' IRSAHD HASAN KHAN, C.J.---Through this common judgment we inteM to dispose of Civil Appeals Nos.114, 119, 120, 121, 122, 192, 224 and 225 of 2000, which have arisen, out of different judgments, dated 13-3-1999, 18-5-1999, 6-4-1999, 12-6-1999, 30-6-1999, 20-4-1999 and 22-4-1999 passed by the N.-W.F.P. Service Tribunal, Peshawar (hereinafter referred to as the Tribunal) in Appeals Nos.340 of 1998, 1278 of 1997, 624 of 1999, 854 of 1997, 327 of 1997, 165 of 1997, 406 of 1997 and 401 of 1997 respectively.
2. It seems proper to refer to facts of each case in seriatim to know briefly the controversy involved therein. In Civil Appeal No,114 of 2000, facts are that the appellant was initially inducted as Naib Qasid on 16-3-1972 in the office of Tehsildar, Nowshera. He was involved in murder case and was dismissed from service vide order, dated 10-9-1996. He was acquitted of the charges by the learned Sessions Judge, Nowshera vide judgment dated 16-2-1998. He filed representation for his reinstatement into service with all back benefits, which was rejected by the competent authority on 27-2-1998 and his appeal before the Tribunal was also dismissed by the impugned order, dated 13- 3-1999.
' In Civil Appeal No,119 of 2000, the facts are that the appellant was appointed as CT Teacher in BPS- 9 and was posted at Naurangi Swabi against a leave vacancy vide order dated 6-2-1996. He was later on adjusted against a vacant post of SET vide order, dated 25-7-1996. His services were dispensed with by respondent No,3 vide order, dated 13-2-1997. He after exhausting the departmental remedy approached the Tribunal through Appeal No,1278 of 1997, which was dismissed vide judgment dated 18-5-1999.
' Facts in Civil Appeal No,120 of 2000 are that the appellant was appointed as Auditor in BPS-11 on 7- 3-1985 in the Local Fund Audit Department, respondent No,2 herein. He challenged the seniority list dated 14-1-1995 before the Tribunal with the request that he may be placed at Serial No,33 and respondent No,3 at Serial No,34. The Tribunal dismissed his appeal by holding that: "as both the appellant as well as respondent No,3 reported their arrival to the Department on the same date and Azmatullah had a better position in merit, therefore, he stands senior to the appellant".
' In Civil Appeal No,121 of 2000, the appellant joined Information Department, N.-W.F.P. As Chowkidar.
He served for about 15 years. He was dismissed from service vide order, dated 15-2-1997, effective from 12-2-1997 allegedly, without adopting proper procedure of inquiry in the matter. After exhausting the departmental remedy he approached the Tribunal through Appeal No, 854 of 1997, which was dismissed on the ground that that all the codal formalities had been observed in the case of appellant and that his previous record showed that he was terminated from service in the year 1994 due to negligence and wilful absence from duty.
' Facts in Civil Appeal No,122 of 2000 are that the appellant joined Police Department as A.S.-I. On 15-3-1974. His name was brought on the Promotion List "F" with effect from 9-10-1988 and was promoted as Officiating Inspector on 17-9-1989. Thereafter, in the seniority list of Sub-Inspectors and Inspectors issued by the Inspector-General of Police, N.-W.F.P. On 14-5-1996 he was shown at Serial No,92 while the name of respondent No,6 was shown at Serial No,15. His representation was rejected on 11-3-1997. He moved the Tribunal by Appeal No,327 of 1997 which was dismissed vide the impugned judgment, dated 30-6-1999.
' In Civil Appeal No,192 of 2000 the facts are that the appellant was appointed as Beldar in Irrigation Department with effect from 1-5-1964. He was informed vide letter dated 30-6-1994 that he, after attaining the age of superannuation, stood retired from service w.e.f, 30-6-1994. He filed departmental appeal on 4-8-1994 alleging that he will attain the age of superannuation after 10 years. Later on, he moved few more applications and after having been directed from the Civil Court, a wrong forum, to approach the proper forum, he preferred Appeal No,108 of 1996 before the Tribunal which was disposed of on 17-11-1996 whereby a direction to the Department was issued to decide his appeal on merits. Receiving no reply from the respondent-department the appellant approached respondent No,1 (the Executive Engineer) and obtained a copy of departmental order, dated 13-2-1997 passed in departmental appeal filed by him. Against the said order, he again approached the Tribunal through Appeal No,165 of 1997 which was dismissed on 20-4-1999 holding that the appellant had not challenged his date of birth within two years of his induction in service, which is a legal requirement.
' In Civil Appeals Nos.224-225 of 2000, which have arisen out of a consolidated judgment dated 22- 4-1999 passed in Appeals Nos.406 and 401 of 1997, the facts are that appellants were in the employment of Forest Department as Forest Guard and Forester Incharge respectively. They were charged with inefficiency, misconduct and corruption on the ground that 1090 trees were cut illegally in Maidan Forest Compartments Nos.3, 4 and 5 while they were posted there. They were given show-cause notices and Inquiry was conducted in the matter wherein they were held responsible for negligence and active connivance in cutting the trees illegally. Sher Muhammad, appellant in C.A. No,224 of 2000 was removed from service vide Order No,39 dated 21-12-1996 while the appellant in C.A. No,225 of 2000 was reverted to lower rank of Forest Guard vide above order.
After rejection of their respective departmental appeals, they approached the Tribunal through Appeals Nos.406 and 401 of 1997, which were dismissed vide impugned judgment dated 22-4-1999.
3. Leave to appeal was first granted by this Court in Civil Appeal No,1187 of 1999 on 11-8-1999 and on the basis of this order, leave to appeal was also granted in connected appeals. It would be advantageous to reproduce the relevant portion, of the leave granting order, dated 11-8-1999, which reads thus:-- "5. Before proceeding further, it would be appropriate to reproduce hereunder the provisions of section 5(1) alongwith the first proviso of the N.-W.F.P. Service Tribunals Act (I of 1974):-- "5 Constitution of Benches.---(1) There may be constituted one or more Benches each consisting of--
(a) the Chairman alone; or
(b) the Chairman and one or more members; or
(c) one or more members, to be nominated by the Chairman for the purpose of admitting appeals or hearing or dismissing appeals in limine on ground to be recorded in writing after having heard the applicant or his counsel: ' Provided that, notwithstanding anything to the contrary contained in this Act, the Bench consisting of the Chairman and one or more members may finally hear and dispose of appeal on merits."
6. After hearing the learned counsel for the parties and perusal of the rule 5(1) ante, we are inclined to gram leave to appeal to consider the following questions of law of public importance:--
(i) Whether the appeal of respondent No,4 before the learned Tribunal was not maintainable in view of the pendency of the departmental appeal before the departmental authority wherein statutory period of 90 days had not elapsed?
(ii) Whether the learned Chairman could not finally, hear and dispose of appeal on merits while sitting alone as it was violative of the first proviso to section 5(1) of the N.-W.F.P. Service Tribunals Act (I of 1974)?"
4. The basic question involved herein revolves around the interpretation of section 5 of the Act, which reads thus:- "5. Constitution of Benches.---There may be constituted one or more Benches, each consisting of-- -
(a) the Chairman alone; or
(b) the Chairman and one or more members; or
(c) one or more members; ' to be nominated by the Chairman for the purpose of admitting appeals for hearing or dismissing appeals in limine on the grounds to be recorded in writing after having heard the applicant or his counsel: ' Provided that, notwithstanding anything to the contrary contained in this Act, the Bench consisting of the Chairman and one or more members or two or more members, may finally hear and dispose of appeal on merits: ' Provided further that no orders shall be made by the Bench under this subsection before giving the appellant or, as the case may be, the parties and their counsel an opportunity of being heard.
(2) In case a Bench consisting of more than one member is unable to arrive at a unanimous decision, its decision shall be expressed in terms of the view of the majority: ' Provided that where no majority view can be formed, the appeal shall be referred to another member, to be nominated by the Chairman, and the decision of the Bench shall be expressed in terms of the view of the majority.
(3) The Chairman may, at any stage, transfer cases from one Bench to another Bench or to the Tribunal.
(4) Any decision made by the Bench shall be deemed to be the decision of the Tribunal."
5. It is well-settled principle of interpretation of statutes that it is to be read as a whole and not in bits and pieces. Generally three functions are ascribed to a proviso:--
(1) To exempt something from the enacting clause;
(2) to qualify or restrain its generality;
(3) and to exclude some possible misinterpretation of it as extending to cases not intended by the Legislature.
' In Special Reference No,1 of 1957 by the President of Pakistan under Article 162 of the Constitution of the Islamic Republic of Pakistan, 1956 (PLD 1957 SC (Pak.) 219) this Court dilated upon the functions of a proviso, as succinctly stated by Crawford at pages 128-129 of the 1940 Edition of "Statutory Construction" in the following terms:-- ' "While there is considerable similarity between an exception and a proviso---each restrains the enacting clause and operates to except something which would otherwise fall within the general terms of the Statute, --there is a technical distinction between them, although even that is frequently ignored and the two terms used synonymously. The exception, however, operates to affirm the operation of the Statute to all cases not exception and excludes all other exception: that is, it exempts something which would otherwise fall within the general words of the Statute. A proviso, on the, other hand, is a clause added to an enactment for the purpose of acting as a restraint upon, or as the qualification of the generality of the language which it follows. Sometimes, however, as a precautionary measure, it is used to explain the general words of the Act and to exclude some ground of misinterpretation which would extend it to cases not intended to be brought within its operation or purview."
' "In order to decide whether a provision is or is not in the nature of a proviso or an exception, what has to be seen is the scope of the enactment, the object it was intended to achieve, the scheme of the enactment and the language used in, and the reasons for enacting the exceptional or special provision."
' In Sh. Liaquat Hussain and others v. Federation of Pakistan through Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others (PLD 1999 SC 504) this Court while construing the scope of a proviso observed that a proviso or an exception to the main enacting part is to be construed strictly. Reference may also be made to the case of Mst. Nawab Bibi and 3 others v. Ch. Allah Ditta and others (1998 SCM R 2381) wherein, while explaining the proper function of a proviso it was observed that while section of an Act dealt with particular field proviso would except or take or carry out from the field specific portion, therefore, before proviso could have any application, section itself must apply. In Bindra's "Interpretation of Statutes", 7th Edition, pages 74, 75 and 77, it was stated that a proviso generally modifies the general principles contained in a general rule.
6. It is, therefore, the duty of the Court to reconcile the enacting clause and the proviso and to avoid repugnancy between the two, proviso must be considered with relation to the principal clause to which it is attached. Ordinarily, a proviso is governed by the operative portion of the section.
7. Let us now examine the scope of section 5 of the Act in the light of the principles of interpretation of statutes discussed above. A bare perusal of section 5 of the N.-W.F.P. Service Tribunals Act, 1974 (Act No,I of 1974) (hereinafter referred to as the Act) shows that the Chairman of the Tribunal may constitute one or more Benches of following three kinds: first, the Chairman alone: or secondly, the Chairman and one or more members, or thirdly, one or more members, to be nominated by the Chairman. The language expressed in the non obstante clause to subsection (1) of section 5 of the Act is plain and unambiguous. There is no repugnancy, overlapping or contradiction between principal clause i.e, subsection (1) and the first proviso thereto, in that, the proviso itself states that "notwithstanding anything to the contrary contained in this Act, the Bench consisting of the Chairman and one or more members or two or more members, may finally hear and dispose of appeal on merits". Put it differently, the appeals can be heard at limine stage by the Chairman alone, or the Chairman and one or more members or one or more members and while hearing such appeals the same may be dismissed in limine for reasons to be recorded. In case, the appeals are admitted to regular hearing the same cannot be finally disposed of on merits by the Chairman alone. Thus, disposal of appeals by the Chairman alone vide the impugned judgments was not warranted under the Act. If intention of the Legislature was to confer jurisdiction on the Chairman to dispose of the appeals on merits singly then the language used in section 5 of the Act coupled with the proviso to subsection (1) thereto would have been different as employed in section 3-A of Punjab Service Tribunals Act, 1974 and section 3-A of Service Tribunals Act, 1973, relevant portion of which, for facility of reference, is reproduced respectively, as under:- "3-A. Constitution of Benches.---(1) Notwithstanding anything contained in section 3, the Chairman may constitute a Bench consisting of himself or one member only or two members without the Chairman or the Chairman and a member and when so constituted a Bench shall be deemed to be a Tribunal.
(2)
(3).
"3-A. Benches of the Tribunal.---(1) The powers and functions of a Tribunal may be exercised or performed by Benches consisting of not less than two members of the Tribunal, including the Chairman, constituted by the Ch.,,rmaii.
(2) ....................................
(a).
(b).
(c).
' Section 5 in its present form does not confer any power on the Chairman to dispose of the appeals admitted to regular hearing singly unless the same is suitably amended.
8. There is, however, no bar on the Chairman or any of the Benches contemplated under section 5 of the Act to admit the appeals to regular hearing or to dismiss the same in limine for reasons to record in writing. Thus visualized, the impugned orders of the Chairman are coram non judice and being of no legal effect are hereby quashed.
9. Resultantly; we allow these appeals by setting aside the impugned judgements and remand the cases to the Tribunal for decision afresh on merits by the appropriate Bench to be nominated by the Chairman in the light of the observations made in the preceding paragraphs.
10. We may, however, observe that the orders already passed by the Chairman alone stand on a different footing and are hit by the doctrine of past and closed transaction, No order as to costs.