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Civil Appeal No. 188 of 1982, decided on 5th March, 1984.

(From the order dated 28‑3‑1982 of the Federal Service Tribunal passed in Appeal No. 36(R) of 1978 (New No. 124(L)/81).

‑ Art. 212‑Limitation Act (IX of 1908), S. 5‑Service Tribunal (Procedure) Rules, 1974, r. 22‑Appeal before Service Tribunal Limitation‑Application under S. 5, Limitation Act, 1908 for condo nation of delay‑Appeal dismissed by Tribunal on ground of limitation, although appeal was heard on merits and not on question of limitation, nor had application for condo nation of delay been considered during hearing‑Petitioner filing review application under r. 22, Service Tribunals (Procedure) Rules, 1974 before Tribunal‑Dismissal of such application by Tribunal on ground of its in competency to review its own order‑Held, appellant having filed application under S. 5, Limitation Act, 1908 was entitled to a consideration of that application before bar of limitation was held against him‑Order of Tribunal dismissing appeal of appellant set aside and case remanded back to Tribunal to decide question of limitation afresh after hearing parties.

Qazi M. Anwar, Advocate Supreme Court instructed by Khan Imtiaz Muhammad Khan, Advocate‑on‑Record (absent) for Appellant.

Asif Hussain Siddiqui, Advocate Supreme Court instructed by Karam Elahi Bhatti, Advocate‑on‑Record for Respondent.

Date of hearing : 5th March, 1984.

The appellant's grievance is that his appeal before the Federal Service Tribunal was dismissed on 28‑3‑1982 on the ground of limitation, although the appeal had been heard on merits and not on the question of limitation, nor had his application for condo nation of the delay been considered during the hearing. He, thereupon, filed an application for review under rule 22 of the Service Tribunals (Procedure) Rules, 1974, in which he specifically took this grievance but the Tribunal dismissed the application, too, on 22‑6‑1982, on the ground that the said rule was not intended to enable the Tribunal to review its orders. The Tribunal, however, observed "the proper remedy for the applicant was to approach the Supreme Court by way of appeal under Article 212 of the Constitution". He accordingly appealed to this Court and leave was granted to consider whether the dismissal of the appellant's appeal before the Tribunal was not justified, the Tribunal having not examined his application under section 5 of the Limitation Act.

2. It has been submitted on behalf of the appellant that the hearing of the appeal before the Tribunal had been held on 27‑3‑1982 and had been confined to the merits of the case and not on the question of limitation and the judgment had been reserved that when the judgment was announced on 28‑3‑1982 which was conveyed to him on 2‑5‑1987. it was found that the appeal bad been dismissed not on merits but only on the question of limitation and that when this was brought to the notice of the Tribunal in the application under rule 22, the Tribunal did not examine the correctness of the assertion but expressed inability to review its earlier decision for want of an enabling provision in that regard. The factual aspect of the assertion is not controverted. Since the appellant had filed an application under section 5 of the Limitation Act, he was entitled to a consideration of that application before the bar of limitation was held against him. We, therefore, set aside the impugned order of the Tribunal dated 28‑3‑1982 and remand the matter to the Tribunal to decide the question of limitation afresh after hearing the parties.

M. Z. M. Leave granted.

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