain to the ascertaining or computing the prescribed period of limitation. In the present case the judgment of the Supreme Court above referred to in M. Yameen Qureshi's case is not in respect of any condonation of period of limitation but deals with entirety different question concerning jurisdiction. The contention of the appellant is that he was misled by the practice of the Service Tribunal which is not the same thing as a practice or the judgment of the High Court. The decision of Lahore High Court quoted by the learned counsel has, therefore, no application to the present case.
19. Even otherwise in the present case the judgment of the Supreme Court was announced on 22nd January, 1980, and even thereafter the service appeal has been filed after a delay of three months, There can be no explanation at least for this period even presuming that the new exposition of law could be considered a sufficient cause.
20. The other ground of the order being a void order and a nullity in law has also no application to the present case. Under Article 270 (4) of the Constitution of Pakistan, 1973 such transactions past and closed have been saved and cannot be re-opened. The appellant through out his memorandum of appeal had not challenged his dismissal In the ground of mala fides. All that he stated was that the order of dismissal was against equity, justice, good conscience and fair play. That sufficient opportunity had not been given to him for being heard as the charges o corruption, misconduct and inefficiency had not been proved. That the D motive for bringing these charges was therefore, to take revenge. It has not been shown who harbour this motive and why the person concerned would take a revenge against him. Allegations of mala fides should not be vague. It must be pleaded with particularity and no enquiry is to be launched merely on the basis of vague and indefinite allegations, nor should the person alleging mala fides be allowed a roving enquiry into the files of the Government for the purpose of fishing out some kind of a case. As held in the case of Federation of Pakistan v. Saeed Ahmed Khan the onus lies entirely upon the person alleging mala fides to prove the same. It cannot therefore be pleaded that the appeal be admitted on the ground of the dismissal being void on account of alleged mala fides.
21. The cases cited in this connection, have therefore, hardly any application. The Lahore ruling referred to on this point, was concerning a case under the Settlement Act, in which the order had been passed in contravention of the express provisions of the law and Settlement Scheme No, 4 and was prima facie without jurisdiction. In the Supreme Court case cited on this point, the act of the Executive or Administrative Officer was without jurisdiction and illegal on the face of it. It was not an act done under the enactment but an act purporting to be done under an enactment being prima facie an act without jurisdiction. The Supreme Court held that the mala fide act by its nature is an act without turiss diction. No Legislature when it grants power to take action or pass an order contemplates a mala fide exercise of power. A mala fide order is a fraud on the statute. A mala fide order means one which is passed not for the purpose contemplated by the enactment granting the power to pass the order, but for some other collateral or ulterior purposes.
22. It could not be said in the present case that the dismissal of the appellant was under the cover of M. L. R. 58 for some other collateral or ulterior purposes and was a fraud on the statute. It is not open to a party just to allege mala fides so as to bring his case for a hearing even though barred by limitation.
23. Thus the present appeal having been filed against the order of dismissal passed nearly 10 years ago is clearly barred by a limitation and the delay cannot be condoned on the above grounds urged by the appellant. The appeal is accordingly dismissed as time barred but no order is made as to costs in the circumstances of the case.
24. PLD 1966 Lab. 319 PLD 1971 Lab. 537 PLD 1980 SC 22 PLD 1976 Lab. 1304 PLD 1969 Lab. 1039 PLD 1965 SC 671 PLD 1972 SC 139 PLD 1973 SC 49 PLD 1974 SC 151 10 W R 178 2 Ben& LR AC 184-n A 1 R 1942 Oudh 447 PLD 1974 SC 151