Syed MUNTAZIR HUSSAIN SHAH vs GOVERNMENT OF PAKISTAN through Secretary Health, Islamabad and 2 otherss
This appeal arises from a judgment of the Federal Service Tribunal, which dismissed the appellant's service appeal as not maintainable under Rule 6(f) of the Service Tribunals (Procedure) Rules, 1974. The Tribunal's dismissal was based on the grounds that the memorandum of appeal was not signed by the appellant personally and was filed through an attorney. Upon review, the Supreme Court held that while Rule 6 requires the memorandum to be signed or thumb-impressed by the appellant, it does not prohibit filing through an attorney. Furthermore, the Court emphasized that Rule 10(1)(ii) of the Service Tribunals (Procedure) Rules, 1974, mandates that if a memorandum is deficient, the Registrar must return it to the appellant for amendment within a specified timeframe. The Court found that the Tribunal failed to follow this mandatory procedure, instead dismissing the appeal years later, which effectively condemned the appellant unheard. Consequently, the Supreme Court set aside the impugned judgment and remanded the case to the Tribunal for a decision on the merits, establishing that procedural deficiencies must be rectified through the prescribed curative process rather than immediate dismissal.
- Does the Service Tribunals (Procedure) Rules 1974 prohibit the filing of a service appeal through an attorney?
- Is the Registrar of the Service Tribunal required to return a deficient memorandum of appeal for amendment before dismissal?
- Can a service appeal be dismissed for procedural deficiencies without first providing the appellant an opportunity to rectify them under Rule 10?
- Rule 6(f), Service Tribunals (Procedure) Rules 1974
- Rule 10, Service Tribunals (Procedure) Rules 1974
- Rule 10(1)(ii), Service Tribunals (Procedure) Rules 1974
' SARDAR MUHAMMAD RAZA KHAN, J.--- Syed Muntazir Hussain Shah has filed this appeal after leave of Court against the judgment, dated 23-9-2004 whereby his service appeal was dismissed as not maintainable under Rule 6(f) of Service Tribunals (Procedure) Rules, 1974, on two-fold ground; firstly that the memorandum of appeal was not signed by the appellant himself and secondly, that it could not have been filed through an attorney.
2. We have carefully gone through the contents of rule 6 (supra) and could not find out any provision that the filing thereof through the attorney was barred under the rule. The mandatory requirement, besides others, was that the memorandum shall be signed or thumb-impressed by the appellant. The ground regarding filing of appeal through the attorney is not at all tenable.
3. No doubt that the signatures or thumb-impression by the appellant on a memorandum of appeal before the Tribunal is mandatory but equally mandatory are the provisions of rule 10 of the Service Tribunals (Procedure) Rules, 1974 providing procedure to cover, up or to make good the deficiencies highlighted under rule 6 (supra). Rule 10(1)(ii) emphatically lays down that if a memorandum is not drawn up in accordance with the provisions of rule 6, the Registrar, after scrutiny shall return the memorandum, pointing out the deficiency, for amendment, within a time to be specified in an order to be recorded by him on the memorandum of appeal . Such time is not to be less than 14 days.
4. In the instant case, the appeal was instituted on 25-2-2002 but the Registrar never returned the memorandum of appeal for making up the deficiency, which was taken up for the first time by the Tribunal almost two and a half years after the institution. The appellant was decidedly condemned unheard by making no resort to the provisions of rule 10 (supra), thereby attracting the provisions of limitation to the detriment of the appellant.
5. Consequently, the appeal is accepted, the impugned judgment, dated 23-9-2004 is set aside and the case is remanded to the learned Federal Service Tribunal, Islamabad for hearing the appeal on merits.
Cited by 1 case
- ALI NASEEM vs FEDERATION OF PAKISTAN through Secretary, Ministry of Foreign. Affairs, Islamabad and 2 others 2015 PLJ Tr.C. (Services) 254