MUHAMMAD SHARIF vs GOVERNMENT OF PAKISTAN through Secretary, Establishment Division, Islamabad and 3 others

MUNAWAR AHMED MIRZA.---This petition for leave to appeal is directed against judgment, dated 7th January, 1996 passed by Federal Service Tribunal, Islamabad.

2. Short facts leading to filing of present petition are that petitioner was employed as Clerk Incharge in the Audit Department of Pakistan Railways. He was asked to work against the post of Accountant (BPS-16) vide office order, dated 11th December, 1980. He admittedly performed his duty and functions in the said capacity till 10th December, 1985 when factually promoted as Accountant on regular basis.

3. It is the case of petitioner that during the period commencing from 11th December, 1980 to 10th December, 1985 despite performance of normal duties against higher post, he was not paid salary of said post (BPS-16) to which he was entitled by virtue of Fundamental Rule 17. Thus, aggrieved, the petitioner submitted his first written representation on 3rd December, 1989 and thereafter issued few reminders. His request was, however, rejected by competent Authority on 16th August, 1985.

Petitioner then sent another representation/appeal to Prime Minister on 10th September, 1995 but same was not responded. Ultimately, on 7th January, 1996, he filed an appeal before Federal Service Tribunal. After hearing the petitioner, appeal was dismissed vide judgment, dated 17th January, 1996 mainly on the ground of being barred by limitation. This judgment has been assailed through present petition. Operative portion of above judgment is reproduced below:-- "Although the clear provision of statute cannot be bye-passed but even if it is supposed that the Department considered the appeal of 1989 or that of 1994 and rejected it on merits on 16-8-1995 and time is allowed to run, therefore, even then the appellant approached this Tribunal on 7-1-1996 almost five months thereafter, and thus, the appeal is hit by section 4(1) of the Service Tribunals Act, 1973.

The learned counsel for the appellant referred to 1994 PLC (C.S.) 411, 1995 PLC (C.S.) 1103, PLD 1994 SC 348; and PLD 1987 SC 612 but these precedents are not at all relevant to the point in issue. While seeking condonation of limitation under section 5 of the Limitation Act (which is applicable to the proceedings before this Tribunal but no application for condonation has been made in this appeal). One has to give explanation for each day of delay. Weeks can be ignored, as per above precedents if sufficient cause is shown but months and years cannot be condoned simply on verbal requests. The statute of limitation and the statutory provisions of limitation have to be applied strictly otherwise the very spirit of law will be negated. Express statutory provisions of law have to be honoured to uphold the concept of supremacy of Legislature.

6. In brief the first representation/appeal to the department was barred by time to the tune of more than four years; and so the appeal based on the reply to representation will be definitely barred.

However, the appeal is also affected by limitation after the receipt of the ' final order' in August, 1995. The issue of 1980 cannot be agitated in 1996 (after sixteen years) by any stretch of the limitation period. Hence the appeal fails which is dismissed in limine."

3-A.. Petitioner referring to Fundamental Rule 17 urged that he was entitled to pay and allowances, in BPS-16 for a period of five years from 1st December, 1980 to 10th December, 1985 because he actually performed functions and duties against higher post during said period. According to him, question of limitation has been incorrectly decided by the Federal Service Tribunal, therefore, merited interference.

4. We have carefully considered all legal and factual aspects in the light of above contentions.

From bare perusal, it is quite apparent that petitioner had filed appeal before Service Tribunal on 7th March, 1996 almost ten years after the cause of action. According to petitioner's own showing, first representation was made towards 3rd December, 1989 after the lapse of almost four years. It is settled principle of law that aggrieved person must approach forum of competent jurisdiction for redress within prescribed, period of limitation and mere reminders cannot extend the same. In the instant case, even if initial unexplained delay is ignored and time for commencement of limitation is computed from 16th August, 1995 when representation was eventually rejected by competent Authority, petitioner ought to have furnished sufficient cause and plausible grounds explaining the delay subsequently occasioned in preferring appeal before Federal Service Tribunal. It is, however, undisputed that petitioner had not submitted application before the Service Tribunal seeking condemnation of delay nor placed any material on record which may effectively justify causes of delay in availing prescribed remedy. Therefore, considering all relevant aspects and glaring lacunas in the case of petitioner, we feel that conclusions drawn by the Federal Service Tribunal regarding bar of limitation in filing appeal are quite convincing and unexceptionable. It needs hardly an elucidation that law helps the diligent and normally does not support the indolent.

Additionally, the appellate forum while refusing to condone delay has judiciously exercised discretion vested in it by mentioning sound reasons and showing legal justification, therefore, impugned judgment does not warrant interference. For the above discussion, we find no substance in the petition. Leave to appeal is accordingly refused.