MUHAMMAD AFZAL ZULLAH, J.-These appeals through special leave raise common question of law of limitation relating to appeals before the Sind Service Tribunal. They are being disposed of together.
2. In most of these matters the Tribunal passed short orders. The detailed reasons, however, are found in order dated 11-12-1977, in Tribunal Appeal No. 187 of 1974. It was made basis for the order, dated 27-1.2-1977, which has been impugned in Civil Appeal K-58 of 1979. The appellant therein was reverted as Sub-Engineer from the post of: Deputy -Director in the Irrigation & Power Department of Government of Sind on 7-6-1977. He challenged the order of demotion through a petition filed on 25-6-1977, under section 23 of the Sind Civil Servants Act, 1973. No decision was taken in this petition till 90 days after its institution. An appeal was then filed before the Tribunal under section 4 of the Sind Service Tribunals Act, 1973, on 17-10-1977. It was dismissed on 27-12-1977 as time-barred by 10 days, because the same was filed beyond 120 days of the original order dated 7-6-1977. The main reason which prevailed with the Tribunal was that the language of the enacting part of section 4 prescribed a period of 30 days for filing of appeal before the Tribunal and if 90 days are also allowed as waiting period, the appeal must be filed within 120 days. Similar tire the facts involved and view taken in the orders which are under challenge in the other appeals:
3. Special leave to appeal was granted by the order, dated 12-8-1979 (in C. A. K-58 of 1979) which highlighted the legal controversy involved as follows :-
4. The learned counsel for the petitioner submitted that the impugned order of the Service Tribunal was based on an incorrect interpretation of section 4 of the Sind Service Tribunals Act, 1973, and argued that the Tribunal hart ignored the provisions of section 23 of the Sind Civil Servants Act, 1973, which allow a period of 30 days for filing an appeal, review or representation against the original order. We have carefully considered this contention in the light of the provisions of section 4 of the Sind Service Tribunals Act, 1973 and section 23 of the Sind Civil Servants Act. The relevant portions of these sections are given below for facility of reference Section 4 of the Sind Service Tribunals Act, 1973: "Appeals of Tribunals.-Any civil servant aggrieved by any final 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, prefer an appeal to the Tribunal having jurisdiction in the matter : Provided that-
(a) Where an appeal, review or representation to departmental authority is provided under the Sind Civil Servants Act, 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 so preferred.
(b)--------------- Section 23 of the Sind Civil Servants Act, 1973: "Right of Appeal or representation.-(I) Where a right to prefer an appeal or apply for review in respect of any order relating to the terms and conditions of his service is provided to a civil servant under any rules applicable to him such appeal or application shall, except as may be otherwise prescribed, be made within thirty days of the date of such order. .
(2)---------
4. A reading of section 4 of the Sind Service Tribunals Act shows that the civil servant against whom an adverse order has been passed can file an appeal against it directly before the Service Tribunal, provided the order in question is a final order, whether original or appellate.
5. There is however a restriction on his right to appeal to the Service Tribunal which is mentioned in clause (a) of the proviso of section 4 of the Sind Service Tribunals Act. According to the proviso if the order by which the civil servant is aggrieved is not a final order but is an order against which an appeal, review or representation to a departmental authority is provided under the Sind Civil Servants Act, 1973 or any rules applicable to the civil servant, then he must first approach such departmental authority by way of appeal or review, etc. Section 23 of the Sind Civil Servants Act provides that he can do so within a period of thirty days.
6. When a civil servant has filed an appeal, review or representation before a departmental authority, as required by the above-mentioned proviso, he has two choices before him :-
(1) he can either wait for such authority to pass the final order on his appeal, review or representation, no matter how long it takes. He can then file an appeal against the final order before the Service Tribunal within a period of 30 days, as provided by the main portion of section 4, or (2) after the passage of 90 days, if the departmental authority has not yet passed the final order on his appeal or review, etc., he can file an appeal directly against the earlier order of the departmental authority, before the Service Tribunal.
7. The main portion of section 4 of the Sind Civil Servants Act clearly allows the civil servant a period of 30 days to file an appeal against the final order after the right of filing of appeal accrues to him.
I.e., after the order in question has been communicated to him. Similarly where a civil servant has filed an appeal or review etc. To a departmental authority and, exercising the first option of the above-mentioned two options, awaits the passing of the final order by it, he would again have the right to file the appeal to the Service Tribunal within 30 days of the communication to him of such an order, under the provisions of the main portion of section 4.
8. The question to be determined however is as to what would be the period of limitation available to a civil servant who opts for the second choice, namely, to file an appeal to the Service Tribunal when the depart--mental authority fails to pass any order even after the passage of 90 day of the filing of the appeal or review, etc. Before it. Obviously although no 'final' order has been passed in this case, the period allowed to the civil servant for filing an appeal before the Service Tribunal in this case would be not less than 30 days after the right to file an appeal has accrued to him i.e., after the passage or expiry of 90 days. That this is so would be obvious from the fact that if the interpretation given by the Service Tribunal in the impugned judgment, namely, that the period of limitation in such a case would be 120 days from the communication of the order to him, is to be adopted, then a civil servant who files an appeal, review or representation under section 23 of the Sind Civil Servants Act on the last day of the limita--tion, i.e. On the 30th day, would not at all be able to file an appeal before the Service Tribunal within a period of 120 days. It stands to reason that "period of limitation to file an appeal should start to run against a person only after the right to file an appeal has accrued to him. In case the civil servant chooses to file an appeal before the Service Tribunal after the expiry of 90 days of his having filed an appeal or review, etc. Under section 23 before a departmental authority which has not yet passed any order on it, then the right to appeal would obviously accrue to the civil servant on the expiry of the 90th day"
9. Elaborate arguments were addressed by the learned counsel which have been noted with abundant clarity by my learned brother Shafi-ur---Rehman, J. In his proposed judgment, which I have had the advantage of reading. It is not necessary here to restate the contentions except that the main reliance of learned counsel for the appellants has been on the intention underlying the relevant provisions of law. The learned Advocate-General, Sind, has on the other hand, tried to pursuade us to follow the literal meaning of language used in the provisions; which mode of interpretation, with respect, in my view is not the rule followed in Pakistan. For the same reason, with profound regret, I have not been able to agree with the view expressed in the detailed judgment proposed by my learned brother.
10. It is useful to keep in view the trend of judicial thought and pronouncements by the superior Courts in foreign jurisdiction; but they cannot always be treated as of determinative character when interpreting our own laws in accordance with the principles, direction and guidance contained in our own Constitution and Jurisprudence. Governor General v. Municipal Council, Madura (PLD 1948 P C 211). With a view to illustrate the diversity of views and opinions on same and similar subjects, I have made comparative study of the contrary views and opinions stated/compiled in the three sources, relied upon by my learned brother. The results in so far as the drawing of obvious conclusion appear to be diametrically opposed.
11. To start with, the author of the discourse in the Harvard Law Review (1949/50 Vol. 63 Harvard Law Rev.), made the following comments under headings 'Purposes of statutes of limitations; Construction of statutes of Limitations ; Actions conditioned upon plaintiff's acts and Government prohibitions against suit.'
Purposes of statutes of limitations. In civil claims by the State, such as tax assessments, the Legislature must consider principally the extent to which the individual or the public as a whole should suffer from official neglect. On the other hand, limitations on private action against the sovereign, serve the purpose not so much of fairness as o public convenience.
The relative importance of statutes of limitations in implementing they various purposes will vary with the effectiveness of other legal institu--tions subserving the same ends." (pp. 1185-1186)
"Construction of statutes of limitations.-Although one might cite numerous references to early judicial hostility towards statutes of limitations, it i3 doubtful that the Courts have ever been inimical to the rationale behind the statutes for the desirability or protecting parties from the hazards of stale claims had been judicially recognized prior to the, enactment of limitations statutes. Apparently the exceptions engrafted upon the limitations statutes by the early Courts were a manifestation of a reaction to the rigidity of the arbitrarily fixed time periods. Modern American Courts, indeed, have generally exhibited an attitude favourable to liberal imposition of the statutory bar, both in civil and in criminal actions, although the exceptions developed in earlier years have been largely retained.
In construing limitations apparently unambiguous, Courts have tended to avoid a literal interpretation where they believed that literalness would yield an unreasonable result.(pp.1188- 1189)
"Actions conditioned upon plaintiff's acts.-Selection among the various possible times for commencing the statutory period has usually been governed by the purpose of the act required for maturity of the cause of action. (p.1209)
But where the statute .Requires, that suit be delayed after the presentment of notice, in order to give an opportunity for investigation of the claim, limitations usually do not begin until the claim is rejected or until an interval specified by statute has expired ; many Courts add qualification that the notice must be given or the claim be presented within a reasonable time."(pp.1209-1210)
"Government prohibitions against suit.-Where the plaintiff is prevented from filing timely suit by force of law, it is manifestly unjust to penalize him by barring the suit. Since an explicit prohibition against suit, as by statute or injunction, is frequently designed expressly for the defendant's protection, here, at least, the Courts-even before the enactment of specific legislation-have consistently implied a suspension of the limitations statute for the period of prohibition."
12. I do not consider it necessary to make any comment on the aforequoted views except that I have underlined some of them so as to show the emphasis/tendency in the development of certain principles of law relating to limitation.
13. The next work for reference, namely, American Jurisprudence, 51 Amer. Juris., 2nd Edn., contains a large amount of material on the subject under discussion, in its various aspects. I have, however, made a selection of some headings only which, as it would appear from the narrative, have more direct bearing. Sometimes, the headings are overlapping, therefore, this selective reproduction would only generally show the judicial attitudes in that behalf :- "In the early years after their enactment, an inhospitable reception was generally accorded by the Courts to the legislative policies embodied in statutes of limitation ------------.Statements are to be found in earlier cases to the effect that it was dishonourable to insist upon the statutory defence of the statute of limitation ;------------In time, however, the legislative policy came to be recognized as controlling, and the duty of the Courts to give effect thereto came to be fully recognized. (5)
Statutes of limitation always have vexed the philosophical mind because it is difficult to fit them into a completely logical and symmetrical system of law. But however this may be, a statute of limitations, regardless of fictions which might be invoked to justify it, is absolute and derives its vigor from its mere enactment. (13)
Formerly, the defence afforded by the statute of limitations was not treated with the same favour as ordinary defences; and being looked on with disfavour, statutes of limitation were strictly construed, particularly since such statutes are invariably in derogation of the common law. Now, however, the judicial attitude is in favour of statutes of limitation, rather than otherwise, since they are considered as statutes of repose and as affording statutes against stale claims. Consequently, except in the case of statutes of limitation against the Government, the Courts are inclined to construe limitation laws liberally, so as to effect the intention of the Legislature.
The principle that statutes of limitation are to be liberally construed does not mean, however, that the usual rules of statutory construction will be ignored. The Courts will not strain either the facts or the law in favour of a statute of limitations, nor should such a statute be extended by the Courts or be applied to cases not clearly within the statutory provisions. But neither should a Court give a strained construction in order to evade the effect of a statute of limitation. (50)
"...The modern rule of construction in this respect is that unless some ground can be found in the statute for restraining or enlarging the meaning of its general words, it must receive a general construction, and the Courts cannot arbitrarily subtract therefrom or add thereto---..And whether, under a given set of facts, a statute of limitations is to be tolled, is a question of legislative intent as to whether the right shall be enforceable after the prescribed time." (138)
The broad rule is laid down that whenever some paramount authority prevents a person from exercising his legal remedy, the time during which he is thus prevented is not to be counted against him in deter--mining whether the statute of limitations has barred his right even though the statute makes no specific exception in his favour in such cases. This rule enables the Courts to give effect to a law creating an exception the object of which is to prevent the statute from running during the time the claimant is prevented, without fault on his part, from suing, so that he can have the full benefit of the time allowed him in which to bring his action. Under this rule, an injunction or other legal proceeding which prevents one from exercising his legal remedy against another tolls or suspends the operation of the statute of limitations.------------------ And some Courts exclude from the operation of the statute of limitation cases in which no action can be brought at all, either for want of parties capable of suing, or because the law prohibits the bringing of the action." (140)
Note 20.-The statute of limitations ceases to run against a claimant whose power to institute his suit has been taken away by statute, whether such exception is contained in the act of limitation or not. Broadfoot v. Fayetteville, 124 N C 478-32 S E 804.
A true statute of limitations prescribes a time period within which an action must be brought upon claims or rights to be enforced, and should be distinguished from certain other statutes which may preclude enforcement of one's rights, but which are not truly within the purview of a limitations act."
(6)
A statute of limitation should be construed as a whole-that is in its entirety. The enactment should be so construed as to make it con--sistent in all its parts, so that proper effect may be given to every section, clause, or part, and so that no sentence, clause, or word shall be deemed to be void, superfluous, or insignificant. Application is also made of the settled principle that two or more words of analogous meaning employed together in a statute give colour to each other." (51)
In the construction of statutes of limitation, the Courts may, where the Legislature has not sufficiently manifested its intention, consider the reasonableness of the result of a particular construction in the light of the practical effect of the adoption of a different construction. Thus, a statute will be construed as a limitation law if it can be upheld by such construction although a literal construction of it would destroy vested rights. Also, a particular construction will be favoured when it appears to be the only one which will afford a fixed, permanent, and certain rule by which to ascertain whether a particular case is included within or excluded from the operation of the exception to the statute of limitations. (52)
"As a matter of policy, the view has been taken that where there is a substantial question which of two or more statutes of limitation within the jurisdiction should be applied, the doubt should be resolved in favour of the application of the statute containing the longest limitation. In other words, if a substantial doubt exists as to which is the applicable statute of limitation the longer rather than the shorter period of limitation is to be preferred." (63)
It is frequently held, and sometimes expressly provided by statute, that during the period of the restraint incident to other legal proceedings which are of such a character that the law forbids one of the parties to exercise a legal remedy against another, the running of the statute of limitations is postponed, or, if it has commenced to run, is suspended. The broad general principle that the time during which a person is prevented from exercising his legal remedy by some paramount authority is not to be counted against him in determining whether his right is barred by the limitations statute is applicable. (170)
The general rules of statutory construction with regard to exceptions and provisos in statutes have been applied to the enumeration of specific exceptions and to saving clauses in statutes of limitation. As a general rule, the enumeration by the Legislature of specific exceptions by implication excludes all others, and as is subsequently stated, the Courts ordinarily are without power to read into statutes, by construction, exceptions which have not been embodied therein.
(56)
According to most Courts, exceptions in statutes of limitation are to be strictly construed and cannot be enlarged from considerations of apparent hardship or inconvenience. It has been so held for instance, as to exceptions in favour of persons under disability. But it has also been said that the law favours a right of action rather than the right of limitation and that therefore a statute which tolls the statute of limitations should be liberally construed in order to accomplish that purpose. (143)
Although there is some dictum to the contrary, it seems to be firmly established that a saving clause in a statute of limitations permitting a new action to be brought within a specified period after failure of the original action for some reason other than on the merits is generally considered as extending, rather than abridging, the general statutes of limitation, so that if the portion of the limitation period remaining after the failure of a prior action is greater than the period allowed by the saving clause, the plaintiff will not be restricted to the latter period in bringing a new action.
(304)
Inasmuch as an action is deemed to be pending until its final disposition upon appeal, in the majority of jurisdiction, it is held that an appeal. From a judgment which supersedes, tolls the running of the statute of limitations against the judgment during the pendency of the appellate proceedings. (174)
In most jurisdictions, statutes have been enacted to permit, after the limitation period, the bringing of a new action within a specified time where the former action has failed for some reason other than a decision on the merits. Such enactments are said to have their origin in the common-law rule of 'journeys' account'. They are founded upon the statute of 21 James 1, ch. 16, although they differ to some extent in terms. (302)
Statutes which permit the bringing of a new action after the limitation period, where the original action has failed, should be liberally construed, and are generally interpreted as extending the period of limitation in accordance with the conditions specified. (303)
Under various renewal statutes, it has been quite generally held that the time limited for the recommencement of an action is to be measured from the date of the affirmance on appeal of a judgment or decision adverse to the plaintiff, not from the date of the adverse decision or judgment below. (317) Taken from (51 American Jurisprudence 2nd (Limitation of Actions) 5, 6, 13, 50, 51, 52, 56, 63, 138, 140, 143, 170, 174, 302, 303, 304, 317."
14. I have not been able to divide the aforequoted views in watertight classifications; and reason for not reproducing them in regular order is to demonstrate some measure of continuity of broadly speaking, five subjects---general principles and philosophy underlying the law of limitation ; general rules of interpretation as might be attracted to the present matter ; interaction and effect of other statutes or antecedent proceedings on the statutes of limitations ; the role of exceptions and may be provisos in provisions relating to limitation ; and, the construction of statutes which permit the bringing of a new action after the ordinary period of limitation where the original action has technically failed. The groupings in these five wide headings of the relevant paragraphs of the treatise would respectively be : (a) 5, 13, 50, 138, 140 ; (b) 6, 51, 52, 63 ; (c) 170 ; (d) 56, 143, 304 ; (e)
174, 302, 303,317.
15. As in the case of Harvard Law Review, I have again restrained myself from making any comment on the quoted material as the reference to and purpose of, quoting the same. Is obvious ; which I have highlighted by underlining some portions.
16. The compilers of the Encyclopaedia of the American Law Jurisprudence (54 Corpus Juris Secundum (1969) claimed that it contains clearcut and exhaustive propositions. I have selected some headings having a bearing on the subject under discussion. They are also reproduced below:
54. Corpus Juris Secundum (Computation of Statutory Period).-Art. 108, 109, 110, 114, 199, 247, 248, 254 .........
Accrual of Right of Action or Defence in General
108. General Rules.-"------------.The general rule, a& embodied in most statutes, in that, unless a statute specifically provides otherwise, the statute of limitations begins to run at the time when a complete cause or right of action accrues or arises No statute of limitations runs against a person until he is allowed by law to do the things as to which the statute is interposed "
109. When right accrues.-"It has been said that no fixed rule as to when a claim or cause of action accrues, so. As to start the running of the statute of limitations, can be stated and applied in every case and that the facts and the terms and conditions of the provisions and stipulations of the contract, agreement, or statute .In each case must be considered,---. So, whether at law or in equity, the cause of action arises when, and only when, the aggrieved person has the right to apply the proper Tribunal for relief. The statute does not attach to a claim for which there is no right of action, and does not run against a right for which there is no corresponding remedy or for which judgment cannot be obtained.."
110. Right dependent on future event.-"Where a party's right depends on the happening of an event in the future, the cause of action accrues, and the statute of limitations begins to run only at the time when the event happens."
114. Effect of subsequent accrual of new cause of action.-"Where after the accrual of a cause of action, another cause of action arises for the benefit of the same person, the statute of limitations begins to run, as to the latter cause, at the time of its accrual."
C. Performance of Condition, Demand and Notice "199. Present right to remedy.-Accordingly, until a remedy is provided by law for the exercise of an asserted right, the statute of limitations otherwise applicable to the enforcement of such right, does not commence to run."
H. Pendency of Legal Proceedings, Negotiations, Arbitration, Stay, or War "247. Pendency of legal proceedings.-Where a person is prevented from exercising his legal remedy by the pendency of legal proceedings the time during which he is thus prevented should not be counted against him in determining whether limitations have barred his right, even though Courts are reluctant to acknowledge exceptions additional to those contained in the statute itself."
"In order that the pendency of other proceedings shall have the effect of tolling the statutes of limitation on a cause of action, however, the proceedings must be such as to prevent enforcement of the remedy by action. Pendency of proceedings as to a different matter will not toll limitations.
Where one has a choice of remedies, the fact that he selects one remedy does not toll limitations as against an action based on another remedy."
"248. Appeal and proceedings to review.-"Where time runs from a judgment, it would seem that a final judgment, to the enforcement of which there is no impediment, is contemplated. Pending decision of a motion for new trial, or pending on appeal, the statute will not run against matters which are still properly cognizable in the proceed--ing and against which the bar was not complete before action brought and a right or cause of action depending or- founded on a judgment is not subject to limitations from the entry of the judgment, where an appeal from the judgment is perfected which suspends the rights of the parties."
254. By statutory prohibition or `restraint'.-"When by a legislative enactment parties are prevented from prosecuting their claims the interval during which such prevention lasts is not to be counted as part of the time allowed by the statute of limitations."
17. The purpose of selective reproduction [particularly underlined portions] from Corpus Juris Secundum as shown in the headings, is to indicate that sometimes limitation may be stopped by statutes expressly staying their running or having such effect.
18. Before examining the relevant case law, it would be of advantage to make a brief reference to the celebrated works on Interpretation of Statutes by Maxwell (12th Edition) and Craies (7th Edition).
Some of the deductions and observations of the authors are that inconsistencies regarding application of a proviso can be avoided by following the general rule that "the words of a proviso are not to be taken "absolutely in their strict literal sense" but a proviso is of necessity limited in its operation to the ambit of the section which it qualifies, if the proviso makes it plain. That it was intended to operate more extensively than that of the provision it follows ; and, lastly, if a proviso cannot reasonably be construed otherwise than as contradicting the main enactment, then the proviso will prevail on the principle that "it speaks the last intention of the makers." (Maxwell, pp. 189-191): Maxwell on the Interpretation of Statutes (12th Edn.).
19. Craies when dealing with "repugnant" provisos observed that it sometimes happens that there is a repugnancy between the enacting clauses and the provisos and saving clauses. The question then arises, how is the Act taken as a whole to be construed ? Apart from adopting what has already beer, quoted from Maxwell, it was observed : "The true principle," say the editors of Kent's Commentaries, "undoubtedly is, that the sound interpretation and meaning of the statute on a view of the enacting clause, saving clause, and proviso, taken and construed together, are to prevail. If the principal object of the Act can be accomplished and stand under the restriction of the saving clause or proviso the same is not be held void for repugnancy" While dealing with some of the enactments, as example, it was also observed that where a general intention is expressed and also a particular intention incompatible with the general intention, the particular intention is to be considered in the nature of an exception. The observation regarding reading of two Acts together is that every part of each Act must be construed as if the two Acts had been one, unless there is some manifest discrepancy making it necessary to hold that the later Act has to some extent modified the provisions of the earlier Act, and the effect of bringing into a later Act, by reference, sections of an earlier Act is to introduce the incorporation of sections of the earlier Act into the later Act as if they had been enacted in it for the first time. (Crates, pp. 218 to 224). Craies on Statute Law (7th Edition).
20. While commenting upon a decision in which the Court of Appeal had treated the words of a proviso as having been inserted by some blunder in the wrong place, it is observed in Craies (at page 219) that sometimes the "sections" though framed as provisos on preceding sections, may exceptionally contain matter which is in substance a fresh enactment, "adding to and not merely qualifying what goes before." In this behalf it would be interesting to reproduce, from page 216 the historical aspect of procedures in legislation :- "Before 1850 it was usual to preface each distinct portion of an Act by words of enactment, and the division into sections, had no legislative authority. By section 2 of Lord Brougham's Act, 1850 it was enacted that `all Acts shall be divided into sections if there be more enactments than one, which sections shall be deemed to be substantive enactments without any introductory words ...There is not, however, any rule as to how many different sentences, each containing a substantive enact-- ments, may be comprised in one section, and it is clear, that whether an enactment be printed as part of one section, or contained in another section, it can make no difference in the construction of the statute."
21. This leads us to the statement of the golden rule of interpretation of statutes which as stated by Maxwell (page 43) is that "It is a very useful rule, in the construction of a statute, to adhere to the ordinary meaning of the words used and to the grammatical construction unless that is at variance with the intention of the Legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance, in which case the language may be varied or modified, so as to avoid such inconvenience, but no further." Application of this rule in various situations, with reference to consequences, avoidance of inconvenience or injustice and to prevent evasion, has been separately dealt with by the author at pages 105-116, 199-212, 137--145.
22. In cases of exceptional construction it was also observed that "the canons of construction are not so rigid as to prevent a realistic solution." As for example, "where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity which can hardly have been intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words, or by rejecting them altogether, on the ground that the Legislature could not possibly have intended what its words signify, and that the modification made are mere corrections of careless language and really give the true meaning. Where the main object and intention of a statute are clear, it must not be reduced to a nullity by the draftsmen's unskilfullness or ignorance of the law, except in a case of necessity, or the absolute intractability of the language used." (page 228). In this very con--nection, we find the observation by Maxwell at page 231 that "Sometimes where the sense of the statute demands it or where there has been an obvious mistake in drafting a Court will be prepared to substitute another word or phrase for that which actually appears in the text of the Act".
23. The foregoing summarization would show that in so far as the question of general principles is concerned there is nothing which would prevent the Courts in Pakistan to adopt beneficial construction as against literal whenever a controversy in this behalf arises. I may add that sue a course would indeed be in accord with our own jurisprudence and philosophy underlying the same. A few cases decided by this Court involving similar questions would not only illustrate but also enforce the point. In re Reference by the President of Pakistan under Article 162 of the Constitution of Islamic Republic of Pakistan (PLD 1957 SC (Pak.) 219) an attempt was made to summarize eight well-known rules of interpretation, namely : the first object of the Court is to discover the intention of the author from the words used ; the intention should also be gathered from reading the statute as a whole in order to arrive at a "consistent plan" the statute should not be extended to meet a case which is "clearly and undoubtedly" out of its purview ; whenever a particular and general provision exists in the same statute and the general when taken in its most comprehensive sense, would overrule the particular, the particular "must be operative" and the general would then be confined to other parts to which "it may properly apply" these rules would apply to the interpretation of constitutions also, .But with certain modifications so as ' to give effect to the intention of the framers of the organic law and of the people adopting it"; Court should try to avoid construction which renders any provision meaning--less or inoperative and should thus lean in favour of keeping the words operative rather making them idle ; it is the duty of the Courts to have recourse to the whole instrument, if necessary, "to ascertain the true intent and meaning of any particular provision ;" but, in case of apparent repugnancy between different provisions, "the Court should harmonize them if possible".
24. In the case of East & West Steamship Company (PLD 1963 SC 663) in one of the four opinions of this Court even while upholding the rule that an attempt should be made not to treat any part of a statute as surplusage, it was observed that while giving meaning to every word used and omission made the main object of interpretation so achieved, remains the `scheme of the legislation' and the intention of the Legislature (at page 703). In the same year in a Full Court decision in the case of Tahir Ali (PLD 1963 SC 147) while construing the word "appeal" in section 12
(2) of the Limitation Act, 1908, the word "revision" used in section 15 (1) of the Karachi Rent Restriction Act, 1953 was modified and read as an appeal by the process of the interaction of two legislations, in an attempt to achieve a harmonious and beneficial interpretation ; which advanced the remedy of appeal in opposition to a literal interpretation which would have satisfied it. This case also serves as an illustration of pragmatic interpretation, by this Court, of a law of limitation.
On `modification', cases of Muhammad Amir Khan (PLD 1961 SC 119) and Burmah Oil Co. (PLD 1961 SC 452) are also very enlightening. In Mian Rafi-ud-Din's case (PLD 1971 SC 252) again a major departure from technical rule of interpretation was made "on considerations of policy" of the relevant laws, namely, tho4e relating to Displaced Persons and Evacuee Property. It was held that these laws were designed to meet extraordinary and complex situation which developed from time to time. "They could not, therefore, be construed upon strict legal principles and certainly not in such a manner as to defeat the very object for which such special legislation was designed". Thus once again a beneficial and pragmatic view was taken in so far as the rules of interpreta--tion are concerned. In the background of historical process, the present case is not different. In the case of Rab Nawaz (PLD 1974 SC 210) while interpreting an amended law with a View to examine whether there was a major change from the pre--existing law, the controversy was resolved by discovering the intent of the Legislature. In this process, amongst others, one rule of interpretation followed was to find out the reason for the remedy provided by the Legislature and to adopt such construction as shall suppress the mischief, and advance the remedy, and in this process also "to suppress subtle inventions and evasions for continuance of the mischief, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico". This, it seems, is always the purpose. In the case of Jammu & Kashmir State Property (PLD 1915 SC 678) the golden rule of equitable construction agreeable to justice and reason was followed and the conflict between beneficial and literal rules of interpretation was resolved by treating it as only a seemingly conflict. Another rule was laid down which it must be emphasized is no less golden in our conditions, that between seemingly conflicting views a way out can be found by adopting a realistic solution "having regard to the facts and circumstances of each case". And, while doing so, as observed therein, "we can look forward to a greater infusion and convergence of Religion, Law and Morality in Pakistan unlike the secular States where the area of conflict is greater and seems to be ever increasing. It is in this context also that the observation regarding technicality-not to defeat the ends 'of justice and logic of words to yield to logic of realities-is to be seen.
It is no doubt true that there are cases wherein a seeming emphasis on words rather than on intent would be found but on proper analysis the underly--ing view would always be found in favour of being loaded more with beneficial and harmonizing interpretation rather than technical and literal.
This aspect would be fund highlighted in the case of Mahboob Ali (PLD 1976 SC 483). It was observed then that where the language is plain, certain and free from ambiguity, those statutes would hardly be treated as requiring any interpretation. Thus, "Barr--ing such plain cases statutes would be construed liberally or strictly according to their subject; matter, the object or purpose intended to be achieved, or whether it is in any way in derogation of any common or inherent right.
For instance, it is well settled that penal or fiscal statutes or statutes impinging upon common law rights, are to be strictly construed and any ambiguity or imprecision is to be resolved in favour of the subject. On the other hand, it is equally well settled that remedial statutes are to be liberally construed so as to advance the remedy and suppress the mischief. So also empowering statutes are generally liberally construed so as to effectuate and not to stultify the power conferred. Modren cases provide many instances of Judges' reluctance to stand upon the letter of the law strictly in the interpretation of a statute falling under the second category. It is true that even in such cases what is an obvious omission cannot be supplied by invoking the rule of liberal interpretation. In such cases rule of cassus omissus is generally applied. But when faced with a choice between a wide meaning, which carries out what appears to be the object of the Legislature more fully and a narrow meaning which carries it out less fully or not at all, the choice of the Courts is often the former. Beneficial construction is a tendency, rather than a rule".
25. The latest majority decision in the case of Messrs Hamdard Dawak--hana (PLD 1980 SC 84) when viewed in the afore-noted trend of authority in Pakistan, would show that a serious attempt was made to ascertain the intention of the Legislature in enacting certain proviso (in the Income- tax Act (XI) of 1922). So much so that while dealing with a presumption regarding the genesis of introduction of the proviso, when it was found that the relevant record of the Parliamentary debate preceding the enactment of the proviso concerned, by the Central Finance Act of 195,1 (Act 1 of 1951), was not available and it was found impossible to say as to "what exactly was in the mind of the legislators"; then the rule of interpretation in these circumstances followed was that although "the historical background of a statute may serve as a useful guide in ascertaining the intention of the Legislature, but only if the words used are capable of more than one interpretation ;" And, 'only in this context the observation was made that the Courts have an obligation .To adhere to the plain meaning of the word employed. But in ultimate analysis by following the plain meaning of the words used in the proviso, out of the two conflicting interpretations one beneficial and the other literal, the former was adopted. This rather enforces the analysis of the judicial trend in Pakistan although the beneficial construction was adopted without recourse to the modification of language or giving it one or the other conflicting meanings, themselves favoured the beneficial construction.
26. At this stage it would not be out of place to notice some decisions which particularly relate to the interpretation of a proviso. In Messrs East & West Steamship Company's case (PLD 1958 SC (Pak.) 41) not the one already noticed in another connection). It was held that a proviso is to be regarded as something which excepts a particular case from a general principle. The effect of a proviso is to except something out of the preceding portion of the enactment or to qualify something enacted therein which but for the proviso would be within it. 1t was also observed that the words of a proviso are to be construed strictly and confined to the special case which its words enact ; and it would be wrong to construe those words as being co-extensive with those used in the purview. Particularly where the effect might be of bringing about a repeal of the purview. In other words, the emphasis was on harmonious constitution of the purview and the proviso.
27. In Paramatha Nath Chowdhury's case (PLD 1965 SC 434) on account of divergence of opinion in earlier authority, the legislative history of the relevant enactment at its various stages was considered in detail and then it was observed (at page 440) that a proviso as is generally accepted, is in the nature of an exception to the substantive provision to which it has been appended. In Hamdard Dawakana's case (PLD 1980 SC 84) which has also been earlier noticed, observation was made with regard to the function of a proviso, namely, that it ordinarily excepts out of a previous enacting part of the statute, which, but for the proviso, would have been within the enacting part ; but such being not an inflexible rule of construction, clear language of the substantive provision as well as the proviso-when read together in the said case-established that the said proviso was not a qualifying clause of the enacting provision and that the proviso was itself a substantive provision. In so far as the general principle is concerned, as has been shown in the general earlier discussion on the subject of proviso, this course can be adopted. However, same results were achieved in the minority judgment in that case, by also adopting the normal and true role of a proviso ; which as earlier stated is that ; it excepts something from the enacting provision preceding the proviso. Support was gathered in the minority judgment from the use of a usual expression in the proviso, namely, "this clause shall not apply unless."
28. The interpretation of proviso (a) in section 4 of the Service Tribunals Act involves a major question as to when the right to file an appeal before the Tribunal accrues. In that context the question of terminus a quo for computing the period of limitation also seriously-arises. A similar controversy arose in F. A. Khan's case (PLD 1964 SC 520). It was observed that in respect of the nature of the appeal, the following propositions may be regarded as established
(i) when an appeal is filed the matter becomes sub-judice and is reheard by the appellate Court which does not act merely as a Court of error ;
(ii) after there has been an appeal even though an appellate Court simply affirms the order of the original Court the only decree or order in existence is the order of the appellate Court ;
(iii) the original and appellate proceedings are steps in one proceeding.
The appeal had arisen out of a suit filed by a dismissed Government employee. It was held that although there was an original order of dismissal, the limita--tion for filing the suit shall not run till the matter was decided by the Appellate Tribunal.
29. This very question arises in the present case ; in that after a final original order is passed by a departmental authority, if it is brought under challenge in an appeal before a departmental forum, according to the ruling in the case of F. A. Khan, the limitation for filing an appeal before the Tribunal under the Tribunal Act would not start running till the matter is decided by the departmental appellate forum. It would be in this context that "an observation, made in the said case, would apply to this case also. It is : 'When a litigation in one forum is completed, the litigation in the other forum should start and that an order really becomes an order when the appeals to which it is subject are exhausted'." It would, however, be presently seen as to what would be the effect of the permission to the individual con--cerned granted by the proviso not to wait for the final departmental appellate order and file the appeal before the -Tribunal, on the expiry of 90 days, after filing the departmental appeal.
30. Both the relevant laws, namely, Sind Civil Servants Act, 1973 and the Sind Service Tribunals Act, 1973 are complimentary inter se. According to the preambles ; while the former is designed to regulate the appointment of persons to, and the terms and conditions of service of persons in, the service of Pakistan ; in connection with the affairs of the Province of Sind and provides for matters connected therewith or ancillary thereto, the latter Act pro--vides for matters connected therewith or ancillary thereto, the latter Act pro--vides for the establishment of the administrative Tribunals to exercise exclusive jurisdiction in respect of the matters relating to the terms and conditions of service of civil servants and for matters connected therewith or ancillary thereto. Not only this reading of the two preambles together but also the various provisions enacted in the two laws in many aspects are supplementary to each other. The proviso (a) to section 4 of the Tribunals Act itself demonstrates this reality for all practical purposes by interjecting the pro--visions of section 23 of the Civil Servants Act into the provision to section 4 of the Tribunals Act. It provides that where a departmental appeal, review or revision is provided under the Civil Servants Act or any rules (section 23 of the Civil Servants Act also refers to the rules relating to appeal and review) then -the appeal provided in the enacting part of section 4 shall not lie to the Tribunal, unless certain provisions relating to these remedies are satisfied as a condition precedent. It would not be against any rule of statutory construction to refer here to the other provisos, namely, (b) and (c) to section 4. They also take away the right to file an appeal under certain conditions. The language used in all the three provisos-(a), (b) and (c)--regarding the restriction of the right to file an appeal is the same, namely, "no appeal shall lie to a Tribunal". This comparison would show that proviso (a) also acts as a bar to the exercise of right of appeal granted in the enacting part of section 4 ; but only if the direction therein is ignored. In the fore--going context another question arises whether proviso (a) when providing for the seeking of remedy under Civil Servant Act, as a condition precedent for filing an appeal to the Tribunal, in a strong and mandatory language (i.e., no appeal shall lie)-was it the intention of the Legislature that the full time available to the civil servant under section 23 of the Civil Servants Act and the rules referred therein for exhausting the remedy, may in some cases be not availed off by him ?
31. One easy explanation for giving an answer in the affirmative (which would not be in consonance with the obvious purpose and intention of the two provisions) would be that under subsection (2) of section 23 of the Civil Servants Act the limitation being 30 days and the period of limitation for appeal to the Tribunal under section 4 of the Tribunals Act also being 30 days, the civil servant would in no case be at a disadvantage if the time starts running immediately on communication of the order sought to be appealed before the two forums of appeal. But this view can be adopted only by ignoring subsection (1) of section 23 and various beneficial provisions of the laws of Limitation which can be utilized in appeals thereunder in various situations for stopping of limitation. Subsection (1) of section 23 visualizes appeal and review, under the rules applicable to a civil servant. It does not specify the time within which appeal review under subsection (1) is to be filed and leaves it to be determined by the rules. That period contrary to that is provided in subsection (2) can be more than 30 days. And if in a given case it is so (for example, if it is 60 days) the civil servant would have to forego more than half the period if he is required to seek the departmental remedy earlier to the expiry of 30 days provided in section 4 of the Tribunals Act. This could not be the intention of the Legislature. Moreover it is well settled law that no one can .Be compelled to forego any part of the period of limitation and is entitled to utilize the full period if he so choses. Thus the literal and restricted construction would lead extraordinary results and in some matters, into impossible situations. In this view of the matter, the obvious answer to the question posed would be in the negative. And, if that is so, the time for filing the appeal before the Tribunal, if the case is covered by proviso (a), would commence after the expiry of 90 days waiting period, provided therein in connection with the departmental remedy.
32. Another similar aspect relatable to the interjection of section 23 of the Civil Servants Act in proviso (a) to section 4 of the Tribunals Act would further highlight the foregoing answer in the negative. The proviso (a) requires that after moving for the departmental remedy the aggrieved civil servant can, without waiting for the results of the departmental proceedings initiated by him, file an appeal before the Tribunal under a condition, that he must wait for 90 days. In a given case, if the period of limitation under the rules is 60 days and he files the departmental appeal on 40th day of the order and then taking the communication thereof as staring point files the appeal before the Tribunal within 120 days (30 days allowed to him under enacting part of section 4 plus 90 days waiting period), he would be filing this appeal on or about the 81st day of the filing of the departmental appeal. This under the proviso would be a premature appeal before the Tribunal, as it is necessary thereunder that after initiating the departmental proceedings a period of 90 days must elapse before moving the Tribunal. Such appeal without waiting for the expiry of full 90 days' period would be premature (see Ikramuddin Syed's case 1979SCMR469. The civil servant in such a situation would be on the horns of dilemma. If fails to seek a departmental remedy which is available to him under section 23 of the Civil Servant Act, his appeal before the Tribunal would not be competent as held in the cases of Ehsanul Haq (1979SCMR627) and that of S. Ali Raza Shah Naqvi (PLD 1979 SC 857).
33. There is yet another aspect of the same question. Assuming for' the sake of argument that the mandate provided in the proviso for seeking departmental remedy is satisfied by the civil servant by initiating proceedings provided in subsection (2) of section 23 of the Civil Servants Act, where the statute itself (and not the rules) provides a period of limitation of 30 days, and se ides such an appeal on the last day (i.e., 30th day) after the communica--tion of the original order. And, if he wants to satisfy the other condition in the proviso of waiting for 90 days, then by excluding the date when the original order was passed the appeal could be competently filed only on 121st day because 90 days must elapse after the filing of the departmental appeal. That would take the filing of the appeal beyond the period of limitation by one day because if the period of 90 days is treated as only o 8 exclusion and 30 days as period of limitation provided in section 4, then unless the appeal is filed within 120 days, that is, by the latest on the 120th day, it will not be within limitation.
But, it cannot be filed on 120th day, because under the proviso the 90th day of the waiting period must elapse before the filing of the appeal otherwise it would become premature-the relevant expression in this behalf used in the proviso is "and a period of 90 days has elapsed from the date on which such appeal . . . . . .Was so preferred." There fore, in this case also the civil servant would lose the appeal if he follows the strict interpretation. Thus, if looked at the counting of the period of limita--tion of 30 days as having commenced with the communication of the original order and by treating the period of 90 days as of exclusion, the appeal is filed within 120 days it would be premature and if he waits for the 90th day, to elapse after consuming 30 days, then on the, same reasoning his appeal would become time-barred by one day. The Legislature could not have intended such a result. If, on the other hand, and here the major different lies between the two interpretation, the filing of the departmental appeal and the waiting period of 90 days after the said filing of appeal are treated as condition precedent for acquiring a right to file the appeal before the Tribunal then the 30 days' period of limitation would commence on the first day after the last day of 90 days' period and the civil servant then would have clear 3 days under the enacting part of section 4, to file an appeal thereunder (read with proviso (a) within time.
34. A subsidiary question has arisen as to whether adoption of the afore --discussed beneficial construction in accordance with the golden rule of interpretation which advances and preserves the remedy will negate any important provision of the enacting part of section 4? One answer again, if the literal view is followed, would be that the expression "within thirty days of the communication of such order" would at least become redundant even if it is not completely negated. In this behalf, it is to be seen whether instead of "communication of the order", as the accrual of the cause of action, the date of the commencement of right to fife appeal to the Tribunal under the proviso, should be adopted as the starting point of limitation of 30 days. In order to correctly discover the intention of the Legislature both the enacting clause and the proviso would have to be read together as interacting on each other, in those cases which are covered by the proviso. If by doing so a harmonizing effect is created then there will be no legal or any other bar to the adoption of the beneficial (liberal) construction which would preserve and advance the remedy.
35. When reading the enacting part of section 4 and proviso (a) together and side by side , it would not be difficult to adopt the above alternative, as more reasonable. The enacting part of section 4 visualises more than on situations when a civil servant can challenge an order before a Tribunal.
On is obviously the last and final appellate order against which there is no further departmental remedy. To such a case the proviso would not apply if no further appeal, review or representation to a departmental authority under the Civil Servants Act, 1973, or any rules would be available to him. That being so, he must file the appeal within 30 days of the communication of the final appellate order. But these considerations would not apply to an appeal to the tribunal under the proviso ; because so long as an appeal "cannot" be filed (thereunder) the limitation therefore cannot start-no appeal lies... Is a significant expression in this behalf. Cause of action would accrue in this context only when the relevant condition is satisfied i. e., filing of -the departmental appeal and then. 90 days' period, whereafter the appeal would be competent.
36. Although the purview of section 4 visualizes an appeal only from a final order, the proviso creates an exception; namely in cases coming under it, the appeal to the Tribunal may be filed when the proceedings (and for that matter the order appealed against) have not yet achieved finality This basic analysis of the concept of appeal covered by the proviso create insurmountable difficulty in the application of the controversial expression used in the purview, i. e., "within 30 days from the communication of such order. Under the proviso, there would be no such order as the original f order referred in the purview is no more final, and the appellate final order has not yet been passed. In that eventuality, no question would arise of the communication of such order. Thus the use of the two crucial words "final' Sand "such" in the enacting part of section 4 would not control the proviso. It is an exception in so far as this aspect of the purview is concerned. It is also because under the proviso, the passing of an ultimate and final order is not insisted upon; and that being so the expression "communication of, such order" would obviously being irrelevant under the proviso, it could not be insisted upon, it would yield to the expression (a) "unless. And (b) "a period of ninety days has elapsed." If the starting point for cases covered by the purview, is excluded for cases covered under the proviso, then the general principle regarding the start of period of limitation on the accrual of the cause, or, when the right to file an appeal arises, can be validly adopted. And that start/accrual would be on the first day after the 90th day (from the filing of the departmental appeal, etc.) has elapsed. This is how the two parts of the same section-one the purview in the enacting part and the other the proviso-when interacting on each other and the proviso playing its classical role of excepting a matter from the enacting part, produce a harmonizing effect. It unquestionably besides being an easy and smooth interpretation, produce beneficial results, preserving the remedy; keeping in view the history of the relevant legislation as successor and substitute to the constitutional remedies earlier provided in successive constitutions, seems to be absolutely in accord with the legislative intent also.
37. It will not be out of place here to refer to the case of Municipal Committee, Bahawalpur PLD 1970 SC 506 wherein while dealing with similar question of interpretation of section 115 of the Civil Procedure Code, vis-a-vis, the right to file a revision after exhausting the remedy of appeal, it was observed that in absence of clear and express words used in the Civil Procedure Code to justify this Court acting otherwise, it would not be "inclined to adopt a construction which is likely to result in complexity rather than simplicity of procedure."
38. One more aspect of general import regarding interpretation of proviso (a) to section 4 needs to be briefly dealt with. The remedy available to a civil servant in the constitutional jurisdiction was subject to the exhausting of departmental remedies. It was either written or implied precondition for invoking such constitutional remedy. This very principle, after the withdrawal of the said jurisdiction in the 1973; constitutional set-up, it seems, was considered apt and necessary to be incorporated in the subordinate legislation relating to civil servants enacted under the mandate of Article 212 of 1973 Constitution. All Service Tribunals under the Service Tribunals Acts are of high status and are manned according. Under Article 212, the decisions of the Service Tribunals are immune from interference by Courts other than this Court; under the condition that the point involved in the particular matter to be brought before the Supreme Court should raise substantial questions of law and that too of public importance. Subject to this, the Service Tribunals are the highest forums of appeal on facts and law for seeking appropriate remedies in the field of civil service. It was in this historical perspective and also in fitness of the subject matter that before approaching the same tribunal all lawful available remedies should be exhausted. In doing so, the Legislature took note of another most obvious historical reality, namely, the inordinate delays faced by civil servants in departmental cases/remedies. The law as contained in the provisos in this behalf added the appropriate section in the relevant Acts which took cogni--zance of the aforenoted two realities-one, approach to the Higher Tribunal not without exhausting other remedies; and two, the delay in those proceedings. It provided firstly, that if such departmental remedy is provided by law, proceedings for seeking that remedy shall have to be instituted for approach--ing the Service Tribunal; and, secondly, a reasonable time (of 90 days) was provided, as the waiting period for an aggrieved civil servant, who is not in-a-position to wait longer. Thus on principle -so, it was essential to provide for the subjects included in the proviso. And, by doing so, it was not only natural, but also became necessary to except something from strict observance of a condition of the enacting part, which immediately precedes the relevant proviso.
39. When looked at from all possible aspects including their variations and shades, I am of the view that out of two main modes of interpretation of proviso (a) to section 4 of the Tribunals Act visualized in the arguments addressed at the bar, the liberal one, which allows 120 clear days after the institutions of the proceedings for seeking departmental remedy referred to in the proviso, is in accord with all the relevant considerations discussed above. I have purposely kept out of consideration one of the two liberal interpretations canvassed by Mr. Khalid Ishaque, according to which the period of 150 days would be counted from the date of the communication of the order. It ignores the cases when the departmental appeal is filed at any time during the 30 days' period of limitation for departmental appeal under subsection (2) of section 23 of the Civil Servants Act. In other words, if a civil servant files a departmental appeal on the tenth day of the communication of the order, according to this interpretation, he should be allowed 20 days left out of the said 30 days' period to be added to 120 days after the filing of the departmental appeal, making the total of 150 days (10+20+90+30). This counting would negate truly, the intent and language of the proviso itself, which expressly requires that the 90 days are to be counted from "the date on which such appeal, application or re-presentation was so preferred." Thus if a civil servant chooses to avail of only 10 out of 30 days in filing the departmental appeal under subsection (2) of section 23 of the Civil Servants Act, on the 11th day, the operation of the proviso (a to section 4 of the Tribunals Act would start i. e., immediately on the filing of the said appeal) and the count for 90 days would then commence. And, if the departmental appeal is under the rules visualized in subsection (1) of section 23 of the Civil Servants Act, whereunder the period of limitation can be different from 30 days, the extreme interpretation involving concept of 150 days would become absolutely impracticable. Therefore, the other alternative canvassed by Mr. Khalid Ishaque in the field of liberal interpreta--tion, namely, a clear period of 120 days after the filing of the departmental appeal would be available to a civil servant for filing the appeal covered by the proviso (a) to section 4 of the Tribunals Act.
40. Leave to appeal in these matters was granted to settle the law on the questions involved and discussed in these opinions by us; because there was serious controversy and some conflict of authority also which 'had created some confusion and complexity as also hardship for the civil servants. The Sind Service Tribunals had adopted a restricted/literal view, while, as reported in the case of Mirza Anwar Beg 1979 PLC (C. S.T 141, decided by the Federal Service Tribunal, the liberal and beneficial view was taken-the provisions of the relevant law being pari-materia. Even in this Court, while refusing leave to appeal in two cases such certainty as results in a final view, was not provided. It may be remarked that while refusing leave to appeal, this Court many a time does not consider the case fit for appeal; and while determining the fitness all factors including those of law and merits might influence the decision to refuse leave to appeal. The seeming conflict, therefore, in some cases on the same subject is fully explainable. In the same category of refusal to grant leave to appeal would fall the two cases: one unreported of Abdul Bari (C. P. S. L. A. No. K-31 of 1978) decided on 20-3-1978 and referred to in the proposed judgment of my learned brother Shafi-ur- Rehman, J., and the other reported, in which the seemingly contrary view was taken by myself and my learned brother Nasim Hasan Shah, J., namely, the case of Malik Parvez Akhtar 1981 SCMR 490.
The former case is also incidentally, illustrative of the fitness factor in such summary decisions. The order of the Tribunal quoted therein shows that the appeal before it was barred by 57 days. While the relevant dates show that if the period is counted from the date of the original final order, that appeal was barred by 61 days. It is not improbable that in the said case also the Tribunal counted 120 days from the date of filing of the departmental appeal which was preferred within a couple of days of the original final order. Thus looked at, both the orders of refusal to grant leave assumed as correct, the counting of period of 120 days from the filing of the departmental appeal and not from the communication of the original final order. I would however, not base my views on these two decisions. Due to the fitness factor, they were not the expression of the law determined and declared as such. This very reason explains the fact that despite these two decisions, thereafter leave to appeal was granted a different registeries of this Court to examine the major questions involved in the controversy under discussion. With respect, therefore, in my view, the said two matters, in so far as the question of interpretation of the relevant provisos are concerned, would not be treated as the law declared and would have to be read, considered and applied accordingly in the context of the foregoing explanation; regarding the nature of the orders of refusal to grant leave to appeal in large number of cases which are not considered in their circumstances fit to grant leave to appeal, without, in terms saying so.
41. In the light of the view, I have taken in the foregoing discussion, regarding the commencement of the period of limitation of 30 days after the expiry of 90th day of the waiting period, from the date on which the departmental appeal, application or representation is preferred, for filing an appeal covered by proviso (a) to section 4 of the Sind Service Tribunals Act, 1973, it is held and found that all the impugned decisions of the Tribunal, to the contrary, are set aside, and the cases would be remanded for fresh decisions, in accordance with law. To this extent, these appeals are allowed.
There would be no order as to costs.
NASIM HASAN SHAH, J.-I agree.
ASLAM RIAZ HUSSAIN, J.-I agree.
SHAFI-UR-REHMAN, J.-Leave to appeal was granted under Article 212(3) of the Constitution in seven service appeals to examine a question of law of public importance, common to all of them viz the exact period of limitation available to a civil servant for filing an appeal under section 4 of the Sind Service Tribunals Act, 1973 (hereinafter referred to as the Act).
2. In Civil App eel No. K-53 of 1979 Haji Kadir Bux, a Deputy Director (P. W. D.), felt aggrieved by an order of the departmental authority passed on 7th June, 1977, whereby he was reverted, as a measure of punishment, as Sub-Engineer. He filed a review petition under section 23 of the Civil Servants Act on 25th June, 1977. On getting no response be filed an appeal under section 4 of the Act on 17th October, 1977. The Service Tribunal dismissed it as time-barred observing as follows:- "Appeal is dismissed as time-barred as it was filed beyond the period of 120 days against the original order as has been held by us in a number of cases. The original order was passed on 7-9- 1977 while the present appeal was filed on 17-10-1977. So it is time-barred by 10 days.
3. In the other three Civil Appeals Nos. K-128 of 1980 to K-130 of 1980, the appellants belonging to Excise and Taxation Department, two of them inspectors and the third a Sub-Inspector, were dismissed, as a measure of punishment, by separate orders but of the same date, that is 27th July, 1978. They asked for copies of certain documents on 5-8-1978, filed on 30-8-1978 what they termed as "tentative appeals" followed on 2-12-1978 by comprehen--sive appeals to the Chief Secretary.
Getting no response, on the 27th December, 1978, they filed appeal under section 4 of the Act but the Tribunal dismissed their appeals as time-barred holding that- "Since the appellants have filed departmental appeals, they could have waited till 90 days had expired from the date of communication of impugned order via. 1-8-1978 and they could came before the Tribunal within 30 days after the expiration of aforesaid 90 days and the appellants could come to the Tribunal by 30-I1-1978. Having not done so the petitions are time-barred."
4. In Civil Appeal No. K-4 of 1981, the appellant was a Sub-Inspector of Police who was dismissed by way of punishment. He applied on 2-5-1975 for review of the order under rule 10 of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973. Getting no response he filed an appeal on 30-8- 1975 under section 4 of the Act. The appeal was dismissed by the Tribunal on the following two grounds:- "Firstly, the right of departmental appeal has not been exhausted properly by the appellant. Instead of filing departmental appeal to the Chief Minister as laid down in the Sind Civil Servants (Appeal)
Rules 1975, be filed review petition to the Chief Secretary who had passed the impugned order.
There is no provision in the Rules for filing review petition to the said authority. Secondly, the appeal filed in this Tribunal is time-barred by 25 days."
5. In Civil Appeal No. K-54 of 1981 the appellant was a Deputy Superintendent of Police and was compulsorily retired on 28-11-1979 as a measure of punishment. The order of compulsory retirement was, it is said, received by him on 22-12-1979. He submitted a departmental appeal on 18-1-1980 and then filed an appeal under section 4 of the Act. The Tribunal held the appeal to be time-barred observing as follows: - "We have beard the appellant and find that the appeal is time-barred by 3 days as it was required to be filed within 120 days i. e. He had to file the appeal on 2-5-1980 whereas he filed the appeal on 5-5-1980. The period of limitation is being counted from 23-12-1979 as the day on which he was said to have received the copy, has to be excluded in computing the period of limitation. We have taken this view in a number of cases."
6. .In Civil Appeal K-77 of 1981 the appellant was a Civil Judge and First Class Magistrate and was dismissed from service on 2-9-1979. On 30-9-1979 he submitted a Review application under rule 10(1) of the Sind Civil Servants (Efficiency and Discipline) Rules, 1973. It was not disposed of when on 22-1-1980 he filed an appeal under section 4 of the Act. An application under section 5 of the Limitation Act was also filed along with the appeal. The Tribunal held that the appeal was barred by 27 days and a "false certificate was obtained" and a "false ground" pleaded for obtaining condonation of delay. The appeal was summarily dismissed.
7. The specific provision of law which has been the subject matter of controversy and requires interpretation is enacting part of section 4 and its first proviso. Section 23 of the Sind Civil Servants Act serves to provide the background. The relevant portions of these provisions are reproduce hereunder.
Section 4 of Sind Service Tribunals Act, 1973 "4. Appeals to Tribunals.-Any civil servant aggrieved by any final 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 within twelve months of the establishment of a Tribunal whichever is later, prefer an appeal to the Tribunal having jurisdiction in the matter: Provided that-
(a) where an appeal, review or representation to a departmental authority is provided under the Sind Civil Servant Act, 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 so preferred; and"
Section 23 of Sind Civil Servants Act, 1973 "23. Right of appeal or representation.-(1) Where a right to prefer an appeal or apply for review in respect of any order relating to the terms and conditions of his service is provided to a civil servant under any rules applicable to him, such appeal or application shall, except as may be otherwise prescribed, be made within thirty days of the date of such order.
(2) Where no provision for appeal or review exists under the rules in respect of any order or class of orders, a civil servant aggrieved by any such order may, within thirty days of the communication to him of such order, make a representation against it to the authority next above the authority which made the order: Provided that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade."
8. The Service Tribunal has taken the view that "there are two stages for filing the appeal to this Tribunal within a period of 30 days. The two stages are the original order and the order in departmental appeal". "The limitation commences from the time original order is passed but since departmental appeal is provided and 90 days are allowed to expire before coming to this Tribunal, the period of limitation which had already commenced is suspended and is revived on the expiry of 90 days." According to the Tribunal "the contrary view in fact nullifies the effect of the main provision which lays down a period of 30 days for filing the appeal to this Tribunal." Strength for the view was sought from principle contained in section 15(2), Limitation Act and requirement of notice in section 80, C. P. C. It was therefore concluded that a total period of 120 days was available, 90 days by way of exclusion in computation and 30 days as the substantive period of limitation. The Tribunal also placed reliance on a decision of this Court (C. P. S. L. A. K-31 of 1978) in which while refusing leave to appeal against such an interpretation of section 4 of the Act it was held that- "Although the section is not a model of elegant drafting, we agree with the construction placed upon it by the Tribunal and the learned counsel was unable to explain how the period of limitation could exceed the period of 120 days as calculated by the Tribunal."
9. The argument addressed by the learned counsel representing the parties fall into three distinct categories. The first line of argument advanced by the learned counsel foe the appellants is that the proviso to section 4, in this case, as an exception to the general rule, serves the purpose of an enacting clause and understood as such, it confers a right of appeal only on expiry of 90 days after the filing of a depart--mental appeal, review or representation, where provided. The appeal, review or representation must be filed in the manner and within the time prescribed for it under the law other than the Act and the date of its filing will provide the commencing time for computing the first period of 90 days, which to the learned counsel, appear, to be days of statutory hybernation or forced inactivity, and the second period of 30 days of limitation under section 4 of the Act would commence on the expiry of this first period of ninety days. On this argument the two periods will have a certainty and a definiteness about them but not so as regards the total period available from the date of the communication of the final order. It will vary depending upon the time that is taken in filing the appeal, review or representation. It could be any time within a period of 120 days to 150 days.
10. The other view most forcefully advocated by Mr. Khalid Ishaq, Advocate for one of the appellants, is that where a right of appeal is conferred and simultaneously with its creation an absolute bar is placed on its immediate exercise, then the right itself does not come into existence till its exercise is possible or permissible. On this view of the matter it is urged that the limitation does not and cannot run from the date of the communication of the order impugned but only on the expiry of 90 days waiting period after which the right itself acquires a more tangible form and becomes exercisable. The other limb of his argument is that the entire set-up of civil service laws and the exclusion of the jurisdiction of superior Courts under Article 212 of the Constitution offers, as promised, a substitutive and a more beneficial and expeditious remedy in respect of grievances of the civil servants. To make the law sensible workable, keeping in view also its remedial aspect, it is necessary that there should be no stultification of the right no artificial barriers with regard to limitation and no obvious hardship to the aggrieved civil servants. It is con--tended that where reasonably two equally plausible constructions of such a statutory provision are possible, being remedial, statute, the one which advances the ends of justice and allows relief to the largest number should be adopted in preference to the other view which is literal, restrictive and denies relief to the persons effected. The learned counsel, therefore pleaded that the full period permissible under the service laws for filing of a depart--mental appeal, review or representation- 30 days in the case of civil servants of the Sind on the strength of section 21 of the Sind Civil Servants Act and the Civil Service Appeal Rules-should be allowed as a matter of course and thereafter the statutory period of 90 days prescribe under the proviso and 30 days of substantive period of limi--tation provided under the enacting provision of section 4 of the Act. In this manner it is said that 150 days would be available and were available to the appellants from the date of the communication of the impugned order for approaching the Tribunal under section 4 of the Act.
None of the appeals according to the interpretation could be held to be barred by time. Yet another limb of his argument is that the matter of limitation being procedural, as it is, it should subserve rather than take over or control so as to impede-the rendering of substantial justice. In this connection he has relied upon Tahir Ali and others v. Chief Judge, Karachi Small Causes Court PLD 1963 SC 147 ; Ikramuddin Syed v. Chief Secretary, Government of Sind etc. 1979 SCMR 469 and Farid Sons Ltd. v. Federation of Pakistan PLD 1959 Kar. 568 .
11. The learned Advocate-General appearing for the Province of Sind, on the other hand, contended that the words of section 4 inclusive of the proviso present no difficulty either in understanding or interpretation or in the result. According to him, it is a complete Code with regard to the right created, the forum provided, and the procedure including the period of limitation. A reference to any other law for ascertaining matters provided for in that provision is not permissible. It is contended that the starting point of limitation is the period of 30 days from the com--munication of the order under appeal. The starting point of limitation has been prescribed by the enacting part of section 4. The proviso does not, in any way, affect or control this period of 30 days. What the provision accomplish is restricted to a limited number of cases coming under the scope of proviso as it concerns the computing of the period of limitation for which a benefit of 90 days has to be allowed. This enables the aggrieved party to avail of 120 days provided the requisite appeal, review or representation lies and has been filed. There is no element of hardship, there is no scope for misunderstanding, no different or alternative view possible or per--missible.
12. An examination of the different provisions of the Act makes it clear that it is a law complete by itself. It confers a right of appeals. It establishes a forum for entertaining appeals. It specifies the order which are appealable-final appellate or original ; made by a departmental authority in respect of any of the terms and conditions of service, excluding therefrom "an order or a decision of a departmental authority determining the fitness or otherwise of a person, to be appointed to or hold a parti--cular post or, to be promoted to a higher post or grade." It pinpoints the starting point of limitation-thirty days from the communication of the impugned order. It enumerates the conditions on the satisfaction of which alone can the right of appeal be exercised. These are the filing of a depart--mental appeal, review or representation where provided by the law and the compulsory waiting period of ninety days thereafter. It makes the jurisdiction of the tribunal exclusive by providing for the abatement of proceedings elsewhere pending. Provisions of sections 5 and 12 of the Limitation Act have been expressly made applicable, by reference. The Tribunal has been empowered to "confirm, set aside, vary or modify the order appealed against." Every concievable aspect, except one of the execution, implementation or the enforcement of the Tribunal's Order, has been attended to and appropriate provision has been made.
13. In understanding and interpreting section 4 of the Act inclusive of its proviso, some ground rules, elementary principles, the fundamentals of the construction of statutes have to be kept in view. It has to be presumed that the legislature understood the meaning of the words it used and that it intended to use them. This presumption has been universally recognized. For example in Warburton v. Loveland (1832) 2 D & C L 480 (H L) it was held that "where the language of an Act is clear and explicit, we must give effect to it, what--ever may be the consequences, for in that case the words of the statute speak the intention of the Legislature". In Miller v. Saiomon (1852) 7 Ex. 560 it was held that "the language used by the Legislature be clear and plain, we have nothing to do with its policy or impolicy, its justice or injustice, or even its absurdity, its being framed according to our views of right or the contrary we have nothing to do but 'to obey it, and administer it as we find it ; and I THINK to take a different course is to abandon the office of Judge and assume that of a legislator."
Similarly in Volume 82 of Corpus Juris Secundum (p. 549) dealing with presumptions that may be indulged in by Courts as aids in the construction of statutes it has been remarked that "there is a presumption that every word, sentence or provision was intended for some useful purpose, has some force and effect, and that some effect is to be given to each and also that no superfluous words or provisions were used. Conversely, it will not be presumed that the legislature inserted idle or meaningless verbiage, or superflous language or intended any part or provision to be meaningless, redundant or useless".
14. In Pakala Narayana Swami v. Emperor AIR 1939 P C 47 it was held that "when the meaning of the words is plain it is not the duty of the Courts to busy themselves with supposed intentions". This Court in the case of East and West Steamship Co. v. Queensland Insurance Co. PLD 1963 SC 663held that "it is not permissible for us whilst interpreting a statute to hold that any part thereof or any word therein is surplusage. Every word has to be taken into account and a meaning given to it".
Recently in the case of Messrs Hamdord Dawakhana v. Commissioner of Income-tax, Karachi PLD 1980 SC 84 this Court held that "it has never been held that Courts may depart from the plain meaning of the words employed" and that the "Court remained under an obligation to adhere to the plain meaning of the words employed in it".
15. The argument of the learned counsel for appellant has the effect of totally effacing from the statute the expression "within thirty days of the communication of such order to him" and its substitution by the expression "within thirty days of the expiry of the period prescribed in the Proviso.' This is violence to the language of the law. This is legislation in the guise of construction.
This amounts to subverting the scheme of legislation itself. The argument advanced by Mr. Khalid Ishaque has the effect of effacing or nullifying yet another portion of the statute, a part of the Ex.
560 Proviso that "a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred" and substituting it by the expression "a period of ninety days has elapsed from the date by which such appeal, application or representation should have been preferred." One may justifiably ask the question why such violence to the language, why such blatant substitution, why legislation in the garb of construction has become necessary. Is the language of the law confusing? Does the plain ordinary meaning render the statute unworkable.
Such does not appear to be the case here.
16. The language "may within thirty days of the communication of such order to him prefer an appeal to the Tribunal having jurisdiction in the matter" is familiar being one of a provision indicating the exact starting point of limitation. The general principle of law of limitation canvassed by Mr. Khalid Ishaque that limitation starts running only when there is no bar to the institution of the proceedings is unexception--able. This finds recognition in Vol. 53 of Corpus Juris Secunudum (Page 918) in words that "it may be stated as a general rule that the cause of action arises when the party has a right to apply to the proper tribunal for relief and the statute begins to run only when the cause of action has accrued and .Has fully matured." This general principle, however, yields to an express statutory provision prescribing the exact starting point of limitation not by reference to cause of action but by reference to date of communication of order. The time lost on account of the statutory clog on the exercise of that right has to be allowed in computing the period of limitation on the strength of the Proviso itself which in turn has its basis in the general principle enunciated in Volume 54 of Corpus Juris Secundum (Page 287) as follows "when by a legislative enactment parties are prevented from prosecuting their claims, the interval during which such prevention lasts 'is not to be counted as part of the time allowed by the statute of limitation". In the law under consideration the starting point of limitation is the date of communication of the order. The period of limitation is 30 days. The days of statutory prohibition are 90. So in all 120 days are available for filing an appeal-30 days as period of substantive limitation and 90 days of exclusion in computing the period of limitation. There is no hardship. The remedies arc concurrent. The aggrieved civil servant has the choice of waiting for the disposal of departmental appeal, review or representation where it lies and has been filed. Nothing turns in this case on whether Proviso is treated as an enacting clause or as a mere proviso effectively governed by an enacting clause.As long as the enacting clause and the Proviso are both read together, none in derogation of the other and every word is given a meaning, there is no difference in the result.
17. In Vol. 51 American Jurisprudence 2d (Page 599) a distinc--tion worth keeping in view in this case, between true limitation statute and statute creating new right with condition as to time has been examined in the following words- "Statutes of limitation are to be distinguished from statutes which create a right of action not existing at common law and restrict the time within which action may be brought to enforce the right. Although the general rule is that a true statute of limitation extinguishes only the right to enforce the remedy and not the substantive right itself, the limitation of time for commencing an action under a statute creating a new right enters into and becomes a part of the right of action itself and is a limitation not only of the remedy but of the right-also the right to recover depends upon the commencement of the action within the time limit set by the statute, and if that period of time is allowed to lapse without the institution of the action, the right of action is gone for ever. The statute is an offer of an action on condition that it be commenced within the specified time, and if the offer is not accepted in the only way in which it can be accepted, by a commencement of the action within the specified time, the action and the right of action no longer exist and the defendant is exempt from liability."
The same subject has been dealt with at some greater length in (1949-50) 63 Harvard Law Review (Page 1177) under the title "Developments in the Law-Statutes of Limitations". The inequities and the hardships of the situations indicated therein have been somewhat ameliorated in the Act by incorporating a Proviso to section 4 and provisions of section 5 and section 12 of the Limitation Act, and by applying them to the proceedings under the Act.
18. There is yet another principle of law relevant to the matter under consideration. It is that where two or more distinct methods of review are provided by statute, compliance is to be with the provisions prescribed for that one of them to which the party seeking review resorts (4 A C J S 68).
Here the two statutory remedies against an original final order are the one provided in section 23 of the Civil Servants Act and the other in section 4 of the Act. The departmental appeal, review or representation filed under section 23 Civil Servants Act will be governed by its own terms and conditions while an appeal to the Tribunal under section 4 of the Act is governed by the conditions prescribed therein. There cannot be transposition of the provisions of the one into the other, no extension of time, no relaxation of the conditions by reference to the other statute. This principle has been recognized in the domain of civil procedure in two decisions S. R. M. S. Chokkalingam Chetty v. N. L. N. Lakshmanan Chetty AIR 1920 Mad. 633 and Khasomal and another v. Bacho and another AIR 1929 Sind 38
19. It is the supposed harshness of the prescribed period of limitation and its computation under section 4 of the Act that has prompted the learned counsel for the appellants to suggest substitution, additions and deletions in the statute with a view to arrive at results favourable to the appellants. In the case of Nagendra Nath Dey and another v. Suresh Chandra Dey and others AIR1932PC165 it was held that "the fixation of periods of limitation must always be to some extent arbitrary and may frequently result in hardship. But in construing such provisions equitable considerations are out of place and the strict grammatical meaning of the words is their lordships think the only safe guide". In General Accident Fire & Life Insurance Corporation Ltd. v.
Janmahomed Abdul Rahim AIR1941PC6 it was held that "very little reflection is necessary to show that great hardship may occasionally be caused by statutes of limitation in cases of poverty, distress and ignorance of rights yet the statutory rules must be enforced according to their ordinary meaning in these and in other like cases." The same principle has been expressed in (53 C J S 912) as follows: "Statute is not to be subjected to judicial exceptions, arising from a supposed equity, in other words, the Courts cannot engraft on the stature exceptions or qualifications not clearly expressed in the statute itself, or clearly established by judicial authority".
20. It follows therefore that the language of section 4 and its Proviso presents no formidable difficulty either in its understanding, or interpretation or in its application to individual cases. The aggrieved civil servant has two concurrent remedies in cases governed by the Proviso. His choice of the remedy also makes him the arbiter of the modalities. He can avail of the entire thirty days in preferring departmental appeal, review or represen--tation so as to be left with only one day of limitation on the expiry of ninety days, or he may file the departmental appeal, review or representation the very next day of receiving the impugned order so as to avail of the entire period of thirty days after the expiry of ninety days for filing an appeal to tae Tribunal. It cannot be said that the statutory prescription of 30 days for performing these two acts, that is, an appeal, review or representation to the departmental superior and filing of an appeal to the Tribunal is unreasonably short, or makes the statutory provision unworkable 3 he other view suggested by the learned counsel for the appellants is not possible without doing extreme violence to the language of the statute. We, therefore, approve of the view taken by the Tribunal and most respectfully concur with the view already taken by this Court. The result is that all these appeals fail and are hereby dismissed Keeping in view the nature of the controversy, the parties are left to bear their own costs.
ZAFFAR HUSSAIN MIRZA, J.-I have had. The privilege of going through the elaborate judgment proposed to be delivered by my learned brother Muhammad Afzal Zullah, J. But, with utmost respect for his views, I am unable to persuade myself to agree with them. I have also had the advantage of reading the proposed judgment of my brother Shafi-ur---Rehman, J., and am in respectful agreement with the view expressed and the conclusion reached therein. However, I feel tempted to add a few observations of my own.
2. The facts and circumstances leading to these appeals, and the arguments addressed by counsel for the parties, need not be reiterated as these have already been elaborately recorded in the proposed judgment of Shafi-ur-Rehman, J.
3. A plain reading of section 4 of the Sind Service Tribunals Act, 1973,shows that it is not primarily a statute of limitation, but a complete code in itself for adjudication and determination of disputes brought before the Tribunal established by its provision by way of appeal in respect of orders of departmental authorities, relating to terms and conditions of service of Civil Servants. For present purposes, therefore suffice it to say, that section 4 of the said Act does not merely prescribe a period of limitation for an already existing right to remedy at common law, but the right to remedy itself, is the creature of this special law, which is clearly regulated by its provisions as to the manner of its exercise. This peculiar aspect of the nature of the statute, is to be kept in mind, in approaching the question of the principles that ought to govern its construction. Thus in McGirr. v. Pritchard ('58)
2 U Ap. 467 it was observed :-- "We are of the opinion that since the right of action for death by a wrongful act is wholly statutory and must be taken with all the conditions imposed upon it, the burden was on appellant to bring him-self within the requirements of the statute and if he creating a right to institute a suit for damages requires the action to be brought within a specified time, it is more than an ordinary statute of limitation but, goes to the existence of the right itself. It is a condition attached to the right to sue and must be complied with and if a suit is not instituted within the time required by the statute giving the right to recover for a wrongful act, it cannot be, by the amendment to the Practice Act in question, extended, nor can the amendment relieve the appellant from performing the necessary conditions precedent to the right of recovery.---
4. Even as to statutes of limitations as such, the following remarks by Crawford in his treatise on Statutory Construction, at page 715, are noteworthy :- "At one time there was a tendency upon the part of the Courts to look with disfavour upon statutes of limitation and to subject them to a strict construction. Today, however, such statutes are generally liberally construed. But the Court will not give them a strained con--struction in order to avoid their intended effect, nor create an exception where none exists, regardless of the nature of the exception. In fact, the language should be given its ordinary meaning, the statute construed as a whole, and effect fully given to every part."
5. That the enacting part of section 4 provides for a period of 30 days for filing an appeal, to be computed from the time of communication of a final order, whether original or appellate, admits of no ambiguity or doubt. The plain meaning of the language employed yields no two meanings.
Another aspect which needs to be pointed out, is that this provision, apparently presents no difficulty, in so far as appeals against the appellant orders are concerned, for apparently the proviso, is not attracted in such cases. The controversy has arisen, only on account of the proviso coming into play so far as original final orders passed by the departmental authorities are concerned. To my mind the word "final" used in respect of both original as well as appellate orders, only means, orders which dispose of the controversy and terminate the proceedings, either before the original departmental authority or appellate authority. So that the intention, was to restrict the right of appeal to such orders and not to extend the right of appeal to every order passed by such authorities which may be interlocutory or a mere step in the further progress of the proceedings.
6. In other words, the finality of an original order is not in the least dependent on or conditioned by the availability of a right of appeal within the department or outside it, or on the filing of such an appeal or on the expiry of 90 days from the filing of such an appeal. It, there--fore, appears to me that there is nothing in the provisions whirl: subjects the starting point of limitation to postponement, which clearly commences from the date of the communication of the order as provided. That allowance should be made for a necessary and mandatory period of waiting, so that a condition precedent, for the exercise of right of appeal can be fulfilled, is a matter which in no way has the effect of preventing the running of the limitation period.
7. It is well settled that what is reasonable time is a matter largely of legislative discretion. Like all other general principles of law, therefore, the principle that the cause of action accrues to an aggrieved party only when all bars to or limitations upon the right to institute proceedings disappear, is subject to legislative will clearly expressed in the statutory provisions. It can hardly be disputed that such general principles are not sacrosanct and do not stand on a higher footing, beyond the reach of legislative power to be qualified or substituted by express intendment.
8. There can be no cavil to the principle that out of the two possible interpretations, the one which is remedial and beneficial should be preferred, in interpreting statutes which provide for remedies at law. But such a principle would obviously come into play when the provision in question ' is capable of two alternate interpretations on the language employed. The question in issue in the present case is not whether this principle is attracted or not, but whether there is at all scope for two interpretations, on the language used in the statute. In my humble opinion the language of the statute does not admit reasonably of any other interpretation. As already pointed out all strained construction contrary to the intended effect has to be avoided even in regard to remedial statutes.
To my mind there appears to be no insurmountable difficulties in the working of the provisions in adopting the interpretation placed upon the provisions by my learned brothel Shafi-ur-Rehman, J.
ORDER OF THE COURT In view of the majority opinion of the Court, all the impugned decisions of the Tribunal, to the contrary, are set aside, and the cases would be remanded for fresh decisions in accordance with law. To this extent these---appeals are allowed. There would be no order as to costs.