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Appeal No. 81(R) of 1985, decided on 6th July, 1985.

‑‑ S. 4‑Appeal before Tribunal‑Limitation‑Void order‑Limita tion cannot be circumvented on grounds that impugned order was void‑An order described as void‑may be illegal but it would not alter the fact that it was passed and consequences were created Appellant imposed minor penalty but subsequently removed from service and penalty enhanced without notice‑Plea that impugned order having been passed without notice to appellant as such period of limitation did not start running against appellant‑Plea repelled Held: Even if impugned order is held to be void it has taken effect and appellant had to leave, service whereby he was deprived of salary etc. and if not the void order yet the act of physical removal of appellant from performance of his duties gave him immediate cause of action and should have appealed to Tribunal within statutory period.

Sharif Ahmad Hashmi v. Chairman, Disirict Screening Committee 1980 SCMR 711 rel.

‑‑‑‑ S. 4‑Limitation Act (IX of 1908), S. 5‑Appeal before Tribu nal ‑Limitation‑Condonation of delay‑Prosecuting remedy before wrong forum under wrong advice of counsel‑Not a valid and sufficient ground ‑ Appellant filing civil suit in 1985 against impugned order‑Plea that having acted so under advice of counsel delay be condoned‑Plea rejected‑Held: Jurisdiction of Civil Courts was excluded on promulgation of Act in 1973 and Counsel who advised appellant to file civil suit acted with gross inexcusable negligence for which no indulgence can be given.

Mian Ijaz Bakhsh v. Shaikh Muhammad Afzal 1985 S G M R 1003 ; Abdul Ghani v. Ghulam Sarwar P L D 1977 S C 102 ; Mst. Mahmooda Begum and others v. Major Malik Muhammad Ishaq and others 1984 S C M R 890 and Bashir Ahmad v. Government of the Punjab and others 1985 S C M R 333 rel.

Nazar Muhammad and another v. Mst. Shahzada Begum and another P L D 1974 S C 22 and Kumar Rajendra Bahadur Singh v. Rai Rajeshwar Bali and others A I R 1937 P C 276 ref.

Raja Muhammad Asghar Khan for Appellant.

Date of hearing : 4th July, 1985.

‑‑The appellant, Amir Sulaiman, was charge‑sheeted on 5th September, 1982. As a result of disciplinary pro ceedings, he was awarded the penalty of censure and stoppage of incre ment. Thereafter, however, by order dated 28th November, 1983 he was removed from service by enhancing the punishment and giving him 14 days' notice. He filed a departmental appeal on 5th December, 1983 which was dismissed on 21st February, 1984. The present appeal has been filed before us on 21st March, 1985 which is time‑barred by more than one year. There is, however, an application for condonation of delay.

2. The learned counsel for the appellant contends that the order of enhancing the penalty having been passed without notice to the appellant, the same was ab initio void, and as such the period of limitation does not start running against the appellant. In this respect reliance was placed on the decisions of some domestic tribunals, but the law is now settled by the Supreme Court in the case of Sharif Ahmad Hashmi v. Chairman, District Screening Committee (1980SCMR711), wherein it was held that the limitation cannot be circumvented on the ground that the impugned order was void. The Supreme Court in this very case has observed that assumption that Courts always struck down a void order regardless of consequences or decision is totally a fallacy. An order described as void may be illegal, but it would not alter the fact that it was passed and consequences were created. In the present case also, even if the order is held to be void, it has taken effect and the appellant had to leave service whereby he was deprived of obtaining his salary and allowances. If not the void order. yet the act of his physical removal from performance of duties gave him immediate cause of action and he should have come to the Tribunal within the statutory period.

3. The learned counsel then argued that the appellant was wrongly advised by his counsel to go to the civil Court to seek redress and that he actually filed a civil suit before the Civil Judge on 15th January, 1985 but the said Judge returned the plaint on 14th February, 1985 for want of jurisdiction. It is contended that the appellant received the copy of the order of civil Court on 19th February, 1985 and filed the appeal before us on 21st March, 1985. It is argued that wrong advice of the counsel is a good ground for condoning the delay. Reliance in the first instance was placed on the case of Nazar Muhammad and another v. Mst. Shahzada Begum and another (PLD1974SC22), wherein reliance was placed on the case of Kumar Rajendra Bahadur Singh v. Rai Rajeshwar Bali and others (A I R 1937 P C 276), and it was held that a mistaken advice by counsel may be considered to be a sufficient ground for condoning the delay under section 5 of the Limita tion Act. Reliance was also made on the case of Mirza Muhammad Saeed v. Shahab‑ud‑Din and 8 others (P L D 1983 S C 385). In this case also, it was held that the Courts can show indulgence and condone delay where time has been spent by prosecuting remedy before wrong forum on account of bona fide mistake or error of counsel.

4. As regards the first case, it may be pointed out that the Privy Council's decision, on which the Supreme Court decision was based, was not approved by the Supreme Court in a recent judgment in the case of Main Ijaz Bakhsh v. Shaikh Muhammad Afzal (1985 S C M R 1003.). The Court held that plea of bona fide mistaken advice by counsel cannot be accepted as valid reason for condoning the delay. In this case, the Supreme Court also referred to its own decisions to the same effect which have been given in the case of Abdul Ghani v. Ghulam Sarwar (P L D 1977 S C 102) ; Mst. Mahmooda Begum and others v. Major Malik Muhammad Ishaq and others (1984 S C M R 890.) and Bashir Ahmad v. Government of the Punjab and others (1985 S C M R 333). In all these cases, it was held that wrong advice of counsel is not a valid reason for condoning the delay. In one of the cases, it has been held that in such cases, the remedy lay in suing counsel (who tendered advice) for damages.

Mirza Muhammad Saeed's case, referred to by the learned counsel, does not assist him. It rather supports the opposite view and was relied upon by the Supreme Court in the case of Mian Ijaz Bakhsh. The Court had observed that mistake in approaching a wrong forum due to gross negligence and carelessness of counsel is not a good reason for con doning the delay, where it is established that the error was such which a reasonable and prudent man might not have committed. In the present case, the jurisdiction of the civil Court was excluded in 1973, and counsel who advised the appellant to file civil suit acted with gross inexcusable negligence, for which no indulgence can be given.

6. Apart from what we have said above, the appellant has not been able to explain the reason for filing the appeal on 21‑3‑1985, when the plaint was returned to him on 14‑2‑1985 and copy of the order was avail able to him on 19‑2‑1985.

7. In view of what we have stated above, we hold that the appeal is hopelessly barred by time. It is dismissed as such in limine.

A.E.

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