Sheikh AFTAB AHMAD And Others vs DEPUTY COMMISSIONER, KARACHI And Another

1. MUHAMMAD HALEEM, J.--These appeals, by special leave, arise from the orders of the Sind Service Tribunals, Karachi, dated 28th of October, 1976, by which appeals Nos. 36, 37 and 60 of 1974 were dismissed.

2. The appellants in these appeals were inducted in service as temporary Surveyors. The appellants in Civil Appeal Nos. K-lb and K-17 of 1978 were discharged from service on 7th of April and 6th of November, 1971, respectively while the appellants in Civil Appeal K-16 was removed from service on 3rd of April, 1971. They filed civil suits before the 3rd and 4th Additional District Judges, Karachi, to challenge their termination of service. However, before the promulgation of the Sind Service Tribunals Act, 1973 on 6th of May, 1974, the Additional District Judges, by orders, dated 30th of April, 1974 and 20th of April, 1974, non-suited the appellants by holding that the suits of the first two appellants abated on 30th of April, 1974, and that of the third appellant on 20th of April, 1974. The first two appellants appealed to the Sind Service Tribunal on 10th of May, 1974, and the third appellant on 20th of June, 1974. But the Tribunal, by a short order, held that on the date of the promulgation of the Sind Service Tribunals Act, 1973, the suits were not pending and, therefore, their cases were not covered by section 6 of the said Act.

3. Leave to appeal was granted to consider whether this view of the Tribunal was correct in view of the decision of this Court in Sh. Masud Ahmad v. Pakistan PLD 1976 SC 195.

4. Admittedly the impugned orders were passed by the Additional District Judges, terminating the proceedings by way of abatement before the crucial date, that is 6th of May, 1974, when the provisions of sub-Article (8) of Article 212 of the Constitution were extended to the Sind Service Tribunal. Therefore, these orders, in fact, amounted to the dismissal of the suits and required correction by way of an appeal, but instead of filing the appeals in the High Court for avoiding these orders, the first two appellants preferred their appeals before the Sind Service Tribunal on 20th of May, 1974, and the third appellant on 20th June, 1974. The Sind Service Tribunal, however, held that as the suits were not pending on the crucial date, the benefit of section 6 of the Sind Service Tribunals Act could not be taken. The finding obviously is erroneous as the proceedings must be deemed to have been pending till the period of limitation had expired which, in the case of the appeals, if filed in the High Court, was 60 days under Article 156 of the Limitation Act. In Advocate-General West Pakistan v. Mr. Shabir Ahmad and others PLD 1963 SC 610 this principle was affirmed and it was held that "there is abundant authority for saying that a cause, is pending up to the time that the limitation for filing the appeal from the said cause has not expired." Similarly, in Delbert-Evans v. Davies , and Waitson 1945 (2) All. Eng. Reports 161 it was held that in the intervening time between the conviction of an accused person on indictment and his appeal to the Court, the case is sub judice. There was, therefore, violation of this principle by the Tribunal while holding that section 6 of the Act was not applicable.

5. Accordingly, we would allow the appeals with costs, set aside the impugned order, dated 28th of October, 1976, and remand their cases to the Tribunal for deciding them afresh on merits.