' AJMAL MIAN, J.--Leave to appeal was granted against the judgment dated 28-3-1982 passed by the Federal Service Tribunal, Islamabad, hereinafter referred to as the Tribunal, passed in Appeal No,53(R) of 1978 to consider the question, whether the Tribunal was justified in dismissing the appellant's aforesaid appeal on the ground of limitation.
2. The facts to be noted are that the appellant had joined the defunct Police Service of Pakistan (P.S.P.) on 11-12-1956. He was retired under Martial Law Regulation 114 on 13-3-1972 but was reinstated under Martial Law Regulation 116 on 15-8-1973. He was promoted as D.I.-G. On 15-7-1974.
The appellant, while serving as the Director of Narcotics Control Board, Peshawar, in the rank of D.I.- G., was served with a show-cause notice for "having a persistent reputation for corruption" and was called upon to show cause within 7 days. The appellant submitted a detailed reply to the above show-cause notice but he was compulsorily retired by Gazette Notificaion No,5/Police/Est. Dated 30-10-1976. Thereupon on 15-11-1976 the appellant submitted a review petition to the President of Pakistan against the above compulsory retirement. It is the case of the appellant that he had not received any reply to the above review petition but his reminder dated 8-9-1977 was treated as an application under M.L.O.23 and he was directed to appear before the Review Board. On 5-2-1978 the appellant appeared before the Review Board and filed an affidavit dated 4-2-1978 averring therein that he had neither applied for the review of his case under above M.L.O. 23 nor he would like that the same be treated as such unless he was assured that in the event of his re-instatement he would not lose the benefit of pay and allowances as well as the seniority and that he reserved the right of appeal to the Service Tribunal against any adverse decision on his aforesaid review petition dated 15-11-1976 addressed to the President. It appears that the matter did not proceed before the Review Board as the same was disposed of by passing an order to the effect that "during hearing, petitioner has withdrawn his petition voluntarily". It is also the case of the appellant that he continued to send reminders to the President with reference to his aforesaid review petition dated 15-11-1976, and that he sent final reminder on 24-6-1978. It is further the case of the appellant that, since he did not get any response, he filed the aforesaid appeal before the Tribunal on 20-7- 1978. The above appeal was dismissed by the Tribunal by an order dated 20-6-1979 on the ground that the same was barred by time by one year and four months with no condonation sought.
Against the above order, the appellant had filed petition for leave which was disposed of by this .
Court by .a judgment dated 3-3-1980 and the case was remanded to the Tribunal to consider the question of limitation afresh and also the appellant's application for condonation of delay. After the above remand order, the appellant amended the memo. Of appeal with the permission of the Tribunal and included the ground that the impugned retirement order was void as the same was issued by the Establishment Secretary without the approval of the President. The Tribunal after hearing the appellant passed the impugned judgment on the ground that there was no sufficient ground to condone the delay in filing of the appeal.
3. The appellant, who is a practising Advocate, has argued the case with vehemence. His main thrust of the argument was that, since the impugned order of retirement was void, the question of limitation was not involved. To reinforce the above argument, he has cited the following :cases:--
(1) The Chairman, District Screening Committee, Lahore and another v. Sharif Ahmad Hashmi PLD 1976 SC 258;
(2) S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another 1978 SCMR 367;
(3) Yousaf Ali v. Muhammad Aslam Zia and 2 others PLD 1958 SC (Pak.) 104;
(4) Punjab Province v. The Federation of Pakistan PLD 1956 FC 72;
(5) Muhammad Swaleh and another v. Messrs United Grain and Fodder Agencies PLD 1964 SC 97;
(6) Chief Kwame Asante v. Chief Kwame Tawia PLD 1949 PC 45;
(7) Hussain Bakhsh and others v. Settlement Commissioner and another PLD 1969 Lah. 1039;
(8) Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others PLD 1973 SC 236;
(9) Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others PLD 1975 SC 331.
4. In the above first case, this Court while dealing with the question of condonation of delay under section 5 of the Limitation Act observed that no hard and fast rule on the question of sufficiency or otherwise of cause can be laid down but each case is to be examined in the light of its own facts. It was also observed that the Court of Equity refuses aid to enforce stale claims or demands and that the principle of laches applied strictly where' public servant seeks restoration of his office or other redress against a wrongful order. The above case does not support the case of the appellant, on the contrary it goes against him. The second case in fact arose out of the above first cited case of the Supreme Court inasmuch as a review petition against the judgment in above reported case PLD 1976 SC 258 was filed seeking the review of the same. This Court while dismissing the above review petition dilated upon the question, whether a void order should be struck down by the Court even if the relief is barred by limitation or the relief sought suffers from laches, and observed as follows:-- "Additionally I have to observe here that the petitioner assumed in his arguments before us that a Court always struck down a void order regardless of the consequences of its decision. The assumption is a total fallacy, because a void order is only a type of an illegal order. This is described as void because it is so illegal that it does not exist in the eye of the law, but this does not alter the fact that it was passed and by describing it as void Courts cannot alter the fact that the order was passed. And an order which has been passed can create consequences, therefore, there cannot be a hard and fast rule that void order must always be struck down. The true position has been clarified by Munir, C.J., with usual lucidity (I say so with respect) in Yousaf Ali v. Muhammad Aslam Zia (PLD 1958 SC (Pak.) 104, where Munir, observed at page 117: `And if on the basis of a void order subsequent orders have been passed either by the named authority or by other authorities, the whole series of such orders, together with the superstructure of rights and obligations built upon them, must, unless some statute or principle of law recognising as legal the changed position, of the parties is in operation, fall to the ground because such orders have as little foundation as the void order on which they are founded.'
' This passage does not mean that a void order is always to be struck down regardless of the consequences of such a decision, but that a void order must be struck down provided there is no statute or principle of law which would make it unjust or inequitable to strike down the void order.
This qualification is very important, and that is why, for example, a writ may be refused against a void order if this would enable the petitioner to circumvent the provisions of a statute of limitation."
' The above third cited case of this Court of S.Sharif Ahmad Hashmi (1978 SCMR 367), which has already been commented upon in the above second case and, therefore, need no further comments.
' As regards the above fourth cited case, it may be observed that the facts of the above case were that the Punjab Government had filed a suit in the then Federal Court of Pakistan under Section 204 of the Government of India Act, 1935, seeking declaration that it was not liable to be assessed under the Income Tax Act, 1922. The above suit was decreed by the Federal Court. While repelling the objection that the suit was time-barred, it was observed by the Federal Court that the assessm ent being void and the tax not having been paid, no question of limitation arises as the dispute has not been concluded because the Federation insists on its right to tax and the Province denies any such power in the Federation. The facts of the above case are distinguishable from the present case. In the above case there was a continuing cause of action, which is wanting in the instant case. The fifth case referred to hereinabove has also no application as the question involved in the above case was, whether any limitation period was provided for a revision under section 115, C.P.C. In the above sixth case, the Privy Council remitted the case to the West African Court of Appeal to consider the question, whether the impugned order was void on the ground that the trial Court was not validly constituted. In that context, it was observed by the Privy Council that it was never too late for the appellate Court to give effect to the above plea. The question of limitation was not considered and was not pressed into service. The only question agitated was, whether the party should be allowed to raise such an additional plea. In the instant case if the appellant would have filed his service appeal within the limitation period, he would have been entitled to raise the above additional ground but this additional ground cannot be a ground for extension of limitation period.
' Adverting to the above seventh case it may be observed that the facts were that a letters patent appeal was filed against the order of a learned Single Judge of the Lahore High Court dismissing a Constitutional petition against the order of transfer of an evacuee house under the Settlement Scheme. The Division Bench which heard the appeal held that the Deputy Settlement Commissioner who had passed the original order of transferring the entire house to the respondent acted in excess of jurisdiction. In that context the learned Judge who rendered the judgment observed that if an order is without jurisdiction and void, then it need not be formally set aside and no question would, therefore, arise of holding that the matter cannot be considered on merits on account of any bar of limitation. Though the above observation lends support to the appellant's above contention to some extent but it cannot be pressed into service while dealing with a service matter as different principle is applicable to the service matters as observed by this Court in the above first cited case that in service matters the limitation is to be applied strictly.
' The eighth above cited case has also no direct bearing on the facts of the present case as it was also a case under the Settlement Law in which this Court while construing section 5 of the Registration of Claims (Displaced Persons) Act (III of 1956) highlighted the distinction between an incorrect decision and a void decision. The last case also has no application as it also related to a settlement matter. It contains a learned discourse on the distinction between a void and voidable order and it has been observed that an order obtained by fraud is not void but only voidable, but an order which is made by a Court, Tribunal or other authority which has no jurisdiction either as regards the subject-matter, the pecuniary value or the territorial limits where the dispute arose, such an order would amount to usurpation of power unwarranted by law. Accordingly it would he a nullity. After the above appeal was reserved for judgment the appellant inter alia submitted the following citations to re-inforce his argument that he should not have been non-suited by the Tribunal on the ground of limitation:--
(i) Water and Power Development Authority v. Abdul Rashid Bhatti 1989 SCMR 467;
(ii) Federation of Pakistan v. Muhammad Azim Khan 1989 SCMR 1271;
(iii) Inspector-General of Police, Balochistan v. Jawad Haider and another 1987 SCMR 1606;
(iv) Water and Power Development Authority v. Aurangzeb 1988 SCAR 1354;
(v) Muhammad Naseem Sipra v. Secretary, Government of Punjab 1989 SCMR 1149; ' A close scrutiny of the above-referred cases indicates that none of it advances the appellant's case, on the contrary, the cases referred to at serial numbers (i) to (iv) hereinabove are in line with the consistent view of this Court that in service appeals, the Tribunal should press into service question of limitation. Leaves to appeal were granted in the aforementioned cases to consider the question, whether the Tribunal was justified in not dismissing the service appeals on the ground of limitation. The case mentioned above at serial number (v) had no relevancy with the controversy in issue. In the aforesaid case, this Court instead of dismissing a petition for leave simpliciter on the ground of limitation also dismissed the same on merits. It does not lay down as a proposition of law that a Court is bound to examine a case on merits, though the case may be patently barred by limitation under the relevant law. In any case, it is a matter of discretion for the Court concerned.
The factum that in the instant case the Tribunal has dismissed the appellant's appeal on the ground of limitation without touching upon the merits of the case, does not render the order under appeal legally infirm, as to warrant interference by this Court.
5. On the other hand, Mr. Muhammad Afzal Siddiqi, learned Deputy Attorney-General, besides relying upon the above-cited cases at S.Nos. 1 and 2 has referred to the following cases:--
(i) Muhammad Ismail Marion v. Government of Sindh and another _obi SCMR 244.
In this case the Supreme Court declined leave to appeal against an order of the Provincial Service Tribunal dismissing the appeal on the ground of limitation. While dismissing the following observation was made:-- "The Tribunal was again right in taking the view that the appeal was barred by time, as it was received in the office of the Tribunal on the 31st of October, 1978. Its despatch by the petitioner by post on an earlier date was completely irrelevant for the purpose of calculating the period of time taken by the petitioner in filing the appeal. It was in the discretion of the Tribunal to condone delay on the basis of facts presented before it. If the Tribunal was not satisfied with the ground urged in this behalf by the petitioner, we do not see how we can substitute our own satisfaction for that of the Tribunal."
(ii) Qazi Sardar Bahadar v. Secretary, Ministry of Health, Islamabad and others 1984 SCMR 177.
In this case this Court declined to grant leave against the order of the Federal Service Tribunal dismissing the petitioner's appeal as time-barred.
(iii) Reference may also be made to the observations made by Lord Radcliffe from the case of Smith v. East Elloe Rural District Council and others 1956 AC 736, which read as follows:- "As one time the argument was shaped into the form of saying that an order made in bad faith was in law a nullity and that, consequently, all references to compulsory purchase orders in paragraphs 15 and 16 must be treated as references to such orders only as had been made in good faith. But this argument is in reality a play on the meaning of the word nullity. An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders. And that brings us back to the question that determines this case: Has Parliament allowed the necessary proceedings to be taken?
' I am afraid that I have searched in vain for a principle of construction as applied to Acts of Parliament which would enable the appellant to succeed. On the other hand, it is difficult not to recall in the respondents' favour the dictum of Bacon: ' Non est interpretatio, set diviratio, quae recedit a litera."
6. As pointed out hereinabove that the cases cited by the appellant do not advance his case. It is an admitted position that no competent forum has recorded as a finding of fact that the impugned order of the compulsory retirement was void. The question, whether Mr. Vaqar Ahmed the Establishment Secretary, had issued the requisite notification without obtaining approval of the President, is a question of fact, which was to be proved in order to rebut the legal presumption that all official acts are regular. Reference may be made to the case of the Province of East Pakistan and others v. Muhammad Abdu Miah PLD 1959 SC (Pak.) 276 wherein this Court has made following observations:-- It is helpful to bear in mind in such cases that there is a presumption that official acts have been regularly performed, i.e,, with due regard to the relevant formalities and within the relevant powers.
A conclusion of excess and irregularity is therefore, not to be lightly reached. And in matters affecting the public service, results deleterious to the .Public interest can readily follow if questions of application of service rules are approached as if the duty is merely to assert rights vested in the public servant who is the complainant. The paramount purpose and principle in these matters, applicable to the complainant as to all his colleagues and to the section of the administration in which they serve, is that the integrity and efficiency of that section shall be maintained, in the interesfs of the public service and of the public generally. The due dispensation of justice in respect of claim of an individual public servant is possible only if the question of his private right is approached from the point of view of the larger public interest of which such private right forms only a small part."
' In our view, a mere assertion on the part of the appellant that the requisite approval of the President was not obtained is not sufficient to dislodge the above legal presumption of regularity. It is an admitted position that the notification dated 30-10-1976 was issued by the Establishment Secretary in which it was stated that the President had ordered the compulsory retirement of the appellant. Till today no Government functionary has doubted the correctness of the aforesaid notification. On the contrary in the various legal proceedings initiated by the appellant, the Federal Government owned the above notification.
7. Though the ground of fraud was pressed by the appellant before the Tribunal but he has not urged the same before us. However, it will suffice to observe that reliance was placed by the appellant on section 18 of the Limitation Act in support of his contention that Mr. Vaqar Ahmad, then Establishment Secretary, by issuing the notification of the appellant's compulsory retirement without the approval of the President of Pakistan, committed fraud. This contention is also directly linked with the appellant's above first submission. The legal presumption of regularity of the official act cannot be dislodged by just making above allegation without substantiating it. We may observe that Mr. Vaqar Ahmad in his reply before the Tribunal had vehemently denied the factum of having any mala fides against the appellant or having issued notification without obtaining the approval of the competent authority. Even otherwise the ground of fraud is generally available when a person by manoeuvring keeps his adversary in dark or prevents him from acquiring knowledge of an adverse action or order taken/passed against him. In the present case, it is not the case of the appellant that he had no knowledge of the adverse order (i.e, compulsory retirement), but his case is that, he was unaware of one of the grounds on which the above order can be assailed of.
8. Then it was urged by the appellant that as he had not received any reply to his representation made by him to the President on 15-11-1976, he filed the service appeal on 20-7-1978 before the Tribunal without receiving any reply and, therefore, he cannot be penalised for the reason that the authority concerned had not decided his above representation. It has been further submitted by him that the period of 30 days is to be reckoned from the date of rejection of a departmental appeal, review or representation and as in the instant case the appellant's representation was not rejected, in fact the period of limitation had not commenced. Reliance was placed by him on the case of Mehr Muhammad Nawaz etc. v. Government of the Punjab and others 1977 PLC (CST) 165 in which the Punjab Service Tribunal held that the right of appeal under proviso (a) to section 4 of the Punjab Service Tribunals Act, 1974, was available against the final order which had not till then been passed in the said case and for the reason even the filing of the appeal in October, 1976, was not hit by limitation. The above view has not been accepted by the Tribunal on the basis of its number of previous decisions in which it has been held that the maximum period for filing of an appeal before the Service Tribunal is 120 days i.e, 90, 30 days being the period mentioned in clause (a) to subsection (1) of section 4 of the Service Tribunal Act, 1973 (LXX of 1973), hereinafter referred to as the Act. It may be advantageous to reproduce section 4 of the Act which reads as follows:-- "4. Appeal to Tribunals. --(1) 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 six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal: ' Provided that:
(a) where an appeal, review or representation to a departmental authority is provided under the 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 preferred;
(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade; and
(c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the 1st July, 1969.
(2) Where the appeal is against an order or decision of a departmental authority imposing a departmental punishment or penalty on a civil servant, the appeal shall be preferred--
(a) in the case of a penalty of dismissal from service, removal from service, compulsory retirement or reduction to a lower post or time-scale, or to a lower stage in a time-scale, to a Tribunal referred to in subsection (3) of section 3; and
(b) in any other case, to a Tribunal referred to subsection (7) of that section.
Explanation.--In this section 'departmental authority' means any authority, other than a Tribunal, which is competent to make an order in respect of any of the terms and conditions of the civil servant."
9. A perusal of the above-quoted subsection (1) of section 4 indicates that a civil servant if aggrieved by any final order in respect of any terms and conditions of his service can file an appeal before the Tribunal within 30 days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, whereas the proviso
(a) to above subsection (1) puts embargo on the above right of appeal by providing that before filing any such appeal the aggrieved civil servant shall file an appeal, review or representation if so provided and shall wait for a period of 90 days from the date of which such appeal, application or representation was preferred. But it does not provide that an aggrieved civil servant should wait till the decision of the authority concerned on his departmental appeal, review or representation. The reason for not providing so seems to be to eliminate delay in the finalisation of a service matter and also to eliminate the element of uncertainty as some departmental authority may take one or two years to decide an appeal, review or representation. We are inclined to hold that the view taken by the Tribunal that a civil servant is to approach the Tribunal against a final order by which he is aggrieved within 120 days i.e, 90 days waiting period for receiving decision on appeal, review or representation plus 30 days limitation period of the appeal before the Tribunal. Any other view would be against the spirit of above-quoted section 4 of the Act. The above view is in consonance with the view taken by this Court in the case of Federation of Paksitan v. Muhammad Azim Khan and others 1989 SCMR 1271 referred to hereinabove relied upon by the appellant. In the present case, the appellant was aggrieved by the final order of his compulsory retirement dated 31-10-1976, whereas the appeal was filed by him on 20-7-1978 i.e, after the expiry of more than 20 months. It is, therefore, evident that the appeal was barred by limitation by more than 1-1/2 years. The view found favour with the Tribunal seems to be in consonance with law.
10. Then it was contended that as the Tribunal on 25-6-1980 had ordered that the parties should be ready on limitation as well as on merits, it could not have decided the appeal on the question of limitation alone without hearing on merits. In support of the above submission reliance has been placed on the case of M.Yamin Qureshi v. Islamic Republic of Pakistan and another PLD 1980 SC 22 and the case of Muhammad Ibrahim Khan v. Secretary, Ministry of Labour and others 1984 SCMR 1014. In the above first case the appellant while on leave preparatory to retirement with effect from 18-10-1969, was recalled by cancelling his leave, he was charge-sheeted and dismissed with effect from 25-5-1970 by the Tribunal constituted under MLR 58 during the Chief Martial Law Administratorship of Agha Muhammad Yahya Khan. In the case of Miss Asma Rani v. The Government of the Punjab and another PLD 1972 SC 139 this Court had held that General Agha Muhammad Yahya Khan was a usurper. The appellant after the enactment of the Service Tribunals Act, 1973 (Act XXXI of 1974) had filed an appeal against his aforesaid dismissal order before the Federal Service Tribunal, which was dismissed by the majority view on the ground of want of jurisdiction. The minority view was that the Tribunal had jurisdiction on the limited grounds spelled out by this Court in the case of Ziaur Rehman PLD 1973 SC 49 and the case of Saeed Ahmed Khan PLD 1974 SC 151, namely, the acts, orders or proceedings, which had been done, made or taken without jurisdiction or were mala fide or were in the nature of coram non judice. The matter had come before this Court in appeal filed by the appellant against the aforesaid order of the Federal Service Tribunal. This Court while allowing the appeal inter ilia observed as follows:-- "Reverting to the point, it would be seen that the view taken by this Court in Saeed Ahmad Khan's case was that the validation continued in Article 281 of the Interim Constitution did not constitute a bar in the way of the entertainment of an appeal or revision on merits, if such a recourse was permitted by law. Speaking with respect, we consider that this is, indeed, the correct position in law.
We have already explained the background which necessitated the inclusion of the validation clauses in both the interim and the permanent Constitutions of Pakistan promulgated respectively in 1972 and 1973. The paramount need at that time was to ensure continuity in the legal order, irrespective of the fact that a period of illegitimate rule had intervened, resulting in all measures and instruments promulgated by the usurper being invalid in the eye of law. The validity sought to be conferred by the law-makers had, therefore, direct relevance to their anxiety to avoid an interruption in the legal order by large scale recourse to Courts of law; and cannot, on a proper construction of the relevant clause, be extended to prevent recourse to appellate or revisional forums created by the appropriate Legislature itself, acting under an enabling provision of the Constitution. On any other interpretation, the exclusive appellate jurisdiction conferred on the Service Tribunals with regard to orders made since the 1st of July, 1969, affecting the terms and conditions of service of civil servants, would become completely nugatory. We have no doubt at all that such an interpretation is to be avoided, unless it is inevitable on the language used in the Constitution. But that is not the case here, specially when we find that clause (4) of Article 270 speaks of immunity from challenge in the Courts of law, and not from appeal or revision before a Tribunal of exclusive jurisdiction, whose establishment is permitted by the Constitution itself.
' As a result, we are of the view that both the majority and the minority views expressed by the learned Chairman and Members of the Service Tribunal as to the maintainability and the scope of the appeal filed by the appellant before the Tribunal are not sustainable on a proper interpretation of the law. The appeal being one within the ambit of section 4 of the Service Tribunals Act, 1973, was fully competent, and it was the duty of the Service Tribunal to examine on merits all questions of law and fact sought to be raised by the appellant to challenge the order of his dismissal made under Martial Law Regulation No,58, in May, 1970.
' It is, indeed, unfortunate that the grievance of the appellant had remained unredressed for a period of over nine years since the impugned order of dismissal was made against him under M.L.R.
58, but we find that in terms of clause (3) of Article 212 of the Constitution, an appeal lies to the Supreme Court only on a substantial question of law of public importance and, therefore, we would be traversing beyond the jurisdiction conferred on us by the Constitution if we were ourselves to undertake an examination and resolution of disputed questions of law and fact which ought to be decided, in the first instance, by the Service Tribunal, but could not be so decided in the present case owing to the erroneous view taken by the Tribunal on the question of its own jurisdiction. It seems to us, therefore, that there is no escape from the position that this appeal must go back to the Tribunal for a decision on merits."
' In the above second case reliance was placed on the above first case. In none of the cases it has been held that the Tribunal is obliged to examine the case on merits even when an appeal is hopelessly time-barred and, wherein it has declined an application under section 5 of the Limitation Act for condonation of delay. In the first case the question in issue was, whether the Tribunal had jurisdiction in the matter, whereas in the second case the appellant's seniority was disturbed by the Tribunal without passing a speaking order, leave was granted to consider the following questions:--
(i) whether impugned order of Tribunal disturbing seniority of petitioner to his prejudice was not a speaking order;
(ii) whether appeal of respondent before Tribunal was not time-barred; and
(iii) whether order under challenge was not beyond jurisdiction of Tribunal. In our view the above two cases have no application to the present case.
11. For the foregoing reasons, we are of the view that the above appeal has no merits, and, therefore, it is dismissed but there will be no order as to costs.