Pir NAZIR AHMAD SHAH Versus GOVERNMENT OF PAKISTAN
The petitioner, a former employee of the FATA Development Corporation, sought leave to appeal against the Federal Service Tribunal's dismissal of his service appeal. The petitioner had been removed from service for the alleged defalcation of cement bags. The Tribunal dismissed his appeal on two grounds: first, that the petitioner was not a civil servant at the time the impugned orders were passed, as Section 2-A of the Service Tribunals Act, 1973, which granted such status, was not retrospective; and second, that the appeal was time-barred. The Supreme Court, referencing established precedents regarding the fluid state of the law concerning the retrospective application of Section 2-A of the Service Tribunals Act, 1973, held that the Tribunal should have adopted a lenient approach toward the petitioner's application for condonation of delay. Consequently, the Court converted the petition into an appeal, set aside the Tribunal's judgment, and remanded the matter for a fresh, lenient reconsideration of the delay condonation application, with instructions to decide the appeal on its merits to avoid further remands.
- Should the Federal Service Tribunal take a lenient view when considering applications for condonation of delay regarding appeals filed after the insertion of Section 2-A into the Service Tribunals Act, 1973?
- Does the insertion of Section 2-A in the Service Tribunals Act, 1973, have retrospective effect for employees dismissed prior to its enactment?
- Section 2-A, Service Tribunals Act 1973
MUHAMMAD BASHIR JEHANGIRI, C.J.‑‑‑ The petitioner seeks leave to appeal against the order of the learned Federal Service Tribunal (The Tribunal) dated 8‑8‑1997 dismissing his service appeal.
2. Brief facts of the case are that the petitioner was employed as Storekeeper, S.W. Project Division, FATA Development Corporation. It appears that he was removed‑ from service on the charge of defalcation of 43,468 bags of cement. It was also directed that the price of 43,468 bags of cement shall also be recovered from him. The departmental appeal filed by the petitioner was dismissed. The petitioner challenged the order dated 29‑8‑1994 in departmental appeal which was dismissed on 4‑6‑1997. The petitioner assailed the order dated 4‑6‑1997 before the Tribunal. The petitioner also filed an application for condonation of delay giving reasons for approaching the learned Tribunal belatedly which was also not granted by the learned Tribunal. Similarly the learned Tribunal also held that, the petitioner was not a civil servant when the two impugned orders were passed. It was held that insertion of section 2‑A in the Service Tribunals Act, 1973, came into force on 10‑6‑1997. It was thus concluded that since the petitioner had become civil servant on insertion of section 2‑A in the Service Tribunals Act, 1973 (The Act) but was not civil servant on the dates when the two impugned orders were passed and that amendment by way of insertion of section 2‑A in the Act was not retrospective in operation. His appeal and application for condonation of delay were thus dismissed in limine.
3. Mr. Khush Dil Khan Mohmand, learned Advocate Supreme Court. in support of his petition relied on the precedent of this Court in Azimullah, Ex‑Inspector v. Chairman, Board of Trustees, Abandoned Properties Organization and others (2001 PLC (C.S.) 358). Wherein one of us (Muhammad Bashir Jehangiri, J.), as he then was observed as under:‑‑
"3. ??????? Hafiz S.A. Rehman, learned Senior Advocate Supreme Court in support of this appeal, contented that undoubtedly as a result of insertion of section 2‑A in the Act on 10‑6‑1997, the employees of Corporations/Organisations being run and controlled by the Federal Government, were declared to be civil servants for the purpose of availing remedy of appeal before the Tribunal provided under the Act but it is also an admitted position that until decision of this Court in the cases of Muhammad Afzal v. K.E.S.C. (1999 SCMR 92) and Aftab Ahmed v. K.E.S.C. (1999 SCMR 197), the view, prevailing with the Tribunal was that the provisions of section 2‑A of the Act were retrospective and as such a person who has been dismissed from service prior to insertion of section 2‑A in the Act. was not entitled to avail of the remedy of appeal provided under the Act. According to the learned counsel for the petitioner, the law in such cases was, fluid until it was pronounced by this Court as reported in January and February parts of the 1999 Supreme Court Monthly Review (SCMR), therefore, the learned Tribunal should have taken a lenient view while considering application for condonation of delay in the appeals filed before the learned Tribunal. He has substantially placed reliance on an unreported judgment of this Court in Civil Appeals Nos.882 to 890 of 1999 which arose out of Civil Petitions Nos.1401, 1458 to 1465 of 1998 reported as Tawab Khan and 8 others v. Pakistan Telecommunication Company Limited and others 2000 SCMR 179 (authored by one of us, namely, Muhammad Bashir Jehangiri, J.). In the C.P. giving rise to the consolidated judgment in Civil Appeals Nos.882 to 890 of 1999 (supra), leave to appeal was granted to consider whether the learned Federal Service Tribunal (the Tribunal), was not right in dismissing the appeal as barred by time, after insertion of section 2‑A in the Service Tribunals Act, 1973, on the basis of the authorities in the cases: (i) Muhammad Afzal v. Karachi Electric Supply Corporation and 2 others (1999 SCMR 92), (ii) Syed Aftab Ahmad and others v K.E.S.C. and others (1999 SCMR 197) and Muhammad Khalil v Chairman, C.D.A. and 2 others (C. P. No. 1700 of 1998, decided on 18‑5‑1999) and Ghulam Sarwar Bhutto v. Chief Secretary to Government of Sindh and others (Civil Petition No.604‑K of 1998. decided on 5‑4‑1999 (2000 SCMR 104)."
4. Reference may also be made to Muhammad Yaqoob v. Pakistan Petroleum Ltd. and another (2000 SCMR 830), wherein the learned four‑Member Bench of this Court observed that the learned Tribunal should have taken a lenient view while considering the application for condonation of delay in appeals filed before the learned Tribunal. Similarly unreported judgment in Civil Appeals Nos. 882 to 890 of 1999 (supra) is on all fours with the case before us.
5. We accordingly convert the titled petition into an appeal, accept it, set aside the impugned judgment and remand the case to the learned Tribunal with the direction that the application for condonation of delay be reconsidered afresh leniently in the light of the observations made above. The learned Tribunal shall simultaneously decide the appeal on merits so as to obviate the eventuality of remand of the case again.
Costs to follow the event.
S.A.K./N‑51/S ??????????????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.