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1995 P L C (C.S.) 1191

 

[Supreme Court of Pakistan]

 

Present: Saleem Akhtar, Mamoon Kazi and Muhammad Bashir Khan Jehangiri, JJ

 

ABDUL REHMAN

 

versus

 

INSPECTOR‑GENERAL OF POLICE, PUNJAB, LAHORE and 2 others

 

Civil Appeal No. 94 of 1993, decided on 8th June, 1995.

 

(On appeal from the order of the Punjab Service Tribunal dated 12‑11‑1991 passed in Appeal No. 487 of 1988).

 

 

Statutory Construction by Crawford and Maxwell On Interpretation of Statutes, 12th Edn., p. 251 ref.

 

Syed H.M. Naqvi, Advocate Supreme Court, S. Abul Aasim Jaffri Advocate‑on‑Record for Appellant.

 

M. Yawar Ali Khan, Addl. A.‑G., Rao Muhammad Yousuf Khan,

 

Advocate‑on‑Record for Respondents.

 

Date of hearing: 5th June, 1995.

 

JUDGMENT

 

SALEEM AKHTAR, J.‑The appellant with the leave of this Court has challenged the order of the Punjab Service Tribunal, whereby the appeal filed by him was dismissed as barred by time. Leave was granted to consider the question whether a single member of the Service Tribunal could dismiss the appeal as the same could only be dealt with under the statute by a Bench of at least two Members. The other question was whether the period of limitation should have been computed from the date of the revisional order or the appellate order.

 

2. The appellant was employed as Head ‘Constable and was charge?-sheeted for misconduct as due to his negligence an under trial prisoner had escaped from the custody. The appellant denied the allegation in reply to the show‑cause notice but by order of Superintendent of Police, Multan dated 28‑2‑1981 he was dismissed from service. Against this order the appellant filed departmental appeal before D.I.-G. Multan which was dismissed by order dated 3‑6‑1981. The appellant filed Revision petition against the said order before inspector‑General of police which was also dismissed on 19‑7‑1988. The appellant then filed appeal before the Punjab Service Tribunal on 21‑7‑1988. The Chairman Tribunal who passed the order held that appeal should ‑have been filed soon after rejection of the departmental appeal by D.I.G. Multan on 3‑6‑1981 and as the same had been filed on 21‑7‑1988 it was barred by time.

 

3. The learned counsel for the appellant contended that the order was not passed by any Member but this contention is misconceived as on inspection of the original record of the Tribunal we have noted that the impugned order was signed by the Chairman.

 

4. The learned counsel then contended that the Chairman alone or one member could not have passed the order of dismissal. Such order can be passed only by a Bench consisting of two Members. The learned counsel referred to sections 3 and 3‑A of the Punjab Service Tribunals Act, 1974 hereinafter referred as the Act and contended that the Chairman alone is not competent to pass the order. These provisions are reproduced as follows;

 

3.???????? Tribunals.‑‑‑(1) The Governor may by notification in the official Gazette, establish one or more Service Tribunals, and where there are established more than one Tribunal the Governor shall specify in the notification the class or classes of civil servants in respect of whom all the territorial limits within which or the class or classes of cases in respect of which each such Tribunal shall exercise jurisdiction under this Act.

 

(2) A Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants including disciplinary matters.

 

(3) A Tribunal shall consist of‑‑

 

(a) A chairman being a person who has been or is qualified to be Judge of a High Court: and

 

(b) Two members each of whom is a person who possesses such qualifications as may be prescribed by rules.

 

(4) The Chairman and members of a Tribunal shall be appointed by the Governor on such terms and conditions as he may determine.

 

(5) The Chairman or a member of a Tribunal may resign his office by writing under his hand addressed to the Governor.

 

(6) The Chairman or a member of a Tribunal shall not hold any other office of profit in the service of Pakistan if his remuneration is hereby increased.

 

(7) Notwithstanding anything contained in subsection(3) subsection (4), subsection (5) or subsection (6), a Tribunal established to exercise jurisdiction in respect of a specified class or classes of cases may consist of one or more persons in the service of Pakistan to be appointed by the Governor.

 

3‑A. Constitution of Benches: ‑‑(1) Notwithstanding anything contained in section 3, the Chairman may constitute a Bench consisting of himself or one Member only or two Members without the Chairman or the Chairman and a Member and when so constituted a Bench shall be deemed to be a Tribunal.

 

(2) If a Bench is unable to arrive at a unanimous decision in an appeal the matter shall be placed before the full Tribunal and the decision of the Tribunal shall be expressed in terms of the opinion of the majority:

 

Provided that if the Chairman or the Member who was not already on the Bench cannot be associated or is unable for any reason to take part in the hearing of the appeal the decision of the Tribunal shall be expressed in terms of the opinion of the senior member of the Bench.

 

(3) The Chairman may, ‘at any stage of hearing of an appeal withdraw it from the Tribunal and entrust it to a Bench or may withdraw any appeal pending before a Bench and make it over to another Bench or to the Tribunal.”

 

5. A perusal of these sections will show that a Tribunal is to be constituted by the Governor which may be more than one in a Province. The Tribunal shall consist of (1) of Chairman and (2) two Members. The qualifications for a Chairman and the Member are mentioned in section 3 and need not be repeated here. In this regard reference can be made to section 3‑A which was inserted by the Punjab Service Tribunals (Amendment) Ordinance II of 1980 which opens with a non‑obstante clause superseding the effect of the provisions of section 3. It empowers the Chairman to constitute a Bench in the following manner consisting of:

 

(1) Chairman himself, or

 

(2) One member only, or

 

(3) Two members without the Chairman, or

 

(4) The Chairman and a member.

 

It further provides that when so constituted a Bench shall be deemed to be a Tribunal. Therefore, although the Tribunal has been constituted under section 3 which consists of a Chairman and two members yet by virtue of section 3‑A each Bench as constituted in the aforestated manner shall also be deemed to be a Tribunal. At this juncture the definition of Tribunal as given in section 2(g) may also be referred as under:‑

 

`Tribunal’ means a Service Tribunal established by this Act or a Bench thereof.”

 

Thus, even a Bench of the Tribunal as contemplated by section 3-A should be deemed to be a Tribunal and unless otherwise provided would be empowered to exercise all such powers which are exercisable by the Tribunal itself.

 

5‑A. The learned counsel for the appellant contended that section 3‑A (1) should be read to mean that there should be two members to form a Bench and the words a Bench consisting himself or one member only should mean a Chairman and a Member only. If this would have been the intention of the legislature then in the same provision it would not have been provided that a Bench may also consist of Chairman and a Member. If the meaning as interpreted by the learned counsel for the appellant is accepted then the words “or the Chairman and a Member would be redundant and it is well‑settled that redundancy cannot be attributed to the legislature. Considering the definition of the Tribunal and the provisions of section 3‑A. (1) it is clear that the Chairman alone or one Member only can constitute a Bench of the Tribunal and exercise power as provided under the law. It does not prohibit constitution of a larger Bench of two Members or Chairman and one member. A Bench constituted under section 3‑A consisting of the Chairman alone or one member only shall also be treated as a Tribunal competent to decide the case. Reference can be made to section 4 subsection (2) according to which the penalty of dismissal from service, removal from service, compulsory retirement or reduction to lower post or time scale or to lower stage in a time scale can be heard by a Tribunal referred to in subsection (3) of section 3 and in any other case to a Tribunal referred to in subsection (7) of section 3. This provision classifies the nature of cases which can be heard by the Tribunal. Section 3 subsection (3) and subsection (7) contemplate constitution of Tribunals of different nature and therefore, the classification of cases for hearing by each Tribunal has been mentioned in section 4(2) of the Act. But it does not in any manner derogate with the provision of section 3‑A and the definition of the word Tribunal as given in section 2(g). The power to constitute Benches has been given to the Chairman and each Bench so constituted functions as a Tribunal. This has been done only to facilitate the hearing‑of cases according to its nature and expedite the disposal of cases. We have examined similar provision in the North‑West Frontier Province Service Tribunals Act, 1974 where Benches can be constituted consisting of (1) the Chairman alone, (2) the Chairman and one or more member or (3) one or more members to be nominated by the Chairman. Section 5 of this Act is similar but more comprehensive in nature than section 3 and section 3‑A of the Punjab Service Tribunals Act 1974.

 

6. The learned counsel for the appellant contended that the appeal filed before the Tribunal was not barred by time and although this contention was raised, the learned Chairman did not even refer to it in the order. The appellant was dismissed by order of the Superintendent of Police dated 3‑2‑1981 against which he filed an appeal before the Deputy Inspector?-General Police on 5‑4‑1981. This appeal was dismissed by order dated 3‑6‑1981 which was communicated by letter dated 9‑7‑1981. Against this order the appellant filed revision application before the Inspector‑General Police as provided under the Police Rules, which was dismissed by order dated 19‑7‑1988. The appellant then filed appeal before the Tribunal on 21‑7‑1988 which was dismissed by the impugned order. The learned AA.‑G. referring to section 4 of the Punjab (Service) Tribunals Act, 1974 contended that under Proviso (a) to subsection (1) of section 4 the appellant ought to have filed appeal before the Tribunal immediately after his appeal had been dismissed by the Deputy Inspector‑General Police on 3‑6‑1981 and as the proviso does not contemplate for filing of a revision application, the appeal was barred by time. The sum and substance of the contention of the learned counsel is that as proviso (a) to subsection (1) of section 4 does not speak of filing of revision application to a departmental authority time should be computed from the date of disposal of appeal, review or representation to the department as provided under the Punjab Civil Servants Act, 1974 or any rules. Therefore, appeal should have been filed within 30 days from the dismissal of appeal by the Departmental Authority on 3‑6‑1981. The contention, of the learned counsel entirely depends upon the interpretation of section 4(1)(a) which reads as follows:‑

 

(4) Appeal to Tribunal.‑‑‑(1) Any Civil servant aggrieved by any final order, whether original or appellate, made by a Departmental Authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later prefer an appeal to the Tribunal:

 

Provided that‑‑

 

(a) Where an appeal, review or representation to a departmental authority is provided under the Punjab Civil Servants Act, 1974 or any rules against any such order no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to a departmental authority and a period of ninety days has elapsed from the case on which such appeal, application or representation was so preferred;

 

It is well‑settled that a person aggrieved by an order of a departmental authority has two options. To file departmental appeal/representation or review and if no reply is received then on expiry of 90 days appeal can be filed before the Tribunal within 30 days. But he can even wait for the reply and may file appeal within 30 days from the communication of the order. Reference can be made to Haji Kadir Bux v. Province of Sindh and another (1982 SCMR 582). Proviso (a) to subsection (1) of section 4 of the Act bars the remedy of appeal unless the aggrieved civil servant has preferred an appeal or application for review or representation to a departmental authority. Thus, an embargo has been placed upon the right of appeal. The provisions for limitation as provided in this section or in the Limitation Act are to be given strict construction in the same way as the Penal Act as it encroaches upon the right of the subject as regards person or property. However, if there is any ambiguity the construction which is favourable to the freedom of the individual should be adopted. Reference can be made to Crawford Statutory Construction (Ed. 1940) section 349 and Maxwell on the Interpretation of Statutes (12‑Edition 251). The provision of the Limitation Act or similar ‘statutory provisions cannot be extended by analogy. The law providing limitation in seeking a remedy by an aggrieved person is an artificial embargo on free right of representation and appeal but as law favours finality of litigation and determination of disputes within a reasonable time, a period of limitation has been provided. While considering the problem as raised in the present case, the Court has to look to the object and scheme of the statute and the intention of the legislature. Section 4 of the Service Tribunals Act provides for an appeal before the Tribunal after exhausting all departmental remedies. Those named in it are appeal, review or representation to a Departmental Authority provided under the Punjab Civil Servants Act, 1974 or any rules. Therefore, the departmental remedy should be such as provided by the Act or “any rules”. The words “any rules” point out to all such rules under which an aggrieved person is entitled to seek remedy by way of appeal, review or representation. It, therefore, follows that Police Rules, 1934 which provide for appeal, review and revision are covered by proviso (a) to subsection (1) of section 4 of the Act. Rule 16.32 provides that an officer whose appeal has been rejected may apply to the authority next above the prescribed appellate authority for revision on grounds of material irregularity in. the proceedings or on production of fresh evidence and may submit to the same authority a plea for mercy provided that no application for revision of an order by Inspector‑General will be entertained. Against the appellate order of D.I: G. the appellant was entitled to file revision application before the I: G. Such revision was filed under the rules and, therefore, the question arises whether the period of limitation is to be computed from the date the revision application was dismissed or from the date of the appellate order. Proviso (a) to subsection (1) of section 4 does not speak of revision application. However, it is well‑settled rule of construction that where it is possible without doing any violence to the language of the statute a beneficial construction may be adopted while interpreting a statute which infringes upon the right of a citizen or a party. In Haji Kadir Bux v. Province of Sindh (1982 SCMR 582) while referring to the statutes of limitation, it was held that “nothing prevents the Court from adopting beneficial construction as against literal one particularly when such beneficial construction advances the invention and object of the legislation and also to facilitate the administration of justice.” In Tahir Ali and others v. Chief Judge Small Causes Court (PLD 1963 SC 147) the word `appeal’ in section 12(2) of the Limitation Act was given an extended meaning to cover “revision” provided under section 15(1) of Karachi Rent Restriction Act, 1953 which had all the characteristics of an appeal under the said Act. A liberal meaning instead of a literal one was given to achieve harmonious and beneficial interpretation which advanced the remedy of appeal. The same view has been taken in Mastak v. Lal (PLD 1991 SC 344) where it was held that while interpreting beneficial and remedial statute, the word `appeal’ can be given an extended meaning to include revision. Following the dictum laid in Tahir Ali and Mastak, in our view the word “appeal” in the proviso should include “revision” as well particularly as such remedy is provided by the Police Rules. The object of section 4 of the Act is to provide appeal after all the departmental remedies have been exhausted as provided by the Act or any Rules. If the Rules provide remedy by way of revision in addition to appeal the aggrieved party should exhaust that remedy first before approaching the Punjab Service Tribunal. It may be added that the departmental remedies should be such which are provided by the Act or any rule applicable to the aggrieved party. It would therefore be in consonance with the object of the Act to give extended meaning to the word appeal or representation to include `Revision’ as provided under the applicable Rules. Where Rules do not provide for revision and any party files it then it will be of no consequence. On such interpretation the period of limitation in this case should be calculated from the date on which revision application was dismissed. The appeal was, therefore, not barred by time. As the Tribunal had decided the appeal only on legal issues without considering the merits of the case, we allow the appeal and remand the case to the Tribunal to decide it on merits.

 

M.BA./A‑1308/S         Appeal allowed.

 

 

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