1. ' MUSHTAK ALI KAZI (CHAIRMAN).-This service appeal is directed against an order of the President, General Agha Mohammad Yahya Khan, passed under Martial Law Regulation No, 58 dismissing the appellant, a Superintendent Engineer in Sind P. W. D. On or about 24th March 1970.
2. ' This Martial Law Regulation No, 58 called, "Removal from Service (Special Provisions) Regulation." was promulgated by the Chief Martial Law Administrator on 2nd December, 1969. By an order dated 10th December, 1969 issued by the Government of West Pakistan Services and General Administration Department from Lahore the appellant was placed under suspension by Chief Secretary to Government of West Pakistan in pursuance of the orders of the President and Chief Martial Law Administrator dated 2nd December, 1969. On 1st January, 1970 the appellant was served with a notice and charge-sheet and the reply to the charge-sheet was requisitioned within seven days. The charge-sheet contained 13 charges alleging that the appellant as Executive Engineer, Thatta Roads Division, Hyderabad was guilty, of misconduct in respect of a contract for collection of stone material. That he passed bills amounting to Rs, 1,22,360 without taking the measurement; that the stone material was neither tested nor the stocks could be measured. That he purchased the car from Haji Mohammad Ghafoor contractor at a ridiculously low price for his brother-in-law. That he obtained a radio-gram without payment from a contractor and was thus guilty of corruption. That while he was Executive Engineer Jacobabad he caused wrongful loss to Government amounting to Rs, 85,470 in purchase of bricks. That due to defective design, the staircase of Thatta District Hospital collapsed and he was therefore liable for misconduct. That he had been shown to be inefficient and corrupt in annual confidential reports by the Reporting Authority. That he had acquired properties dis-proportionate to known sources of income. He was allowed opportunity of hearing before the Chairman Tribunal M. L. A. Zone 'A'. The statement of allegations were appended to this charge-sheet, ' The copy .Of the annual confidential reports from 1952 to 1962 shows, that he lacked initiative and drive, was too soft, had loose control over the staff, was responsible for collapse of roof of staircase of Thatta District Hospital, had not given good accounts of his ability, was reported to be corrupt and was involved in corruption case though acquitted and had acquired assets including, bungalow in Latifabad, at in Karachi.
3. ' The appellant was earlier found guilty in respect of some of these charges and dismissed from Government service on 10th March, 1966 but he made representation to the Government and be was reinstated. The main defence of the appellant was that the allegations were about 13 years old and the charges were the result of malice borne against him by Mr. Wazir Husssain Shah, Deputy Superintendent of Police, Anti-Corruption Department.
4. ' After his dismissal by the Chief Martial Law. Administrator, the appellant prefered a review application to the same authority for re-consideration of his case. His grievance was that he had not been supplied the actual order resulting in his dismissal. The appellant then preferred this appeal under section 4 of the Sind Service Tribunals Act, 1973 on 7th December 1974 after establishment of this Tribunal, to exercise jurisdiction in respect of service matters by Sind Act XV of 1973 dated 5th December, 1973.
5. ' A preliminary objection has been raised by Mr. Nasrullah Awan on behalf of the Government of Pakistan and Secretary Establishment Division, Rawalpindi that this appeal dated 7th December, 1974 is barred by limitation and is liable to be rejected outright. The arguments of the counsel for the parties were therefore heard in respect of this preliminary objection as to limitation.
6. ' Mr. Nasrullah Awan has argued, that the order of dismissal of the appellant under Martial Law Regulation-58 was published on 24th March 1970. He has preferred this appeal before the Sind Service Tribunal on 7th December 1974 ; under section 4 of the Sind Service Tribunals Act 1973 promulgated on 5th December, 1973, a 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 30 days of the communication of such order to him or within 12 months of the establishment of a Tribunal whichever is later, prefer an appeal to the Tribunal having jurisdiction in the matter. Under section 3 of the said Act, it was provided that the Government may by notification in the official gazette, establish one or more Tribunals and if more than one Tribunal was established the Government shall specify the classes of civil servants and territorial limit within which such Tribunals shall exercise jurisdiction. The Tribunal was to consists of a Chairman and two members. In pursuance of this provision the Government of Sind, Services and General Administration Department issued notification dated 4th November, 1973 that in exercise of the powers conferred by section 3 of the Sind Service Tribunals Ordinance, 1973 the Government of Sind are pleased to establish a Service Tribunal for the Province and to appoint Mr. Hamzo Khan, District and Sessions Judge as its Chairman. The names of the two Members of the Tribunal were to be notified later.
7. ' It has been argued by Mr. Awan that the Service Tribunal was thus established on 24th November.
8. 1973 and the appellant had to prefer his appeal within 12 months of the establishment of the Service Tribunal by 23rd November, 1974. That the appeal having been filed on 7th December, 1974 was delayed by 13 days.
9. ' Article 212 of the Constitution of the Islamic Republic of Pakistan 1973 providing for establishment of Service Tribunals, reads as under :- "(1) Notwithstanding ' anything hereinbefore contained, the appropriate legislature may by Act, establish one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of-
(a) matters relating to the terms and conditions of person in the service of Pakistan, including disciplinary matters ; matters relating to claims arising from tortious acts of Government, or any person in the service of Pakistan or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant ; or
(c) matters relating to the requisition, administration and disposal of any property which is deemed to be enemy property under any law.
(2) Notwithstanding anything hereinbefore contained where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends : ' Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act, of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, Parliament by law extends the provisions to such a Court or Tribunal,"
10. ' Mr. Manzoor All Khan on behalf of the appellant, has drawn our attention to the proviso that the provisions of clause (t) shall not apply to a Tribunal unless the Provincial Assembly has passed a resolution extending the provisions to such Tribunals. In the opinion of Mr. Manzoor All Khan the Tribunal could function and exercise jurisdiction only after passing of the said resolution by the Provincial Assembly which in that case was done on 6th May, 1974. That the period of 12 months therefore started running from 6th May, 1974 and the appeal could be filed upto 5th May, 1975.
11. ' Mr. Manzoor Ali Khan has next argued that even otherwise a Tribunal cannot be said to have been established until such time that it could effectively function. That under the Government notification only the Chairman was appointed on 24th November, 1973 and the Members were appointed in March, 1974. Therefore the Tribunal was constituted from that date.
12. ' Lastly it has been argued that the word "establish" used in section 4 of Sind Service Tribunal Act, 1973 means establishment of the Tribunal having jurisdiction or in other words establishment with power to function as such. That the resolution of the Provincial Assembly in fact conferred jurisdiction on the Tribunal as a whole and not for a limited purpose of abatement of cases pending before the Civil Courts. Mr. Manzoor All Khan has cited certain decisions in support of his contention.
13. ' It may however be pointed out in this connection that after the Sind Service Tribunals Act, 1973 promulgated on 5th December, 1973 the Government of Sind issued the relevant notification dated 24th November, 1973 establishing a Service Tribunal for the Province and appointing the Chairman.
14. It is true that the Members namely Messrs. Abdul Kadir G. Muhammad Ally and Abdul Wali Makhoom were appointed by separate notifications, the last of which was dated 7th April 1974 but the registry of the Tribunal and the Chairman had started working and the service appeals were being received in the registry. For the purpose of limitation the Tribunal had been established on that date, though it started hearing the appeals only after appointment of the two members. The reference to Tribunal having jurisdiction in section 4 of the Sind Service Tribunal Act 1973, means the establishment of that particular Tribunal, for that class of civil servants, having jurisdiction within the territorial limits as mentioned in section 3 of the said Act.
15. The proviso to Article 212 of the Constitution is applicable only to clause (2) of Article 212: This clause relates to abatement of service cases, pending in other Courts. Such Courts ceased to have jurisdiction and the cases abated after passing of the resolution to that effect by the Provincial Assembly. The decisions, quoted by Mr. Manzoor Ali Khan are in respect of abatement of cases under clause (2) of the Article only. The clause (1) of the Article relates to establishment of the Administrative Courts or Tribunals by an Act and the Act was passed on 5th December, 1973 in place of the earlier Ordinance 11 of 1973 dated 7th September, 1973 providing for actual establishment of Tribunal by Government notification, which was published on 24th November, 1973. The resolution of the Provincial Assembly is contained in Act XXXII of 1974 and it relates to the ouster of jurisdiction of the Civil Courts in respect of terms and conditions of service of civil servants.
16. ' For instance in the un-reported decision of the Supreme Court dated 20th September, 1980 in Civil Appeals No, K-15, K- 16 and K--17 of 1973 it was observed that the crucial date was 6th May, 1974 when the provisions of sub-Article (2) of Article 212 of the Constitution were extended to the Sind Service Tribunal but this decision related to the abatement of suits under sub-Article (2) and not to establishment of the Tribunal under sub-Article (1) of Article 212.
17. ' Mr. Manzoor Ali Khan has cited the case of Khan Faizullah Khan v. Government of Pakistan (1). That case relates to sub-Article (2) of Article 212 regarding abatement of proceedings pending in other Courts. The relevant portion reads as under :- ' '"It will be seen that the language of Article 212 leaves no doubt that as and when an appropriate Tribunal is established with jurisdiction to deal with the matter in controversy only then any proceedings concerning thereto pending in any other Court shall abate,"
18. The other ease cited is Federation of Pakistan v. Muhammad Siddiq (2). That case also is in respect of the crucial date for abatement of proceedings in other Courts. The question involved in the present appeal is not in respect of abatement of proceedings pending in the Civil Courts contemplated under Article 212 sub-article (2). It relates to Article 212 sub-article (1) regarding establishment of Service Tribunals in respect of matters relating to terms and conditions of service.
19. Under sub-Article (1) the appropriate legislature may by Act establish" one or more Administrative Courts or Tribunals. Under this sub-Article the Provincial Assemblies passed Service Tribunal Ordinances or Acts and by notification established the Service Tribunal in such Province. Thereafter the {{FOOT NOTE}}
(1) PLD 1974 SC 219 (2) 1980 SCM R 443 {{FOOT NOTE}} ' resolutions by the Provincial Legislature were passed extending the provisions of clause (2) of Article 212 of the Constitution. This resolution was incorporated in Act XXXII of 1974 promulgated on 6th May, 1974. Section 2 of this Act reads as under :- "2. Provisions of Article 212 (2) to extend to Provincial Services Tribunals. The provisions of clause (2)
20. Article 212 of the Constitution of the Islamic Republic of Pakistan shall extend to the Service Tribunals respectively established under the Acts of the Provincial Assemblies of the North West Frontier Province, the Punjab and Sind."
21. The above Act therefore, does not establish the Service Tribunal but only extends sub-clause (2) to the Service Tribunals already established. The Service Tribunals so established could receive the service appeals for the purpose of limitation. The sub-article (2) of Article 212 only relates to pending cases before other Courts and the proviso clearly states that the resolution of the Provincial Assembly was required for application to clause (2) only to Administrative Courts or Tribunals already established under clause (1). Even before the passing of this resolution by the Provincial Assembly matters were being received in the Tribunal already established even before the appointment of the Chairman. Therefore for the purpose of limitation the Tribunal was established as soon as the relevant notification under the Sind Service Tribunals Act, 1973, promulgated on 5th December, 1973 was passed establishing the Tribunal for the Province of Sind on 24th November, 1973. The crucial date for filing of the appeal in the registry is not the same as the crucial date for abatement of the proceedings pending in other Courts. Just as nature, adheres a vacuum, in the same manner, no wrong is left without an effective remedy even for a moment.
22. The remedy of issue of injunctions etc. In service matters could not be taken away from the Civil Courts in pending cases until the Tribunals actually started functioning and exercising similar powers. The filing of appeals in the registry was not however hampered and the appeal could be legally filed, though they could not be decided till the Tribunal could effectively function. The time of 12 months therefore started running after the establishment of the Tribunal under sub-clause (1) while sub-clause (2) relating to abatement of proceedings in other Courts came into force later on when the resolutions were passed in the Provincial Assemblies. Had this not been the case, the proviso regarding the resolution of the Provincial Assembly should have been made applicable to Article 212 as a whole instead of only to clause (2) relating to abatement.
23. ' We are accordingly of the view that the appeal could have been filed before the Tribunal was established by the Government notification and the appellant was not required to wait till 6th May, 1974 when Act XXXI1 of 1974 was promulgated. Consequently the present appeal would be barred by limitation having been filed on 7th December, 1974 when' 12 months' time expired on 23rd November, 1974.
24. ' The appellant did not file any application under section 5 of the Limitation Act for condonation of delay at the time of filing of the. Appeal on 7th December, 1974. He filed a belated application under section 5 of the Limitation Act long afterwards as late as 12th March, 1975. It is a well-recognized principle that a petition filed out of' time, must show on the face of it the reason for delay, and there must further be an express prayer for condo nation of the delay under section 5 of the Limitation Act (AIR 1962 Patna 73 ). It would be difficult to see how such application made at a late stage could be considered (A. I. R. 1938 Nag. 233). Mr. Manzoor Ali Khan has therefore frankly stated that he cannot and does not press the application for condo nation of delay under section 5 of the Limitation Act.
25. ' In the result the preliminary objection of the counsel for respondents is allowed and the appeal is dismissed being barred by limitation with no order as to costs.