Tassaduq Hussain Jillani, J.--The appellant, while serving as Executive Director (Technical) FATA Development Corporation, Peshawar, was proceeded against under the National Accountability Ordinance, 1999, on charges of corruption and corrupt practices wherein the appellant entered into plea bargain after depositing of 21 million Rupees and secured his release in terms of Section 25 of the National Accountability Ordinance. As a consequence of the said plea bargain, the Department issued a show cause notice to him for awarding major penalty, which led to his dismissal from service vide order dated 19.08.2002. He filed representation before the competent Authority of the Department i,e, the President of Pakistan, on 05.09.2002, which according to the appellant was not responded to till 26.02.2009, whereafter he filed appeal before the Service Tribunal on 19.03.2009.
The learned Tribunal dismissed the appeal as time barred.
2. Leave to appeal was granted by this Court in terms of order dated 13.04.2010.
"Inter alia contends that in dismissing the appeal, the learned Service Tribunal has not appreciated that petitioner had filed the appeal against the order of the appellate authority within time and that the impugned judgment is not sustainable.
2. Having heard learned counsel for the petitioner at some length, leave is granted to consider inter alia whether the judgment of the learned Tribunal is sustainable in law in view of the contentions raised."
3. The learned counsel appellant submitted that in terms of Section 10 of the Removal From Service (Special Powers) Ordinance, 2000, the appellant could file the appeal within 30 days of the order passed on the representation filed by him. A close reading of the said provision, according the learned counsel, dermonstrates that an aggrieved civil servant has two remedies i,e, he can file the appeal in terms of the afore referred period prescribed or he can wait for the communication of the final order on the representation filed and within 30 days of the communication of the said order, he can file the appeal. In the instant case the order of dismissal of his representation was conveyed to him on 26.02.2009 and within 30 days i,e, on 19.03.2009 he filed the appeal which was within time and could not have been dismissed as time barred. In support of submission made by the learned counsel, he relied upon ZAFAR IQBAL v. WAPDA (1995 SCMR 16 ), CHIEF ENGINEER (NORTH) v. SAIFULLAH KHAN KHALID (1995 SCMR 776) ANWAR MUHAMMAD v. GENERAL MANAGER PAKISTAN RAILWAYS (1995 SCMR 950) and MUHAMMAD RAFIQUE v. PAKISTAN TELECOMMUNICATION COMPANY LTD. (2008 SCMR 551).
4. The learned counsel for Respondent No, 3, on the other hand, defended the impugned judgment by submitting that the appellant could file the appeal within the prescribed 30 days in terms of Section 10 of the Removal From Service (Special Powers) Ordinance, or within 90 days of the representation filed, if no order has been passed on the said representation. In support of his submission, the learned counsel relied upon TANVEER HUSSAIN v. DIVISIONAL SUPERINTENDENT PAKISTAN RAILWAYS (PLJ 2006 SC 1092 / PLD 2006 SC 249) and SECRETARY HEALTH, GOVERNMENT OF PUNJAB v. DR. SHAHZAD ALI BUKHARI (2004 PLC (CS) 483).
5. The learned Attorney General for Pakistan, who was called to assist the Court, submitted that the learned Tribunal proceeded under the impression that the time for the purpose of limitation period had to computed in terms of Section 4 of the Service Tribunals Act, 1973, whereas the relevant provision in the instant case was Section 10 of the Removal From Service (Special Powers)
Ordinance, which specifically provides that the civil servant aggrieved of an order of departmental authority could either file an appeal within 30 days or if he had filed representation, he could file appeal within 30 days of expiry of 60 days of filing of representation. The appellant filed appeal on 19.03.2009, which was hopelessly barred by time and rightly dismissed by the Service Tribunal.
6. We have heard the learned counsel for the parties and the learned Deputy Attorney General for Pakistan and have gone through anxious consideration to the submissions made.
7. Before dilating on the issue raised, it would be pertinent to refer to the relevant provisions prescribing the period of limitation for filing of the appeal under Section 4 of the Service Tribunal Act, and under Section 10 of the Removal from Service (Special Powers) Ordinance, which read as follows:-- {{TABLE}} Section 4 the Service Tribunals Act, 1973.Sections 9 and 10 of the Removal From Service (Special Powers)
Ordinance, 2000.
Appeal to Tribunal.--(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 with six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal.
Provided that: a. where an appeal,Section 9: Representation.-- A person on whom a penalty is imposed under Section 3, may, within fifteen days from the date of communication of the order prefer a representation to the Prime Minister or such officer or authority as the Prime Minister may designate: Provided that where the order has been made by the Prime Minister such person may, within_ the aforesaid period, submit a representation to the President. review or representation to a departmental authority is provided under the Civil Servant Act, 1973 (LXXI of 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 not preferred; no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade; and i. no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the Ist July, 1969.
(2) Where the appeal is against an order or decision of a departmental authority imposing a departmental punishment or penalty on a civil servant, the appeal shall be preferred:- a. in the case of a penalty of dismissal from service, removal from service, compulsory retirementor reduction to a lower post or time-scale, or to lower stage in a time-scale of a Tribunal referred to in sub-section (3) of Section 3; and b. in any other case, to a Tribunal referred to in sub-section (7) of that section.
Explanation.--In this section, "departmental authority" means any authority, other than a Tribunal, which is competent to make an order in respect of any of the terms and conditions of civil servants.The President, the Prime Minister, or an officer or authority may be designate for the purpose by the Prime Minister, may, on consideration of the representation, and any other relevant material, confirm, set aside, vary or modify the order in respect of which such representation is made.
'Section 10: Appeal.-- Notwithstanding anything contained in any other law for the time being in force, any person aggrieved by any final order under Section 9 may, within thirty days of the order, prefer an appeal to the Federal Service Tribunal established under the Service Tribunals Act, 1973: Provided that where a representation has been preferred under Section 9 but no decision has been received by or communicated to, the applicant or, as the case may be, petitioner, within a period of sixty days of its submission to the prescribed authority, he may prefer appeal to the Service Tribunal within thirty days of the expiry of the aforesaid period. (Emphasis supplied) {{TABLE}]
8. A close reading of Section 4 of the Service Tribunal Act, would show that an aggrieved civil servant has remedies available in terms as under:-- (i)he may file appeal before the Service Tribunal against the final order within 30 days if no departmental appeal, review or representation is provided against the said order.
(ii)where an appeal, review or representation is provided under the rules then he cannot file appeal before the Tribunal unless the aggrieved civil servant has preferred an appeal, review or representation and a period of 90 days has elapsed since the filing of such appeal or review.
9. In terms of the second eventuality, after a lapse of 90 days of filing of the appeal or review or representation he can file the appeal. But there is no specific cut up period for filing the same.
However the appellant was proceeded against under a special law i,e, the Removal from Service (Special Powers) Ordinance, No, XVII of 2000, Section 9 of which provides cutoff date/period of limitation for various -remedies available to a civil servant. A person on whom a penalty is imposed, may within 15 days from the date of communication of the order prefer a representation to the Prime Minister or such authority as the latter may designate and in case the order has been passed by the Prime Minister, person concerned may within the afore referred period submit representation to the President. Section 10 of the Ordinance, stipulates that a person aggrieved of the order passed under Section 9 referred to above, may prefer appeal to the Federal Service Tribunal within 30 days. The proviso, however, spells out that if no decision has been received by or communicated to the person so aggrieved (who has filed representation in terms of Section 9 of the Ordinance) he may within a period of 60 days of its submission (representation) to the prescribed authority prefer an appeal to the Service Tribunal within 30 days of the expiry of the aforesaid period. Unlike the proviso to Section 4 under the Service Tribunal Act, this proviso lays down a cut up period within which he has to file appeal to the Tribunal i,e, "within a period of sixty days of its submission to the prescribed authority, he may prefer appeal to the Service Tribunal within thirty days of the expiry of the aforesaid period".
10. The two provisions are distinct and have to be construed accordingly: The appellant had to file appeal within the period prescribed under the proviso to Section 10 of the Removal from Service (Special Powers) Ordinance, failing which the appeal was time barred. The argument of the learned counsel for the appellant that a civil servant can file appeal within 30 days of the communication of the final order passed on appeal or representation is not tenable. The judgments to which - reference has been made by the learned counsel were cases of appeals under the Service Tribunals Act, and not the Removal From Service (Special Powers) Ordinance.
Under the latter law, a person has 90 days (60 + 30) from submission of representation to prefer an appeal before the Service Tribunal.
11.We have gone through the judgments relied upon by appellant's learned counsel and find that those are of no avail to him because in both these cases, appeals were filed under the Service Tribunal Act, and not under the Removal from Service (Special Powers) Ordinance.
12.In terms of the special law under which appellant was proceeded against and under which he availed the remedy of appeal, cannot be made open ended to mean that till the outcome of the representation is communicated to him, he may not file appeal before the Service Tribunal. This would defeat the very purpose of the law. In TANVEER HUSSAIN v. DIVISIONAL SUPERINTENDENT, PAKISTAN RAILWAYS (supra) the Court was called upon to interfere the same issue that we are seized of i,e, the question of limitation under Section 10 of the Removal from Service (Special Powers) Ordinance, the Court held as follows: "10. It was thus incumbent for the petitioner to have approached the Tribunal within 90 days from 26.03.2002, the date on which he filed/submitted his representation. The petitioner kept waiting for decision of his representation, which was decided on 23.10.2002 by which time the period of 90 days provided in Section 10 of the Ordinance, had already expired. The appeal of the petitioner before the Service Tribunal was clearly time barred. The contention advanced by the petitioner for condonation of delay even if taken to be true would not be of any assistance to him in explaining and over-coming the delay in filing the appeal before the Tribunal"
13.For what has been discussed above, we do not find any merit in this appeal, the same is dismissed with no order as to costs.