ZAFFAR HUSSAIN MIRZA, J.-Appellant Syed Shamshad Hussain was staving as an Assistant Post Master in the Genoral Post Office, Savings; Karachi, when disciplinary proceedings were taken against him on a show--cause notice, dated 13th January, 1973. He was found guilty of the charges levelled against him and by order, dated 16th October, 1978, the Controller of Post Offices, Karachi, dismissed him from service. Against this order the appellant preferred a departmental appeal on 14th November, 1978, before Director General, Pakistan Post Offices, Karachi, but in response thereto he was informed by the Post-Master General vide his letter, dated 28th November, 1978, that since the punishment was awarded to him by the Controller Post Offices, Karachi, the appeal would lie with the next higher authority, namely, the Post-Master General, Karachi.
2. According to the appellant the aforesaid letter was received by him on 2nd December, 1978, and in compliance with the same he resubmit--ted his appeal on 5th December, 1978, directly before the Post-Master General as desired by him. As the appellant received no communication as to the decision taken on his appeal he preferred appeal before the Federal Service Tribunal, on 3rd April, 1979, on expiry of the statutory waiting period of 90 days. Alongwith his appeal the appellant also submitted an application for condonation of delay if any out of abundant caution. By order dated 1lth October, 1980, however, the learned Service Tribunal rejected the condonation application and dismissed the appeal of the appellant on the ground that it was time-barred. In reaching their conclusion that the appeal of the appellant before the Service Tribunal was out of time, the learned Members of the Tribunal observed as under "The impugned order of dismissal of the appellant from service was passed on 16-10-1978 for which the time allowed to him in preferring departmental appeal before the appellate authority was 30 days and the last date for preferring such appeal was available to him till 15-11-1978 and he actually preferred his appeal on 14-11-1978. Since the appellant did not hear from the appellate authority, in response to his departmental representation, the appellant was under legal obligation to file appeal before this Tribunal within one month after the expiry of 90 days from 15-11-1978, i. e.
The date which was available to him in preferring his departmental appeal according to law under the provisions of the Civil Servants (Appeal) Rules, 1977. Since the time for filing an appeal before the Tribunal started running against the appellant from 15-11-1978, he was required to file the instant appeal before us under provisions of the Service Tribunals Act, 1973, before 15-3-1979 which was the last date available to him in filing the appeal but he has come before us instead on 3-4- 1979."
3. Leave was granted by this Court to consider the contention of the appellant that on the return of his appeal by the Director General, Pakistan Post Offices under clause 7 (1) (d) of the Civil Servants (Appeal) Rules, 1977, the appellant could again prefer the appeal within 30 days to the proper authority which he did on 5th December, 1978 and thus his appeal was well within time.
4. Learned counsel has reiterated the aforesaid contention in support of the appeal. Learned counsel for the respondents, on the other hand was unable to submit anything substantial in reply to the aforesaid argument and only stated that justice may be done,
5. Now rule 7 of the Civil Servants (Appeal) Rules, 1977, on which reliance has been placed inter alia reads as under :- "7(1) An appeal may be withheld by an authority not lower than the authority from whose order it is preferred if-
(a) .
(b) .
(c) .
(d) it is addressed to authority to which no appeal lies under these rules Provided that in every case in which an appeal is withheld, the appel--lant shall be informed of the fact and the reasons for it Provided further that an appeal withheld on account only of failure to comply with the provisions of sub-rule (2) or (3) of rule 5 or clause (d) may be resubmitted within one month of the date on which the appellant is informed of the withholding of the appeal, and if resubmitted in a form which complies with those provisions or is addressed to the proper appellate authority, as the case may be, shall not be withheld."
Referring to proviso (a) to section 4 (1) of the Service Tribunals Act, 1973, the learned Tribunal came to the conclusion that the maximum period for preferring an appeal before the Service Tribunal was the period of 30 days prescribed for a departmental appeal and 90 days compulsory waiting period. The aforesaid proviso reads as follows :- "Section 4(1), proviso (a).-Where an appeal, review or representation to a departmental authority is provided under the Civil Servants Ordinance, 1973, or any rule 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 depart--mental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred :"
The bare reading of the proviso makes out that 90 days waiting period is to be computed from the date on which the departmental appeal was preferred. The proviso also refers to the rules framed under the Civil Servants Act, 1973, for the purpose of determining whether an -appeal lies against an order before the departmental authorities, and therefore, obviously such appeals before the departmental authorities would be governed by the rules referred to. Rule 7 reproduced above is clearly the rule which governs the departmental appeals and it provides for built in mechanism for correcting the errors committed by aggrieved civil servants in regard to the forum of appeal. The reading of the rule clearly suggests that an appeal addressed to an authority incompetent to decide the same, is not to be dismissed on that ground ipso.Facto but the appeal is to be withheld and the appellant is to be informed accordingly. The second proviso to rule 7 then gives a further period of time (one month) from the date; such information is received by the appellant, to resubmit the appeal to the proper authority. The computation of ninety days waiting period provided for by proviso (a) to section 4 (1) of the Service Tribunals Act, in such a case, would refer to the date of resubmission of the appeal before the proper appellate authority. This is the only reasonable interpretation of the relevant provisions touching the question of limitation, otherwise the procedure provided for by rule 7 would become meaningless and in operative.
6. In view of this discussion it appears that the appeal of the appel--lant before the Service Tribunal was well within time. The original order of removal from service was passed on 16th October, 1978, and appeal was filed within 30 days by the appellant on 14th November, 1978, which was withheld by the Post-Master General and the fact was communicated to the appellant on 2nd December, 1978. From this date by virtue of rule 7 proviso (ii) the appellant was entitled to resubmit the appeal before the competent authority within one month. He resubmitted the appeal on 5th December, 1978, well within the prescribed time. Therefore, there was no delay in presenting appeal before the competent appellate authority. Unfortunately no notice was taken by the learned Service Tribunal of the provisions of rule 7.
7. For the foregoing reasons we have come to the conclusion that the appeal of the appellant having been preferred within the prescribed period of limitation was trot liable to be dismissed on the preliminary ground and was to be disposed of on merits. Accordingly we accept this appeal, set aside the impugned order of the Service Tribunal, dated Ilth October, 1980 and remand the case to the Service Tribunal for decision on merits according to law.