' SHER ZAMAN CHAUDHRY, J.-This appeal is directed against the judgment of the Service Tribunal.
Passed on 14-7-1981, The facts leading to. The present controversy are that the appellant, Abdul Khaliq, a D. S. P. Was retired from service vide Government order, dated 27-12-198). Feeling aggrieved by the order of his retirement passed by the respondent-Government the appellant filed a petition for review on 20-1-1980 which however remained either undecided or if disposed of the findings were never conveyed to the appellant by the respondent. The appeal filed under section 4 of the Service Tribunal Act, by the appellant challenging the legality of the Government. Order dated 27-12-1980 was dismissed by the Service Tribunal on 14-7-1981, on the point of limitation.
2. Feeling dissatisfied with the order of dismissal of his appeal passed by the Service Tribunal a petition for leave to appeal was filed which was allowed by this Court vide its order, dated 23-11- 1981, to consider as to whether :- "In an appeal filed under section 4 (a) of the Service Tribunal Act the time allowed for filing the same would be ninety days plus the period allowed for filing review petition and a further period of ninety days which is the waiting period after filing the review as was submitted by the learned counsel for the appellant."
3. Mr. B. A. Farooqi, the learned counsel for the appellant, argued that the learned Service Tribunal failed to appreciate the true significance of section 4 of the Azad Jammu & Kashmir Service Tribunal Act, 1975. The impugned order having been based on an incorrect interpretation of section 4 of the. Act was therefore, according to him, bad in law and as such was liable to be set aside.
Elaborating the point the learned counsel submitted that 30 days period allowed to an aggrieved civil servant under the terms of section 4 of the Act to file appeal in the Service Tribunal was applicable only if the order passed by the departmental authority, whether original or appellate was final. If on the other hand an appeal or review against that order before the departmental authority was a condition precedent and where, before the final determination of such a review or appeal by the authority, appeal was filed under the proviso to section 4 of the Act, as was done in the present case, the period of limitation would be the time requisite for filing the review plus the waiting period of 90 days after which the review or appeal was'to be made. As proviso (a) to section 4 does not prescribe as to within what period the appeal could be' filed before the Tribunal after the expiry of waiting period so therefore, on the same analogy a further period of ninety days was available to a civil servant to file appeal after the expiry of the waiting period. The appeal, submitted the learned counsel, being within time was wrongly 'dismissed as time-barred. By the learned Service Tribunal. The impugned order of dismissal therefore, according to him, could not be sustained.
4. Raja Muhammad Akram Khan, the learned Advocate-General, on the contrary submitted that in a case where an aggrieved civil servant has filed a review petition before the departmental authority, the period allowed to file appeal before the Tribunal, under proviso (a) of section 4 of the Service Tribunal Act would be ninety days from the date when the, review petition' was filed plus thirty days allowed under the main part of the section. Since the review petition by the appellant was filed on 20-1-1981 the period of ninety days as provided under the proviso would end on 20th April, 1981. By adding thirty days as envisaged under section 4 of the Act, the appeal instead of 27th of May 1981 should have been filed on 20th of May, 1981, In this view of the matter the appeal before the Tribunal having been filed.7 days beyond the period of limitation, the order under appeal was perfectly in accordance with law and open to no exception. In support of his contention the learned Advocate-General referred to 1982 SCMR 583.
5. We have carefully considered the points raised by the learned counsel for the parties.. A plain reading of section 4 of the Service Tribunal Act, clearly shows that a civil servant aggrieved by an adverse order passed by the departmental authority can directly approach the Service Tribunal by way of appeal provided the order-a-ought to be challenged was a final order and against which no appeal or review to the departmental authority was necessary under law as a condition precedent to an appeal before the Tribunal. The period of limitation to appeal to the Tribunal in such a case would be within 30 days of the passing of such order.
6. In a case where a civil servant, on the other hand aggrieved by an order passed by the authority could under law go in appeal or file review petition before the authority, he must first approach, the authority by way of appeal or review within the period prescribed under law before going in appeal to the Service Tribunal.
7. After having filed the appeal or review petition before the departmental authority a civil servant could either wait till the time his appeal or review petition is finally decided, no matter how long does it take the departmental authority to take a decision and then. In case of adverse finding, go in appeal before the Tribunal within thirty days or on the other hand after the expiry of -ninety days of waiting period as stipulated. Under the proviso (a) of section 4 file an appeal before the Tribunal against the original adverse order passed by the authority. In a case where no appeal or review against an adverse order, before the departmental authority has been provided under law or if provided and the authority passes a final order on such a review or appeal, the period of limitation under the main part of notion 4 of the Act would clearly be thirty days after passing of the original or appellate final order whatever the case may be.
8. The proposition needing determination in the present case however is- ft(a) as to what be the period of limitation where a civil servant after filing appeal or review before the departmental authority does not want to wait till the time it is finally disposed off ;
(b) when precisely would the waiting period of ninety days start running, would it be from the date on which the review petition was actually filed or from the end of the period allowed for filing the review petition ?
9. The clear perception of the point involved and its proper resolution depends on careful examination and appreciation of section 4 of the. Service Tribunal Act which reads:-- "Appeals to Tribunal.--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 including disciplinary matter may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, pectin an appeal to the Tribunal : ' Provided that-
(a) where an appeal, review or representation to a departmental authority is provided under any law, regulations or rules for the time being enforced, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review of representation to such departmental authority and period of ninety days has elapsed from the date on which such appeal, application or representation was to be preferred."
10. The best rule of interpretation is by the plain reading of the statutele The language used in the statute, if clear and unambiguous, is best manifestation of the intention of the Legislature. It is important to note that here in proviso (a) to section 4 of the Service Tribunal Act, the words used are "Period or ninety days has elapsed from the date on which such appeal, application of representation was to be preferred" and not "was so preferred". It is thus clear that the count for the start of waiting period of ninety ,B days would be from the date when the period allowed for filing review% petition ended and not the date when it was so filed.
11. We have with utmost care gone through the report of the case titled Kadir Bux v. Provitve of Sind on which reliance has been placed by the learned counsel for the respondent. In that case, it was no doubt held that the countdown would start from the date on which such appeal, application or representation was so preferred. The learned Judges of the Supreme Court of Pakistan were justified in arriving at such a conclusion as the language of the proviso (a) to section 4 of the Sind Service Tribunal Act was to the same effect. The position however is different so far as the language employed in Azad Jammu & Kashmir Service Tribunal Act, 1975 is concerned. It admits no such interpretation. The relevant provisions of both the Acts. If placed in juxtaposition and considered carefully, would made the difference between the two significantly obvious. The words used in the closing part of the proviso (a) of section 4 of the Sind Service Tribunal Act, are "was so preferred." whereas section 4 (a) of the Azad Jammu & Kashmir Service Tribunal Act, 1975 the words used are "was to be preferred." The principle thus enunciated in Kadir Bux's case is distinguishable and has no relevancy to the present case.
12. Adverting the next point raised on behalf of the appellant, we are unable to agree with the learned counsel for the appellant that the period allowed for filing the appeal before the Service Tribunal after the expiry of waiting period of ninety days as required under the proviso would again be ninety days. The period of limitation for filing appeal before the Served Tribunal would be within thirty days of the passing of final order whether it be original or passed on appeal or review as provided under the main part of section 4 of the Act. The only difference is that if the appeal has been filed under the provisions of proviso (a) to. Section 4 then there is a wait in period of ninety days from the date on which such appeal or review before the authority was to be filed. .So under the proviso bar has been placed on the right to appeal to the Tribunal. As statute providing limitation itself contains a proviso the period of thirty days would remain suspended. The limitation for filing appeal before the Tribunal under the proviso would therefore, be the period allowed when the appeal or review was to be made to the departmental authority plus the waiting period as stipulated under the proviso and a further period of thirty days as envisaged under the main part of section 4 of the Act and not the ninety days as has been submitted by Mr. B. A. Farooqi, the learned counsel for the appellant.
13. After having determined the true import of section 4 of the Service Tribunals Act alongwith its proviso, we will now, proceed to consider as to whether the appeal filed by the appellant before the Service Tribunal was within the period of limitation or it was time-barred. Tb order of the appellant's retirement was passed by the authority on 27-12-1980, a certified copy of this order has been placed on the record as Annexure 'A'. The copy has a noting on it to the effect that the original be immediately sent for information to Kh. Abdul Khaliq, D. S. P. Authmaqam. The date of the noting entered by the Registrar, Police Department under No, 14841 is as 29th of December, 1980. The period allowed for filing the review petition under section 21 of the Azad Jammu and Kashmir Civil Servants Act, 1976 read with section 16 of the Azad Jammu & Kashmir Civil Servants (Efficiency and Discipline) Rules, 1977 is sixty days. So the period of six days allowed for review petition plus ninety days waiting period as stipulated under the proviso and further addition of thirty days for filing the appeal after the expiry of ninety days if put together, the total would come to 180 days. In the present case the adverse order was conveyed to the appellant at the earliest on 29th of December, 1980, so, therefore, the appeal having been filed on 27th of May, 1981 in no way, could be treated as having been time-barred. The impugned order passed by the Service Tribunal dismissing the appellant's appeal in liming as time-barred, it therefore, contrary to law.
14. For the foregoing reasons we accept the appeal and remand the appeal to be decided on merits.