' RANA BHAGWANDAS, J.--- By this common judgment we propose to dispose of above mentioned two appeals as the same arise out of a common judgment of the Federal Service Tribunal (hereinafter referred to as the Tribunal).
2. Leave to appeal in these appeals, arising out of judgment, dated 28-3-2003 of the Tribunal was granted to consider the following questions of law.
"(i) Whether in case of abatement on the insertion of section 2-A in the Service Tribunals Act, 1973 on 10-6-1997, the period of limitation to file appeal before the Service Tribunals would commence with effect from such date?
(ii) Whether the Service Tribunal has erred in holding that section 14 of Limitation Act is attracted in this case when inasmuch as it is well-settled principle of law that where the relationship between the employees and employer is regulated under the principle of `Master and Servant', the remedy is to file suit for damages only and that filing of suit for declaration and permanent injunction by respondent Muhammad Ali Gohar Zaidi in pursuing the same upto this Court was not only misconceived but also vexatious?
(iii) Whether the Service Tribunal has failed to apply the provisions of section 24-A of the General Clauses Act, 1897 and section 17 of the Civil Servants Act, 1973, while not granting full back benefits from the date of reinstatement of respondent Muhammad Ali Gohar Zaidi?
(iv) Whether the Service Tribunal has discriminated against respondent Muhammad Ali Gohar Zaidi whereby it granted back benefits to many employees on reinstatement in service in Appeal No,753(K) of 1999 decided on 24-7-2002 and Appeal No,922(K) of 1999 decided on 21-2-2003 from the dates of their reinstatement?
3. Syed Muhammad Ali Gohar Zaidi, was working as General Manager (Project and Engineering) in House Building Finance Corporation (hereinafter referred to as the Corporation) when his services were terminated vide notice-cum-termination order, dated 24-1-1989 with effect from 24-4-1989, purportedly in accordance with the terms and conditions of his service. After departmental appeal, he sought relief through the Civil Court but without any success. The litigation dragged up to this Court and came to an end through order dated 12-8-1999 passed in civil petition for leave to Appeal No,564/L of 1998 with the observation that the remedy of the appellant lay before the Tribunal. After about two months of receipt of copy of order of this Court, he filed service appeal before the Tribunal seeking reinstatement in service with full back benefits. The appeal was resisted by the Corporation on variety of grounds, including the bar of limitation in invoking the jurisdiction of the Tribunal and in application of the provisions of section 14 of the Limitation Act in relation to proceedings before the Tribunal.
4. On its part, Tribunal took the view that in terms of Regulation No,11 of the House Building Finance Corporation Service Regulations, 1959, services of the appellant could be terminated only in good faith, without any discrimination and in the interest of the Corporation. On consideration of the material on record, the Tribunal held that. In the instant case, termination of the services of the appellant was not in the interest of the Corporation but it was on account of discrimination and in violation of the principle of natural justice. Dealing with the question of limitation, the Tribunal found that with the insertion of section 2-A in the Service Tribunals Act, 1973, the competent forum to adjudicate upon cases involving terms and conditions of service was the respective Service Tribunal. It was observed that, no doubt, the appellant had knocked the doors of wrong forums, even those forums had failed to abate his case and dismissed his claim without taking into consideration the fact that after the insertion of section 2-A (ibid), they were no longer competent to deal with the question agitated by the appellant. It was only in the civil petition for leave to appeal before this Court when it was conceded that remedy of the appellant would lie before the Tribunal. In the backdrop of observation of this Court on the request of appellant's counsel for condonation of delay that the competent forum may examinethe question of condonation of the period, which had been spent in pursuing the remedy before this Court sympathetically, in view of the requirements of law, the. Tribunal exercised its discretion in favour of the appellant. The Tribunal referred to the dictum of law laid down by this Court after the insertion of section 2-A (ibid) to the effect that the situation remained fluid and uncertain for quite sometime in that even competent lawyers could not properly guide their clients as to the proper forum. Another circumstance, found favour with the Tribunal appears to be the rule of law that no person shall suffer on account of act or omission on the part of the Court as held in Abdul Wahid v. Sirajuddin 1998 SCM R 2296 and Sajawal Khan v. Wali Khan 2002 SCM R 134. Consequent upon the above findings, Tribunal accepted the appeal and set aside the termination order but while directing reinstatement of the appellant, ordered that intervening period shall be treated as leave of the kind due.
5. While Civil Petition for Leave to Appeal No,381/K of 2003 leading to Civil Appeal No,1681 of 2003 was filed by the Corporation, agitating the findings on the issue of reinstatement, Civil Petition for Leave to Appeal No,383/K of 2003 leading to Civil Appeal No,1682 of 2003 was filed by Syed Muhammad Ali Gohar Zaidi, against withholding of the back benefits by the Tribunal without assigning any reason. We would refer Syed Muhammad Ali Gohar Zaidi as appellant and the Corporation as respondent in this judgment.
6. We have heard Messrs M.M. Aqil and M.L. Shahani, learned Advocate Supreme Court for the parties and examined the record with care.
7. It is not dispute that the appellant was working as General Manager (Project and Engineering) in the respondent-Corporation and he was transferred to Lahore vide order, dated 25-4-1985 where he served till the impugned action of termination from service. Services of the appellant were terminated as no longer required on three months notice. It was the case of the Corporation that the Board of Directors had decided to abolish three posts of General Managers during the year 1987-88 and services of the appellant were dispensed with in the light of said decision of the Board, though actually termination was activated in April, 1989. It is also not disputed that in the combined seniority list of the General Managers in the Corporation name of the appellant appeared at Serial No,1 but the plea taken by the Corporation before the Tribunal was that since he belonged to Engineering Section and one post of General Manager (Engineering) was decided to be abolished, his services were done away in good faith and without any malice. It may be observed that with the decision of abolishing three posts of General Managers, threenew posts of General Managers were simultaneously created in the same meeting, in which Resolution with regard to abolition of posts was taken. No fresh Resolution was, however, passed by the Board of Directors for implementing the decision taken during the year 1987-88 for implementation in the next financial year. Be that as it may, in the absence of fresh Resolution by the Board of Directors for termination of services of the appellant at the relevant time, the Tribunal expressed the view that termination of his employment was neither transparent nor fair or in good faith. It may also be pointed out that initial offer of appointment of the appellant was not confined to the Project and Engineering Section alone and his services could be utilized in any other sector of the Corporation, had the Corporation adopted well-known principle of "first in last out". This question has, however, not been agitated before us and the scope of leave, granted to the Corporation, is confined to the question of the appeal before the Tribunal being hit by bar of limitation and applicability or otherwise of the provision of section 14 of the Limitation Act. We are, therefore, not called upon to dilate upon the findings of the Tribunal on the merits of the termination order, which has been found to be invalid and in disregard of Regulation 11 of the Regulations (ibid). Likewise we do not feel it necessary to dilate upon Question No,(ii) in the leave grant order as the relationship of "master and servant" between the parties seems to be out of context and irrelevant for decision of the present appeals.
8. Adverting to the question of limitation, suffice it to say, when the right to sue accrued to the appellant, evidently he did not have remedy of reinstatement available before the Tribunal, therefore, on his own understanding or advice, he sought his remedy before a Court of plenary jurisdiction where he was non-suited. His appeal and proceedings before the High Court remained fruitless. He, therefore, invoked the Constitutional jurisdiction of this Court when, for the first time, it was pointed out that, by virtue of insertion of section 2-A in the Service Tribunals Act, he was deemed to be a civil servant and his remedy for enforcement of his right would lie before the Tribunal, whereupon his petition was disposed of by this Court accordingly. It was only after the disposal of the petition by this Court that he was well advised to seek his remedy before the Tribunal with the observation that the Tribunal might take into consideration the factum of pendency of litigation before different Courts and treat his case sympathetically in the backdrop of question of limitation. There is no gain saying that the provision of section 2-A being entirely distinct and unique in nature there was utter uncertainty and confusion in the legal circles as well as the Courts as to its real and legal effect. For quite a long time various Tribunals and the Courts were bonafidely of the view that the provision, being substantivein nature, would be applicable prospectively and not affect the pending litigation but it was only after the judgment of this Court in Aftab Ahmed v. Karachi Electric Supply Corporation 1999 SCM R 197, when the B position was authoritatively clarified that all pending suits, appeals and petitions would stand abated and the affected persons shall have the remedy before the Service Tribunals. In terms of section 5 of the Serviceconfirm, set aside, modify or vary an order appealed against. Tribunals Act, the Tribunal has been vested with the authority to Undoubtedly, Tribunal is also competent to condone delay for sufficient cause in appropriate cases. Now the Tribunal, in the case in hand, having exercised its discretion, in view of peculiar facts and circumstances of the appeal, it is hard to point out any fault with the exercise of discretion by the Tribunal. The facts and circumstances of the appeal are such that the Tribunal was persuaded to take the view that appellant had been agitating for the enforcement of his right before different forums and no objection as to the jurisdiction was ever taken by the Corporation before any forum where the litigation went on for nearly one decade.
Furthermore, the legal position was so fluid and conflicting that neither the counsel for the parties nor the Courts were certain as to the True impact of provision of section 2-A (ibid).
9. Learned counsel for the Corporation vettemently contested the legal position and urged that the provisions of section 14 of the Limitation Act can only be invoked in suits where a person has been acting with the due diligence and in good faith and the benefit of the period spent in litigation before wrong forums in good faith can be extended. He attempted to persuade us to hold that the appellant neither acted diligently nor in good faith, therefore, the Tribunal committed an error of law by wrongly relying upon the provision of section 14 (ibid).
10. We have given our anxious thought to the submission of the learned counsel. Technically speaking, he may be correct that the provisions of section 14 (ibid) are restricted to suits, the fact remains that E the broad principles of this provision can always be extended to proceedings of civil nature before a Court or Tribunal with a view to secure the ends of justice and to suppress the mischief.
11. On merits, we are not inclined to subscribe to the view of the learned counsel that appellant did not act with due diligence or in good faith. He, being adversely affected by abrupt discontinuation of his employment in the purported exercise of power by the Corporation, was running from pillar to post for the redress of his grievance and no element of malice or negligence on his part is spelt out from the circumstances of the case. In law, we are of the view that essentially proceedings before the Tribunal, though known as an appeal, are in the nature of original proceedings, as the Tribunal is a Tribunal of fact finding as well as exclusive forum for deciding questions of law in relation to a departmental order in that evidence of the parties can always be recorded by the Tribunal like a Court of original jurisdiction. Assuming that the proceedings before the Tribunal are in the nature of appeal, broader principles of the provisions of section 14 (ibid) can always be invoked for fostering the ends of justice and preventing the mischief. These principles can always be called in aid for exercise of power under section 5 of the Limitation Act, which permits a Court and the Tribunal in the present case to condone the delay for sufficient cause. In any event, the Tribunal having condoned the delay by exercise of its discretion, this Court is always slow and reluctant to interfere with the exercise of discretion in the absence of extraordinary circumstances.
We would, therefore, repel the contention of the learned counsel for the Corporation that appeal preferred before the Tribunal should have been dismissed as barred by time.
12. For the aforesaid facts and reasons, Civil Appeal No,1681 of 2003 is dismissed with no order as to costs.
13. Adverting to the questions raised by appellant in the connected Appeal No,1682 of 2003, we find from the record that, though the Tribunal has struck down the impugned order of termination for valid and well considered reasons, it has not assigned any reason muchless a plausible reason, for withholding the back benefits for the period the appellant remained out of job for no fault on his part. Admittedly, he was deprived of his right to continue as General Manager in the Corporation from March, 1989 till his reinstatement under way back in March, 2003. It is inconceivable that he would have twelve years period of leave at his credit so as to suitably compensate him for loss.
Furthermore, mandate of section 24-A of the General Clauses Act clearly stipulates recording of reasons for every decision. Appellant has also cited cases noted in the leave granting order to demonstrate that he has been discriminated in relation to award of back benefits. Apparently, order of the Tribunal to the extent of withholding of back benefits cannot be sustained at law.
14. We would, therefore, set aside the judgment to the extent of withholding back benefits and treatment of intervening period as `leave of the kind due' by allowing Civil Appeal No,1682 of 2003 and remand the case to the Tribunal for reconsideration of the matter and assigning plausible and convincing reasons with regard to this aspect of the case
15. Consequently, Civil Appeal No,1682 of 2003 succeeds in above terms with no order as to costs.