CH. MUHAMMAD IBRAHIM ZIA, CJ. The titled appeal by leave of the Court has been directed against the judgment of the Service Tribunal dated 10.07.2018, whereby the appeal filed by the appellant, herein, has been dismissed in limine.
2. The facts forming the background of the captioned appeal are that the appellant and private-respondent, herein, are serving as Social Welfare Officer B-17 in the Social Welfare Department who were appointed as such on the recommendations of the Public Service Commission on 03.10.1998. The private-respondent, herein, stood transferred and appointed vide notification dated 28.03.2017 as Assis tant Director in Women Development Department after its bifurcation. The appe llant, herein, feeling aggrieved from the aforesaid notification, challenged the legality and correctness of the same before the Azad Jammu & Kashmir Service Tribunal by way of appeal on 10.07.2018. His precise case was that the notification dated 28.03.2017 has been issued by the authority arbitrarily and secretly which affects the service rights of the appellant, herein. It was claimed in ground 'f' of the memo of appeal before the Service Tribunal that the appellant, herein, came to know about the issuance of the notification dated 28.03.2017 after dismissal of the writ petition filed by the private-responde nt, herein, when somebody told him that some case has been decided against him in the High Court. The appell ant, herein, obtained the photo- copy of the judgment on 05.07.2018. It was stated that the appellant, herein, applied for certified copy of the judgment passed by the High Court on 06.07.2010 which was issued to him on 09.07.2018. It was further stated that after obtaining the certified copy, the appeal before the Service Tribunal was duly filed on 10.07.2018, hence, the same was within limitation from the date of knowledge. The learned Service Tribunal, after necessary proceedings, through the impugned judgment dated 11.07.2018, has dismissed the appeal in limine on the ground of limitation.
3. Mr. Asghar Ali Malik, Advocate, the learned counsel for the appellant after narration of necessary facts submitted that the learned Service Tribunal through the impugned judgment has dismissed the appeal in limine against the facts and law. The appeal has been dismissed solely on the ground of limitation without proper appreciation of stated facts and material record. The appellant in ground "F" of the appeal has categorically alleged that he got knowledge of the impugned order on 05.07.2018 and without any delay from the date of knowledge after obtaining certified copies, he filed appeal before the Service Tribunal on 10.07.2018. The averments of the memo of appeal were fully supported by the personal un-rebutted affidavit. According to the enunciated principle of law any alleged fact supported by the un-rebutted affidavit has to be properly weighed and considered. He further argued that under the provisions of Section 4 of the Service Tribunal Act, 1975, the limitation will start from the date of communication and communication is a question of fact which requires proof. Without providing opportunity of hearing to the parties or having sufficient material or evidence on the record, the dismissal of the appeal in limine amounts to mis-carriage of justice, thus, the impugned order is not sustainable.
4. Conversely , Sardar Karam Dad Khan, Advocate-General and Mir Abdul Latif, Advocate opposed the appeal on the ground that the appeal has been filed after not days but years' delay without any legal sufficient reason. The learned Service Tribunal has rightly dismissed the appeal on the sole point of limitation. The Advocate-General further argued that according to Azad Jammu & Kashmir Service Tribunal (Procedure) Rules, 1976, if any appeal is filed beyond prescribed limitation, the same shall have to be accompanied by a petition supported by any affidavit setting forth the cause of delay and in this case, even this statutory provision has not been complied with.
5. We have heard the arguments of the learned counsel for the parties and examined the record made available. According to the undisputed facts, through the impugned order, the appeal has been dismissed in limine solely on the ground of limitation, hence, no other detail discussion of facts is required. The learned Member of Service Tribunal has reproduced ground "F" of the memo of appeal in which the appellant has categorically alleged that he got knowledge of the impugned order on 05.07.2018 and in support of annexure "F", an affidavit, "PF", has also been filed. Another affidavit, "PG", has also been filed in support of other contents of the appeal. As the other party was not summoned and at the stage of preliminary healing ordinarily the Courts have to take into consideration the averments of the memo. of the appeal and supportive material and if on the face of it the same is found not maintainable that can be dismissed in limine , but if the alleged fact is also supported by the un-rebutted affidavit that cannot be brushed aside and at this stage, dismissal of the appeal in limine is not strictly according to the spirit of law and the principle of administration of justice. The question of communication of the impugned order is not merely question of law and it is also question of fact and the Service Tribunal is vested with the powers for determination of question of fact to record evidence, thus, such-like proposition can be best resolved after providing opportunity of hearing to the parties and providing them to bring on record the required proof or material, whereas, in this case, the dismissal of the appeal in limine appears to be pre-mature. In this state of affairs, we are constrained to accept this appeal, setting aside the impugned order and admit the appeal for regular hearing and leave all the propositions open to be resolved by the Service Tribunal after conducting proceedings according to law and hearing of the parties.
Consequently , the appeal is remanded to the Service Tribunal for deciding the same after conducting proceedings according to law . Parties will bear their own costs.