' BRIG. (RETD.) ABDUR RASHID (MEMBER).-The appellant, F. E. Siddiqi joined the now defunct Police Service of Pakistan (P. S. P.) on 11th December, 1956. On 13th March, 1972, he was retired under Martial Law Regulation (M. L. R.) 114 but was re-instated under M. L. A. 116 on 15th August, 1973.
2. On 16th October, 1976, the appellant while serving as Director, Narcotics Control Board, Peshawar in the rank of D. I. G. Was served with a show-cause notice for "having a persistent reputation for corruption" and was called upon to show cause within 7 days. The appellant replied to the show- cause notice within the stipulated period. He was, however, compulsorily retired vide gazette notification No, 5/Police/Est. Dated 30th of October, 1976.
3. The appellant submitted his review petition to the President on 15th November, 1976 against his compulsory retirement but received no reply. Subsequent reminders also elicited no response.
4. However, the appellant's reminder dated 8th September, 1977 was treated as an application under M. L.
0. 23 and he was directed to appear before the Review Board. On 15th February, 1978, he was granted an interview by the said Board where he filed an affiadavit dated 4th February, 1978 saying that he had neither applied for the review of his case under M. L.
0. 23 nor would he choose his review petition to the President of Pakistan to be treated as a petition under the said M. L. O. Unless he was assured that in the event of his re-instatement he would not lose the benefit of pay and allowances as well as the seniority and that he reserved the right of appeal to the Service Tribunal against any adverse decision on his review petition dated 15th November, 1976 addressed to the Presider. Consequently, therefore, the order recorded by the Secretary, Review Board read : "During hearing, petitioner has withdrawn petition voluntarily."
5. The appellant, thereafter, continued sending reminders with reference to his review petition of 15th November, 1976. His final reminder of 24th June, 1978 failing to get any response, he came to the Service Tribunal for relief on 20th July, 1978.
6. The appellant's case was heard by the Tribunal on 9th June, 1979 and dismissed vide order dated 20th June, 1979 as the appeal was found to be barred by time by one year and four months with no condonation sought, nor there being sufficient grounds for condonation of delay.
7. The appellant sought special leave to appeal in the Supreme Court from the judgment and order of the Service Tribunal dated 20th June, 1979 (in Civil Special Leave to Appeal No, 184-R of 1979). His case was heard by the Supreme Court on 3rd March, 1980. Concluding paragraph of the Supreme Court judgment dated 3rd March, 1980 read as under : "In seeking leave to appeal the petitioner vehemently urged that he had filed an application for the condonation of delay which was on the record but the Tribunal failed to advert to it and gave its verdict against him in the background of the absence of such application. Accordingly, by order dated 8th of October, 1979, we issued notice to the first respondent and in response to that notice Mr. Shahoodul Haq has appeared today to contest the factual statement made by the petitioner but was unable to deny the filing of such application. In this background as the Tribunal does not appear to have applied its mind to the existence of the sufficient cause in relation to the grounds stated in the application, we convert this petition into an appeal and remand the case to the Service Tribunal, Islamabad, for considering the question of limitation afresh in the light of the application of the petitioner."
8. The case, on remand, was received in the Service Tribunal on 10th May, 1980 (vide Supreme Court No, C. A. 11/80-SCJ). The Tribunal heard the case on 25th June, 190 and ordered that the parties should be prepared both on question of limitation and other issues affecting the merit of the case.
In the meantime, the appellant sought leave to file an amended appeal, The amendment having been allowed and the objections invited from the respondents, the appeal was heard finally on 9th February and 8th March, 1982.
9. The appellant, a legal practitioner, while arguing on the basic issue of limitation relied on sections 18 and 29 of the Limitation Act, 1908. Section 18 of the Act ibid lays down that where any person having a right to institute a suit has been kept away, by means of fraud, from the knowledge or such a right the time shall be computed from the time when the fraud first became known to the injurious person, in this case, the appellant. While adverting to this section, the appellant pleaded that in his affidavit dated 5th June, 1979 which is on record of the Tribunal, he had discovered for the first time that the order of his compulsory retirement signed by Mr. Vaqar Ahmed, the then Secretary Establishment Division was never passed by the President who was the competent authority in this case. In other words, argued the appellant, this was a fraud which became known to him on 5th June, 1979 and that the time for purposes of limitation should count from this date onwards.
10. The import of section 29 of the Act ibid. That "when any Special or Local Law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of section 3 shall apply as if such period was prescribed therefor in that Schedule". A Local Law, we may mention, is the one applicable to a particular part of the country whereas a Special Law deals with a particular subject. The appellant, while relying on section 29 (local laws) argued that in the case of Mehr Muhammad Nawaz v. Government of the Punjab (I) the Punjab Administrative Tribunal has held : "In the absence of any final order, it is not possible to hold that the appeals were barred by time. In fact provision (a) to section 4 allowed the appellants to approach this Tribunal at any time after the expiry of 90 days after the filing of appeal, review, and representation and before the passing of the final order, but the penal consequences with regard to limitation could only be attracted if a final order had been passed."
' On the same analogy, argued the appellant, he kept sending reminder after reminder because the limitation could be attracted only after the President had passed his final order on appellant's review petition of 15th November, 1976.
11. We are, however, of the view that neither of the sections 18 and 29 is relevant. In fact the cause for a review petition had accrued to the appellant immediately after his compulsory retirement on 30th October, 1976 when the order had been implemented. This so-called discovery of fraud has therefore no relevance to the question of limitation in this particular case. Similarly, the views of the Punjab Administrative Tribunal cannot be made binding on us. As is very well known to the appellant, this Tribunal has consistently held the view that an aggrieved civil servant after having waited for 90 days must come to the Tribunal within the next 30 days. Alternatively, however, if he so desired, he could remain away from the Tribunal awaiting the risk of a reply and then seeking relief within 30 days of the receipt of such a reply. In the present case, however, the appellant for reasons best known to him, too the risk of awaiting a reply which he hasn't received to this day and in the process came to the Tribunal 16 long months too late. We are, therefore, of the firm view that the interpretation of section 4 (1) of the Service Tribunals Act, 1973 as given by this Tribunal all along is correct as against that given in the case of Mehr Muhammad Nawaz v. Government of the Punjab. In this connection reference is made to PLD 1954 Lah. 16 and PLD 1964 Pesh. 96, wherein it has been held that each day's delay is to be explained. {{FOOT NOTE}}
(I) 1977 PLC (C. S. T.) 165 {{FOOT NOTE}}
12. The appellant also relied on Punjab Province v. The Federation of Pakistan (1), wherein the learned Court has held that in case of an action being void the question of limitation did not arise.
The issue here was whether the suit was barred by time under section 14 of the Limitation Act. This Article deals with the exclusion of time of proceedings bona fide in Court without jurisdiction. The reading of the subject case together with section 14 of the Act ibid would have given the appellant a benefit only if he had been presenting his case, in good faith, in a Court which could not entertain it for lack of jurisdiction or if he had been so engaged with due diligence in another civil proceeding, whether in a Court of first instance or in a Court of appeal. In our opinion, the appellant cannot be given any benefit as pleaded by him.
13. The appellant also cited PLD 1958 SC 104 wherein it has been held that if, on the basis of a void order subsequent orders have been passed the whole series of such orders, unless legalised fall to the ground. The appellant argued that because the order of his compulsory retirement was void, the question of limitation did not arise. Our candid view, however, is that even if the order was void, it was open to remedy within a specific period under the Limitation Act.
14. In the case of Hussain Bakhsh v. Settlement Commissioner (2) on which the appellant relied was that "if an order is without jurisdiction and void, then it need not be formally set aside and no question would, therefore, arise of holding that the matter cannot be considered on merits on account of any bar of limitation". We did hear the case on merits also even though the learned State Counsel wished us to decide the issue only on the basis of limitation.
15. Another case cited by the appellant is Messrs Conforce Ltd. v. Syed Ali Shah etc. (3). In this case it was argued that because a certain order was void, it could be challenged at any time irrespective of the question of limitation. However, when one reads this judgment carefully one finds that the view held by the honourable Court in this case was that even if it is assumed that a decision was totally illegal, the Legislature had provided remedy. However, the appellant did not avail of this remedy within the statutory time limit in the appeal before us.
16. The appellant also cited Mahmud Alam v. Mehdi Hussain (4) wherein it has been held :- "In case, however, the order or action which is a nullity is to be enforced against the person affected by it, that person at that time will be entitled to challenge the same on the basis of it being a nullity. In such circumstances the cause of action in so far as that person is concerned will arise only when the attempt is made to enforce such an action or order against him and therefore there will be no question of limitation involved, in the sense that the date of order which is a nullity for the purpose of start of limitation will become insignificant."
17. As stated elsewhere by us we hold that the appellant was affected by the order of his compulsorily retirement on 30th October, 1976 and had a cause of action on that very date because the order had {{FOOT NOTE}}
(1) PLD 1956 P C 72 (2) PLD 1969 Lah 1039
(3) PLD 1977 SC 599 (4) PLD 1970 Lah. 26 {{FOOT NOTE}} ' been enforced. Had it remained unenforced the question of limitation would have become meaningless.
18. To summarise the foregoing arguments, the appellant's plea is based on two issues. First, that the order of his compulsory retirement being void there was no question of limitation and second (as in the case Mehr Muhammad Nawaz v. Government of the Punjab) the period of limitation had to reckon from the date he received a final order on his review petition dated 15th November, 1976.
We find, however, that he did come to the Tribunal on 20th July, 1978 without receiving a final reply from the President.
19. It is now appropriate for us to quote authorities relating to a void order, necessary remedial steps and the applicability of statutory provisions of the Limitation in such cases. As held by the learned Supreme Court in the case of Province of East Pakistan v. Abdu Miah (1) : ' there is presumption that official acts have been regularly performed, i. e. With due regard to the relevant formalities and within the relevant powers" unless and until the contrary is proved by the agreed person because the onus of proof rests upon him. (Underlined* portion is our addition).
20. The above view point is further reinforced from Wilover Nominee Ltd. v. Inland Revenue Commissioners (1) wherein it is held that there is the clearly established presumption that statutory duties are duly and properly performed "unless the party attacking it can first produce evidence which will shift the burden of proof off its shoulder."
21. It may be as well to touch briefly on an act or order being void or voidable. "Action which is ultra vires is unauthorised by law, outside jurisdiction, null and void and of no legal effect whatever." And "An order which is ultra vires within any of the ramifications of that order, e. g. Because of unreasonableness or wrong grounds or violation of statutory requirements, can only be void : once the Court condemns it as being void, it is seen to have been destitute of all legal effect from the cut set." And further, "An order which is merely voidable, on the other hand, has legal effect up to the time when it is quashed, and in respect of that period it remains a valid order even after being quashed." (pp. 296-97 Administrative Law (Fourth Edition), 1980 by H. W. R. Wade). The quotation given above strengthen us further in our belief that even if the order of appellant's retirement was void his calling it so privately, it did not become void. He had to prove its voidness before this Tribunal by coming here within time as laid down in the Limitation Act, 1908 read with the Service Tribunals Act, 1973.
22. "Where an act or order is a nullity there is no need for an order to quash it. But unless such an order is obtained, there is no means of establishing its nullity. It enjoys a presumption of validity and will have to be obeyed unless a Court invalidates it. In this sense every unlawful administrative act, however invalid, is merely voidable." {{FOOT NOTE}}
(1) PLD 1959 SC 276 (2) (1973) 1 S L R 1393 *(Here in italics) {{FOOT NOTE}}
23. As held by Lord Radcliffe in Smith v. East Elloe Rural District Council (1). "An order even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead . Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impecable of orders."
24. As held by Lord Diplock "an order would be presumed to be valid unless the presumption was rebutted in competent legal proceedings by a party entitled to sue." He added that "there might be no one entitled to sue, for example, if a statutory time limit had expired."
25. We wish to mention while in passing that the appellant while pleading the existence of his condonation application on the record of the Tribunal which had been overlooked, had had a good opportunity of arguing before the Supreme Court that if an order was void ab initio the question of limitation would not arise. He did not do so for reasons known to him.
26. We would like to lay emphasis on the fact that for writ petitions no period of limitation is prescribed. In writ jurisdiction the question is that of laches or of reasonable period of delay for which the relief by the Court is discretionary. In our opinion, therefore, it is neither realistic nor relevant to cite such cases before the Tribunal where the Law of Limitation has statutory application and cannot be construed otherwise.
27. We are quite clear in our mind that every order of the Government shall be deemed to have been issued strictly within the parameters of the Law unless of course, it is proved to the contrary before a Court or Tribunal. The burden of proof in such cases shall rest upon those who may challenge the validity or legality of an order. To dub an order as void or illegal or to decorate it, as such, by any other similar epithets' without having a recourse to the due process of law, will be nothing more than a fanciful private opinion and will be doubtlessly without) any value whatsoever.
28. The Law of Limitation has statutory binding on this Tribunal. It is not so in writ jurisdiction where the Courts have discretion to condone laches. It is, therefore, not at all relevant to3ite such writ cases and to plead condonation of delay before us. There is a fundamental difference between the two situations which has to be understood. No doubt, we do have powers of condonation of delay but we cannot and do not exercise those powers except in such rare cases where the delay is explained to our satisfaction and we are genuinely convinced that the denial of condonation by us would amount to serious denial of justice. Those of the aggrieved persons who keep sleeping over their rights to wake up only after the time for remedial measures is no more, are themselves to blame and are least deserving of sympathy and especially those who come within the definition of the educated elite.
29. And now to advert to the case under consideration. We find that the appellant has not been able to convince us of any grounds, neither any such grounds exist, whereby we could condone the delay. {{FOOT NOTE}}
(1) 1956 PLC 736 {{FOOT NOTE}} ' We do not wish to touch on the merits of the case because of its failure on the basic issue of limitation. The statutory time limit having long expired, the appellant cannot now, question the validity of the order of his retirement which must stand. The appellant's assertion that the order of his compulsory retirement was void amounted to nothing more than his private opinion. To prove the voidness of the order squarely rested upon him. For this he had to come to the Tribunal. The Tribunal alone was competent to judge whether or not the order was void and not the appellant.
We do, however, feel that if the appellant had sought relief from the Tribunal within 30 days of his interview by the Review Board on 5th February, 1978 we would have been favourably inclined to condone any delay before the said date. But he waited till 20th July, 1978 to file his appeal and was, therefore, much too late especially when he had expressed his specific contention before the Review Board to seek remedy from the Service Tribunal.
30. This appeal is, therefore, dismissed as seriously barred by time with costs fixed at Rs, 100.
31. Parties are informed accordingly.