Find a Lawyer

Civil Petition No. 165‑R of 1980, decided on 24th November, 1980.

(On appeal from the judgment and order of the Service Tribunal, Islamabad, dated 20‑7‑1980 passed in Appeal No. 98 (R)/78).

---S. 4 read with Constitution of Pakistan (1973), Art. 212 --Compulsory' retirement from service‑Appeal‑Limitation‑Service Tribunal setting aside appellate order on ground that civil servant was not given personal hearing‑Appellate authority, in view of Tribunal's order, granting opportunity of personal hearing to civil servant but latter ill‑advisedly not availing such opportunity and his appeal consequently finally rejected‑Civil servant, instead of filing formal appeal before Tribunal, making numerous representations to various Authorities‑Appeal filed by civil servant two years after final order of Appellate Authority dismissed by Tribunal as time‑barred‑Held, Service Tribunal fully justified in treating appeal as hopelessly barred by time and no question arose to require examination by Supreme Court in terms of Art. 212 of Constitution.

Petitioner in person.

Nemo for Respondent.

Date of hearing : 24th November, 1980.

‑This petition seeks leave to appeal against the judgment of the Service Tribunal at Islamabad dated the 20th of July, 1980, whereby an appeal filed by the petitioner Syed Tajammul Mahmud against the order of his compulsory retirement, was dismissed as being hopelessly barred by time.

The relevant facts are that on the basis of a regular inquiry held against the petitioner, when he was serving as an Assistant Director. National Savings under the Ministry of Finance, he was compulsorily retired from service with effect from the 30th of September, 1971. His appeal was rejected by the Secretary, Ministry of Finance in 1972, which order was, however, set aside in appeal by the Service Tribunal on the 5th of December, 1975, on the ground that the appellate authority had not afforded the petitioner an opportunity of personal nearing at the appellate stage.

The petitioner thereupon reported for duty on the 2nd of February, 1976, but no orders for his posting were trade, in spite of strenuous efforts by the petitioner for getting, the order of the Service Tribunal implemented: On the 5th of July, 1976, intimation was received by the petitioner to the effect that the Finance Secretary had been pleased to grant him an opportunity to be heard in person on the 16th of July, 1976. The petitioner protested on the ground that as the order of his compulsory retirement had been set aside by the Service Tribunal, and his appeal was no longer pending before the Finance Secretary, there was no question of his being afforded an opportunity of being heard for the disposal of his appeal filed in 1972. The petitioner states that he never appeared before the Finance Secretary for a formal hearing, although he had a private inter view with this officer. Nevertheless on the 26th of August, 1976, the peti tioner received a communication from the Ministry of Finance informing him that his appeal dated the 2nd of February, 1976, addressed to the Finance Secretary had been considered carefully by the competent authority and had been rejected. By a subsequent letter dated the 2nd of April, 1976, the petitioner was informed that the date of his appeal mentioned in the earlier communication may be read as 2nd February, 1972, instead of 2nd February, 1976.

Instead of filing a fresh appeal against the latest order of the Finance Secretary, Government of Pakistan dated the 26th of August, 1976, the petitioner started submitting representations, to various authorities, includ ing the President of Pakistan, the Supreme Court of Pakistan and the Service Tribunal. He spent nearly two years in this process, and then filed a formal appeal before the Service Tribunal on 21‑12‑1978. This appeal has been dismissed by the Service Tribunal on the ground that after the dismissal of his appeal by the appellate authority, namely, the Finance Secretary by his order dated the 26th of August, 1976, the petitioner had no right under the relevant service rules to file a second appeal to the President or C. M. L. A. or to any other authority, and the time taken by him in pursuing these representations only amounted to wasting about two years, and did not constitute sufficient cause for condoning delay. The Tribunal repelled the contention of the petitioner that the Finance secretary's order dated the 26th of August 1976, was ab initio void, and accordingly not governed by the law of limitation.

The main contention put forward by the petitioner, who has argued the matter in person, is that after the Service Tribunal had accepted his appeal on the 5th of December 1975, and vacated the order of compulsory retirement, there could be no question of the Finance Secretary hearing his earlier appeal once again and, therefore, the Finance Secretary acted entirely without jurisdiction when he proceeded to decide his appeal once again after notifying him of the date for personal hearing. The petitioner submits that the order being void ab initio, and there being no appeal pending before the Finance Secretary after the earlier order of the Service Tribunal dated the 5th of December, 1975, the impugned order made by the Finance Secretary on the 26th of August, 1976, was a void order, which the petitioner could ignore, and was under no obligation to challenge in appeal within the period of 30 days provided by section 4 of the Service Tribunals Act, 1973. In support of this submission, the petitioner has referred us to some decided cases of this Court, as well as of the High Courts in order to show that the Finance Secretary's order was a void order.

There is no merit in these submissions, and the whole argument put forward by the petitioner is entirely misconceived. A perusal of the order made by the Service Tribunal on 5‑12‑1975, in the first round of litigation, clearly shows that the Tribunal had set aside the appellate, order on the ground that the appellate authority had not given a personal hearing to the petitioner. There was no finding by the Tribunal that the original order of compulsory retirement was illegal in any manner. Such being the case, the appellate authority acted properly in treating the, petitioner's appeal of the 2nd of February, 1972, as being still pending, and directing that the petitioner shall be given a personal hearing before the appeal is disposed of again. The petitioner was ill‑advised in refusing to avail of this opportunity, which had been granted to him in view of the clear finding recorded in this behalf by the Service Tribunal. The petitioner was again ill‑advised in submitting 32 or 35 representations to various authorities, while the proper course for him to adopt was to file a formal appeal before the Service Tribunal within the time allowed by law. He failed to do so for a period of nearly two years. The Service Tribunal was fully justified in treating the appeal thus filed by the petitioner as being hopelessly barred by time.

The submissions made by the petitioner as to the orders of the Finance Secretary dated the 26th of August, 1976, bang void ab initio proceeded on complete misunderstanding of the law in this behalf. The Finance Secretary was the appellate authority in the case of the petitioner, and his earlier order rejecting the petitioner's appeal had been found to be defective by the Service Tribunal for the reason that he had not afforded the petitioner an opportunity of personal hearing. There was no question here of lack of jurisdiction on the part of the Finance Secretary. The previous order of the Finance Secretary having been set aside by the Tribunal owing to the defect noticed by it the appeal submitted by the petitioner remained pending for proper disposal by the appellate authority. The Finance Secretary, therefore, acted properly in giving the petitioner an opportunity of personal hearing, which unfortunately the petitioner refused to avail of. In the circumstances, the petitioner has only to thank himself for the ill‑advised course of action, which he adopted after obtaining a favourable order from the Service Tribunal in the year 1975.

For these reasons, there is no question of law arising in this case such as would require examination by this Court in terms of Article 212 of the Constitution the petition, therefore fails and is hereby dismissed.

Petition dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.