SARDAR SAID MUHAMMAD KHAN, C.J.---This appeal has been preferred against the judgment of the Service Tribunal dated 8-10-1996 whereby the appeal filed by the appellant, herein, was dismissed as being the-barred.
2. The brief facts of the case are that the appellant is a school teacher. There was an allegation against him that he remained absent from duty for a period of one year. Consequently, he was put under suspension and thereafter an inquiry was held against him. The Inquiry Officer submitted report to the concerned authority who awarded him the punishment of stoppage of to increments and censure. The appellant filed an appeal to the Service Tribunal which came to the conclusion that the Authorised Officer did not serve charge-sheet on the appellant and also failed to seek a written reply to the charge. The Service Tribunal opined that the Inquiry Officer could not charge- sheet the appellant and, thus, the inquiry proceedings were violative of law. However, the Service Tribunal dismissed the appeal as being the-barred by one day.
3. The arguments in the case were heard on 4-3-1997 and the judgment was reserved. However, while going through the file it transpired that penalty was imposed on the appellant on 26-4-1993 against which he had filed a departmental appeal. Instead of filing appeal to the Service Tribunal within 30 days after waiting period of 90 days, as envisaged finder section 4 of the Service Tribunals Act, the appellant waited till the decision of his departmental appeal which was dismissed on 22-2-1995. Thereafter, he filed an appeal before the Service Tribunal. In the case reported as Shabir Ahmad v. Azad Government 1997 PLC (C.S.) 478, this Court has held that an aggrieved civil servant is bound to prefer an appeal to the Service Tribunal against the original order within 120 days instead of waiting for the final decision of his departmental appeal. Thus, notice was issued to the counsel for the parties as to why the appeal before the Service Tribunal should not be held as the-barred in view of the dictum of this Court in Shabir Ahmad's case. When the arguments were being reheard, the learned counsel for the appellant sought an adjournment to file an application for the condonation of delay in view of changed circumstances resulting from the judgment in Shabir Ahmad's case. Consequently, the case was adjourned to 4-4-1997. The learned counsel for the appellant submitted an application for the condonation of delay in filing appeal on 21-3-1997, stating that the judgment in Shabir Ahmad's case was announced by this Court after the decision in the instant case by the Service Tribunal and, thus, there was no negligence on the part of appellant .In filing appeal to Service Tribunal after the final disposal of his appeal by the departmental authority; because prior to the dictum of this Court in Shabir Ahmad's case, the long standing practice was that an aggrieved civil servant used to prefer appeal to Service Tribunal either within 120 days or within thirty days of the communication of the order passed on his appeal, revision or review etc. And in both the eventualities the appeal to Service Tribunal was deemed to be within the; it was further averred in the application that the dictum of this Court in Shabir Ahmad's case would operate prospectively and not retrospectively, i.e., it would apply to the cases where appeals to the Service Tribunal are preferred after the decision of this Court and not before that. Thus, it was prayed that as the appellant was misled by the practice of the Court prevailing before the dictum in Shabir Ahmad's case, the delay in filing appeal might be condoned. The application was also supported by an affidavit. The objections were filed to the said application by the respondent wherein it was stated that in the circumstances of the case, the application for condonation of delay should be dismissed because the delay in filing appeal before the Service Tribunal was intentional. However, the averments made by the applicant with regard to previous practice were not controverted. Consequently, the case was fixed for arguments afresh on merits as well as on the question as to.~ how the dictum laid down in Shabir Ahmad's case would affect the present appeal; as to whether the appeal before the Service Tribunal in the present case would be affected by the view taken in Shabir Ahmad's case and if so," whether the appellant was entitled to the condonation of delay in the circumstances listed above. Consequently, notices were also issued to the Senior Advocates of this Court to assist the Court in the matter.
4. Mr. Farooq Hussain Kashmiri, Advocate, the learned counsel for the appellant, has argued that the Secretary Education dismissed his departmental appeal on 12-2-1995 and the order of dismissal of the appeal was communicated to the appellant on 7-3-1995. The appeal was filed on 6-4-1995, i.e. On 30th day after the communication of the relevant order. He has argued that the Service Tribunal has committed error in holding that the appeal was tiled on 31st day and was thus the-barred by one day. The learned counsel has submitted that while computing the period of limitation; the Service Tribunal committed mistake by including the day on which the order of the dismissal of the departmental appeal was communicated to the appellant; the date on which the said order was communicated to the appellant legally cannot be counted while calculating the period of limitation.
5. Raja Shiraz Kayani, Advocate-General, the learned counsel for the respondents, . Did . Not seriously controvert the arguments advanced by the learned counsel for the appellant. However, he has argued that if the appeal is accepted, an observation may be made in the judgment that fresh inquiry may be initiated against the appellant under Rules.
6. The first question which needs resolution in the instant case is as to whether the Service Tribunal was legally correct in holding that the appeal before it was the-barred by one day. By virtue of section 9 of the Azad Jammu and Kashmir Service Tribunals Act, 1975, the provisions of sections 5 and 12 of the Limitation Act, 1908 have been made applicable to the appeals before the Service Tribunal. Under subsection (2) of section 12 of the Limitation Act, the day on which the judgment complained of is; pronounced is to be excluded while computing the period of limitation. Thus, in the instant case the date of 'pronouncement' of the judgment would be deemed to be the date on which the relevant order was communicated to the appellant. The order of dismissal of the departmental appeal was communicated to the appellant on 7-3-1995 whereas the appeal to the Service Tribunal was filed on 6-4-1995, on the 30th day and, thus, was within the prescribed period of the limitation. Ever otherwise, in view of the provisions contained in section 9 of the General Clauses Act, if any period is to be computed 'from' a certain date, such date shall be excluded while calculating the specified period. Subsection (1) of section 9 of the General Clauses Act is reproduced as under:-- "9. Commencement and termination of the.---(1) In any Central Act or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of excluding the first in a series of days or any other period of the, to use the word 'from', and, for the purpose of including the last in a series of days or any other period of the, to use the word ' to'
(2)--------------------------------------------------------------------------------------- ---.--- A reference may be made to a case reported as Srinivasa Silk Mills, Seshadripuram v. State of Mysore (AIR 1962 Mysore 117), wherein it has been held that the provisions contained in section 9 of the General Clauses Act may be looked into for interpretation of an enactment etc.; it is also a valuable guide for the purpose of computing the the even in case of a notification issued by the authority in exercise of power conferred on it by law. It has been further observed that if the word from is used in a certain enactment or notification etc., the date to which the said word refers is to be excluded in view of the provisions contained in section 9 of the General Clauses Act.
7. In the light of what has been stated above, we have come to the conclusion that the appeal filed by the appellant before the Service Tribunal was filed on 30th day and is not the-barred, if the period is reckoned from the communication of the appellate order.
8. So far as the question of the applicability of the dictum of this Court in Shabir Ahmad's case to this case and the question as to whether delay should be condoned or not, are concerned, exhaustive arguments were addressed by the counsel for the parties and Raja Muhammad Hanif Khan, Advocate, Mr. Ghulam Mustafa Mughal, Advocate, Sardar Rafique Mahmood Khan, Advocate, Kh. Shahad Ahmad, Advocate, and Mr. M. Tabassum Aftab Alvi, Advocate, who appeared as amicus curiae to assist the Court in the case.
9. Mr. Farooq Hussain Kashmiri, the learned counsel for the appellant, has submitted that Shabir Ahmad's case was decided by this Court after the decision of his appeal by the Service Tribunal.
The learned counsel has argued that previous to that the practice prevailing was of this Court that an aggrieved civil servant could either wait till final disposal of his appeal, revision or review etc. And prefer an appeal to the Service Tribunal within 30 days of the communication of the order passed by the appellate authority of he could prefer appeal within 120 days after filing an appeal etc. To the appellate authority; in both the cases, appeal by an aggrieved civil servant was deemed to be within the. The learned counsel has further submitted that the ratio decedent of Shabir Ahmad's case would be applicable only to the appeals which were preferred to the Service Tribunal after the judgment of this Court and would not affect those which were preferred prior to the judgment of this Court. In alternative, the learned counsel has argued that as in the circumstances of the case, the delay in filing appeal in the instant case, cannot be regarded due to any negligence, it should be condoned in view of previous interpretation of the identical provisions by the superior Courts of Pakistan and also in view of the prevailing practice in the State. The learned counsel for the appellant has cited following authorities in support of his contentions:-- In case reported as Ch. Abdul Rashid v. Secretary, Establishment Division, Islamabad (1995 PLC (C.S.) 527) (Supreme Court of Pakistan), it was held that a civil servant having preferred departmental appeal within the was within rights to wait its disposal before approaching to Service Tribunal; long the taken by the departmental authority in deciding his appeal could not be pressed into for the purpose bf limitation.
In case reported Haji Kadir Bux v. Province of Sind (1982 SCMR 582) in paragraph 5 of the report it has been clearly held that a civil servant has to choices under section 4 of the Civil Servants Act:--
(i) Either to wait till such authority passes final order on his appeal, review or representation, howsoever, long the it may take; or
(ii) He may come up in appeal revision etc. Before the Service Tribunal after waiting period of 90 days plus 30 days.
In Muhammad Yusuf v. The Chief Settlement and Rehabilitation Commissioner Pakistan Lahore (PLD 1968 SC 101), it has been observed that binding nature of decision of the Supreme Court is prospective and not retrospective. It has been further observed that it cannot be said that the dictum of Supreme Court would nullify or alter the law from the date of commencement or nullify the decisions of the High Court which were given. Prior to the dictum of the Supreme Court.
10. Raja Shiraz Kayani, the learned Advocate-General; maintained that the appeal was the-barred in view of the dictum laid down by this Court in Shabir Ahmad's case, especially so when there was no contrary interpretation of this Court on the point. The learned counsel submitted that mere prevailing practice of this Court, in absence of any conscious interpretation of the relevant provision, would not entitle the appellant to the condonation of delay.
11. Raja Muhammad Hanif Khan, Advocate, more or less supported the arguments advanced by the learned counsel for the appellant and has submitted that in view of the practice of this Court prior to the dictum given in Shabir Ahmad's case, it is a fit case for condoning the delay. He has also referred to a case reported as Fida Muhammad Rathore v. Azad Government of the State of Jammu and Kashmir (PLD 1983 SC (AJ&K) 27), it was held that the period of limitation under section 4 of the Service Tribunals Act would start running from date of the communication of an original or appellate order, as the case may be. The learned counsel has also referred to some unreported cases of this Court to substantiate his contention that prior to the decision in Shabir Ahmad's case, appeals to the Service Tribunal used to be filed after their final disposal by the departmental authority, well beyond the period of 120 days, but neither any objection with regard to limitation was raised by the opposite parties nor the Service Tribunal or this Court suo motu took the notice of the fact that the same were the-barred.
12. Sardar Rafique Mahmood Khan, Advocate also supported the arguments advanced by the learned counsel for the appellant. He has also submitted that the operation of dictum laid down in Shabir Ahmad's case would be prospective and not retrospective. In alternative, the learned counsel maintained that even if the ratio decedent of Shabir Ahmad's case is held applicable to the instant case, the delay in the instant case must be condoned in view of previous- practice of this Court. He has referred to a case reported as Sh. Muhammad Ashraf v. Muhammad Irshad Khan (PLD 1976 Lah. 1304), the view taken by the High Court that the writ petition did not abate under the provisions of Code of Civil Procedure was subsequently reversed by the Supreme Court. But all the same it was observed that the cases in which the point was decided prior to the pronouncement of the Supreme Court cannot be re-opened, however, the delay in filing the application for setting aside the abatement order was condoned by the Supreme Court in view of this aforesaid pronouncement.
13. Mr. M. Tabassum Aftab Alvi, Advocate, more or less owned the arguments advanced by the learned counsel for the appellant, Raja Muhammad Hanif Khan and Sardar Rafique Mahmood Khan and also submitted that as the delay in filing appeal in the instant case would be deemed to have been condoned by the Service Tribunal, the discretion exercised should not ordinarily be interfered with by this Court. He has relied upon the following authorities in support of his contentions.
In case reported as Naseem Ahmad Cahudhry v. Chairman, Punjab Labour Appellate Tribunal, Lahore (1995 SCMR 1655), it was held that where a Court or Tribunal possessed the jurisdiction to condone the delay, the order of such Court or Tribunal condoning or refusing to condone delay is not ordinarily interfered with by the appellate Court.
In Masud Ahmad v. United Bank Limited (1992 SCMR 424), it has been held by this Court that where the provision of law is clear, the question of condonation does not arise. However, such question would arise where the litigant was misguided by some practice of the Court or erroneous judgment.
In case reported as Water and Power Development Authority v. Zahoor Ahmad (1994 SCMR 960), it was held that where the appeal is filed beyond the period of limitation and the delay was condoned by the Service Tribunal, the order of Service Tribunal is not ordinarily interfered with in appeal.
14. Mr. Ghulam Mustafa Mughal, the learned Advocate, in addition to supporting the arguments advanced by the learned counsel who preceded him, has strenuously argued that the decision in Shabir Ahmad's case would not be applicable to the appeals which were already sub judice before the Service Tribunal or were preferred afterwards without the knowledge of the aforesaid dictum of this Court. The learned counsel has further argued that specific observations may also be made while deciding this case so that delay in filing appeals before the judgment of this Court in Shabir Ahmad's case or without the knowledge of the same are liberally condoned by the Service Tribunal.
He has - cited following authorities in support of his contentions: In case reported as Pir Bakhsh v. The Chairman, Allotment Committee (PLD 1987 SC 145), it was observed that if the Court lays down a rule of law while interpreting it, the rule laid down is res judicata only between the parties to the proceedings. However, it was observed that a presumption of correctness attaches to such precedent and a solemn decision on a point of law given in a particular case is good evidence that law holds field and it is also applicable to other cases which were between third parties.
In Income-Tax Officer, Central Circle II, Karachi v. Cement Agencies Ltd. (PLD 1969 SC 322), it was observed that the decision of Supreme Court would not affect the cases which were previously decided and have become 'transactions past and closed'. The decisions of 'past and closed transactions' can only be set aside according to law and not on the ground that the Court subsequently took different view on a point of law.
In case reported as Sakhi Muhammad v. Capital Development Authority, Islamabad (PLD 1991 SC 777), it was held that rule of law laid down by the Supreme Court would be effective only from the date of its decision and would not affect the case decided by the High Court prior to the dictum of the Supreme Court.
In case reported as Roshan Ali v. Noor Ali (PLD 1985 SC 228), it was observed that although the case was remanded by the High Court on earlier view of the Supreme Court, yet the subsequent enunciation of law by the Supreme Court whereby the earlier view was changed, can be taken into consideration, because due to remand order the case was not a 'past and closed transaction'.
In Messrs Jamia Industries Ltd., Karachi v. Karachi Municipal Corporation (PLD 1975 Kar.. 26), it was observed that the Supreme Court judgment in case of Pakistan Tobacco Co. Is precedent for the future and it would not affect the cases which had already been finally decided on the earlier interpretation of law. Such earlier decisions would be valid irrespective of the subsequent view taken by the Supreme Court on the point.
In case reported as Muhammad Hasham Khan v. The Chairman, Baluchistan Service Tribunal (PLD 1983 SC 262), the Supreme Court condoned the delay under section 5 of the Limitation Act on the ground that the Tribunal did not take into consideration the earlier observations of the Court on the point. It was observed that failure of Tribunal to follow the observations raises a question of general importance and, thus, the Supreme Court itself condoned the delay in filing appeal and remanded the case to the Tribunal for fresh decision on merits.
15. Kh. Shahad Ahmad, Advocate, supported the arguments advanced by the learned counsel who preceded him and maintained that this is a fit case for the condonation of delay in view of the old practice of this Court.
16. We have given our due consideration to the matter. It may be again observed that the point with regard to the appeal being the-barred before the Service Tribunal in view of the dictum of this Court in Shabir Ahmad's case was suo motu raised by this Court. It is also correct that Shabir Ahmad's case was decided by this Court when the appeal in the case in hand had already been disposed of by the Tribunal. Thus, there was neither any occasion for applying for the condonation of delay to the Service Tribunal nor any such application was made before it. Consequently, the application for condonation of delay was made for the first the in this Court when this Court suo motu took the notice of the point. It is also correct that ordinarily, this Court does not interfere in the discretion exercised by a Tribunal or Court in allowing or disallowing an application for condonation of delay. But as in the instant case, the controversy with regard to the question of limitation was not in existence before the Service Tribunal in terms indicated above, it cannot be said that any discretion was exercised by it one way or the other. Therefore, in the peculiar circumstances of the case, this Court is fully competent to consider and decide the question of allowing or disallowing the application for the condonation of delay in filing appeal to the Service Tribunal.
17. As is evident from the arguments raised at the Bar and the authorities cited from Pakistan jurisdiction, the question of limitation, indicated above, was not settled, at least, in Azad Kashmir, prior to the dictum of this Court in Shabir Ahmad's case. It appears that almost all appeals which were filed after the decisions of the appellate authority beyond the period of 120 days were deemed to be within the; neither any objection was raised by the opposite party nor this Court or the Service Tribunal took suo motu notice of the fact. Thus, a long standing practice developed in the State that an aggrieved civil servant could come up in appeal within thirty days after the waiting period of 90 days or he might file an appeal within thirty days of the communication of the order passed on an appeal, revision or review. The to cases reported as Ch. Abdul Rashid v.
Secretary Establishment Division, Islamabad (1995 PLC (C.S.) 527) Haji Kadir Bux v. Province of Sind (1982 SCMR 582) from Pakistan jurisdiction, relied upon by the learned counsel for the appellant, show that the matter with regard to to options for filing an appeal to the Service Tribunal under section 4 of the Service Tribunals Act was not well 'settled even in Pakistan, Under these circumstances, we have no hesitation in holding that delay in the instant case was not due to any negligence, rather it was due to a bona fide mistake which resulted due to the judicial pronouncements and which, in turn, gave birth to a long standing practice of to options for filing appeal to the Service', Tribunal in the State. However, we do not subscribe to the view that the dictum in Shabir Ahmad's case would not apply to the appeals which were pending in the Service Tribunal at the the of judgment of this Court; no authority has been cited at the Bar to show that any contrary view was expressed on the point by this Court prior to the judgment in Shabir Ahmad's case. In other words, it was for the first the that the matter was adverted to and decided by this Court in the aforesaid case; the mere fact that previously no objection was raised by a party to the proceedings or no notice was suo motu taken by this Court with regard to the question of limitation, would not imply that any view contrary to one taken in Shabir Ahmad's case was taken by this Court. A reference may be made here to the following authorities wherein the delay was excused more or, less in the identical circumstances: In case reported as Haji Mahda Bhat v. Ahad Mir (AIR 1964 J&K42), it has been observed that advice of the counsel as a result of conflicting authorities on the question of forum of appeal is sufficient ground for the condonation of delay under section 5 of the Limitation Act.
In case reported as National Tobacco Co. (India) Ltd. v. Hardit Singh (AIR 1952 Cal. 752), it has been observed that as the appellant was misled by the Rules in computing the period of limitation, it was a sufficient cause to condone the delay under section 5 of the Limitation Act.
In the light of what has been stated above, we are of the view that as delay in filing appeal to the Service Tribunal was occasioned due to a bona fide mistake and long standing practice in the State, it is desirable to condone the delay in filing appeal to the Service Tribunal Hence, the delay is hereby condoned.
18. The learned counsel for the parties have also argued that it must be specifically observed in the instant case that the appeals filed in the Service Tribunal prior to the judgment in Shabir Ahmad's case should be held within the by condoning the delay on the same grounds as is done in the instant case. It may be stated that this case constitutes a precedent to condone the delay if the circumstances identical to one in the present case exist. However, the question of condoning the delay in filing appeal is to be decided by the Service Tribunal in each case according to its peculiar circumstances. There may be cases in which the appeal was filed to the Service Tribunal after the dictum of this Court in Shabir Ahmad's case but the parties might not have been aware of the said dictum for one reason or the other; therefore, the question of the condonation of delay is to be resolved by the Tribunal in light of the facts of each case keeping in view the general principle enunciated above.
The Service Tribunal has dismissed the appeal filed by the appellant on the ground that it was barred by one day. However, the Tribunal also decided the case on merits and it was held that the inquiry conducted against the appellant was not conducted in accordance with the rules. In so far as that the appellant was charge-sheeted by the Inquiry Officer which he was not authorised to do under law besides, the Service Tribunal observed that the statement of allegations was not supplied to the appellant. These findings of the Tribunal have not been challenged by the Government by filing petition for leave to appeal. Even the concise statement filed by the Government is silent on these points. Consequently, the finding that the inquiry conducted against the appellant was defective has become final.
The Service Tribunal dismissed the appeal on the question of limitation, which has been decided in favour of the appellant. Therefore, the impugned order passed by the departmental authority against the appellant, has to be set aside. We, therefore, accept the appeal with the result that the order passed by the departmental authority is vacated. However, since the truth or otherwise of the allegations against the appellant have not been decided on merits, the concerned authority may, if so desired hold fresh inquiry against the appellant in accordance with law.