LIMITATION IN SERVICE LAWS
By:
ZOHAIB IMRAN
Advocate Service Tribunals
Zohaib_imran_elahi@hotmail.com
In pre-Justinian era proescriptio
included both sort of limitation, i.e.
(i)
Positive or acquisitive and second one is
(ii)
Restrictive (limitation).
The
first kind was denominated usucapio and the second exceptio. The roman usucapio has descended to modern jurisprudence under the
name of prescription and exceptio under that of limitation proper. Under the civil
law of
In
old Muslim jurisprudence neither “prescription” nor “limitation” was recognized
but now both of them are amenable to law of limitation, which makes no racial
or class distinction. (21 WR 178 PC)
NATURE
OF LIMITATION ACT 1908: Limitation Act being a procedural law that is, lex
fori. The limitation Act deals with the law of
limitation and prescription. The law of prescription is said to lay down the
period of time at the expiry of which a substantive or primary right is in
certain circumstances acquired or extinguished.
The word “prescription” as used in the Limitation Act excludes this
notion and is opposed to limitation. The right is extinguished by prescription
and cannot be operated judicially or extra-judicially. Where the prescription
extinguishes the substantive right itself, it follows as a corollary that the
remedy is also necessarily lost or barred.
CASE
LAW INTERPRETATION: - The intention of the law of limitation is not to give a right where
there is not one but to impose a bar after a certain period to file a
suit/claim to enforce an existing right. The law of limitation bars the judicial
remedy but the substantive rights itself survives and continues to be available
in other ways (AIR 1931 ALL 635 FB)
POLICY
AND OBJECTS OF LAW OF LIMITATION: -----PUBLIC POLICY------
HALSBURY’S
LAW OF
“The courts have expressed
at least three different reasons supporting the existence of statutes of
limitation, namely, (i) that long dormant claims have
more of cruelty than justice in them, (ii), that a defendant might have lost
the evidence to dispute the stated claim, (iii), that persons with good causes
of action should peruse them with reasonable diligence.”
In
other words it would be against public policy rather unfair that opposite
party/defendant/respondent should be having claim hanging over his/their heads
for long and indefinite period of time. Another view on the interpretation of
statutes of limitation suggest that time limit is necessary because with the
lapse of time, proof if any, becomes difficult, because quiet possibly the
documentary evidence is likely to have destroyed or memory of witnesses will
fade. Hence, an unlimited and perpetual threat of litigation creates insecurity
being against public policy, even otherwise contrary to the principle that
whoever wishes to enforce his rights must do within reasonable period of time
with due diligence and care.
JURISPRUDENTIAL
ASPECT:- “Salmond” “In order to avoid the difficulty and error that
necessarily result from the lapse of time the presumption of the coincidence of
fact and right is rightly accepted as final after a certain number of years.
Whoever wishes to dispute this presumption must do within the period; otherwise
his rights if he has one, will be forfeited as a penalty for his
neglect------Laws come to the assistance of the vigilant and not of the
sleepy------”
RATIONAL
BEHIND: -
“THERE SHOULD BE SOME END TO LITIGATION”
LIMITATION BARS REMEDY BUT
NOT THE RIGHT:-
CAUSE
OF ACTION AND ACT: - Rules of limitation being procedural in nature do not create any
rights in favor of any person nor do they define or create causes of action.
They simply prescribe that the remedy can be exercised only up to a certain
period of time and not subsequently.
LACHES,
ACQUISCENCE AND LIMITATION: DISTINCTION THEREOF: --- Doing nothing may be
termed as laches. Such as lapse of considerable time
in enforcing rights, unaccounted delay either by disability or ignorance or
otherwise constitute laches. Precisely rather more
correctly, delay in seeking equitable remedy is known as laches
and will disentitle the claimant to establish his claim even if the claim is
not disputed. On the other hand limitation is based on consideration of public
policy and laches if based on equitable principles.
Limitation law is enacted whereas laches depends upon
general principles constitution thereof as such. In many cases rules and
principles of limitation cannot be altered being inflexible but laches on the other hand may be adapted to the facts of
each particular case in the given circumstances. Also even where there is no laches, statute of limitation is attracted. So far as the
acquiescence is concerned, it operates in form of estoppels, by word or
conduct. In a recent judgment the hon’able supreme court held:-“Rule of laches
being not a rule of universal application, had to be applied to the facts and
circumstances of its own case” (2009 PLC
CS 506)
EFFECT
OF TIME-BARRED DEPARTMENTAL APPEAL IN SERVICE MATTERS------ALSO WHETHER WAIVER
ON LIMITATION POSSIBLE? - By consent, agreement or waiver the parties cannot extend or alter
the period of limitation. It is paramount duty of the court/tribunal to see
whether a particular lis before it is barred by time
or otherwise, as it is settled principle of law that legal questions
(limitation) must be settled and adjudicated first. The law of the land cannot
be kept aside or ignored because consent of the parties have impliedly
overruled question of limitation. The same question was also discussed in great
length by hon’able supreme court once again in
celebrated judgment cited as (2009 PLC
CS 513). Being land mark judgment states that Implied Condonation
of Delay Not permissible unless the competent authority with clear application
of mind by stating reasons therein condones the delay in filing the
departmental appeal. Further goes by holding that unless question of limitation
would remain open for consideration of service tribunal as there is no waiver
on question of limitation, particularly if question of limitation in filing
appeal or representation before departmental authority was raised before the
service tribunal. It was further held that service tribunal was bound to
examine the question and record its decision on the question of appeal being
barred by time or not. Concept of implied condonation
of delay did not fit in the scheme of law of limitation because application had
to be made for seeking condonation of delay, showing
sufficient cause to the satisfaction of the forum concerned, who might grant or
decline the same. Discretion had to be exercised in a just and legal manner and
it could not be exercised arbitrarily and fancifully. The law settled in the
judgment is “declared law” in presence of judgment cited as 2009 PLC CS 415, question
remains whether the recent judgment on the question of limitation could be
applied retrospectively so as to effect the pending cases before the tribunal.
In whatever form it may take, civil servants should not, in my personal view,
be knocked out on the ground of Supreme Court having held the law on time
barred departmental appeal. If the judgment is applied retrospectively, it will
perhaps vanish the whole litigation from the service
tribunals of this country. Question is employees who have not been equipped
with sufficient knowledge about their rights and obligations would be able to
tackle this situation.
As
per constitution, Pakistani welfare state is under bounded duty to establish
such society wherein people of
OLD
VIEW: - The
delay in the departmental appeal submitted by the civil servant would be deemed
to have condoned when the authority decides the appeal on merits and not on
limitation. This view was prevalent in the service proceedings before tribunals
when the tribunals found the appeal before them competent even time-barred
before the department on the ground that the authority had not dismissed the
departmental appeal on the question of limitation. The tribunals had followed
the concept of implied condonation of delay and
waived the limitation period for filing the departmental appeal within the
department. But the recent view in the judgment cited above has changed the
scenario.
The
above said dicta based on the principle that it is not open either for civil servant or department
concerned to waive out of a statutory provision based on public policy and general
consideration.
CONSTRUCTION
OF LIMITATION LAWS (AIR 1970 ALL 228)
The
act should be interpreted according to the following principles:-
(i)
An interpretation which is penal should be avoided;
(ii)
If possible, the interpretation which does not bar the suit
should be preferred to one which bars the claim;
(iii) If there is a
specific article, residuary article should not be applied;
(iv) All the columns
of the articles should be construed.
In construing the provisions for limitation, equitable consideration is out of place and the strict grammatical meaning of the words if the only safe guide. On the other hand it is permissible to adopt a beneficent construction of a rule of limitation, if alternative constructions are possible (AIR 1967 APP 99)
LIMITATION
IN VOID ORDERS It has been laid on various occasions by our superior courts that
limitation does not run against void orders. Effect of void order was discussed
in KLR 1999 L&S 133, where in the hon’able supreme court held as under:-
“Service tribunal was
influenced by the fact that the petitioner, approached belatedly and beyond
time. In such matters, involving principle, limitation becomes secondary issue
and a fetish technicality cannot be made. What is to be seen to whether an
action has been taken, which no action in law and which may close to being void
or of no legal effect?”
But
whether an employee should be allowed to drag the employer after long
indefinite period of time by taking plea that the orders were void and could
not attract any limitation for such purpose. Proposition was answered by hon’able division bench of
“Plea raised by petitioners
was that orders passed by authorities were void being in violation of
principles of natural justice and hence no time limit was attracted while
assailing the same, ----------, plea raised by the petitioners could not be
sustained-------Even for void orders limitation period started from the date of
knowledge; it was not the case of petitioners that they were not in knowledge
of orders passed by authorities. High court declined to condone delay in filing
the petition”
LIMITATION IN CONSTITUTIONAL
PETITION UNDER ARTICLE 199(2009 PLC CS 415)
“No time limit is prescribed
for filing of constitutional petition and the same are not hit by any time
limit. Constitutional petition under Article 199 of the constitution may well
be hit by delay and laches--------------”
ADMINISTRATION OF JUSTICE:- Above discussion leads us
to paramount conclusion that limitation based on public policy cannot be waived
except in special circumstances justifying the same even provided by law and
not else. Whether court can condone the delay, extend the time of limitation by
using inherent powers is discussed hereinafter, but it is also bounded duty of
the court to determine whether a lis before it is
within time or not. Objection even, if not taken by the opposite side as to
claim being time barred or not, does not absolve the court of its function and
duty in deciding so. Usually in service litigation the government departments
while defending the case before the tribunals don’t take the objection as to
limitation, but it is now settled by supreme court is its recent judgment cited
above that question of limitation remains open to the scrutiny of the tribunal
even if the objection of limitation taken or not by the respondents.
ONUS
lies on the claimant to prove that his claim is within time. On the analogy of
administration of justice as well as interpreted by tribunals, party has to
succeed on the merits and facts of its own cases and no body is allowed to
succeed and play on the weaknesses of other party. On the other hand courts
held that they are bound to do justice even if heaven falls. But in some cases,
claimants in time barred service appeals file affidavit and depose some facts
on oath justifying the limitation which rendered their respective claims as
barred by time. View of the tribunals in such like cases is mentioned as:-
(i) Objection as to
limitation not taken by the respondents, appeal before the tribunal held within
time and delay condoned,
(ii) Where the
appellant filed affidavit justifying facts and circumstances qua delay in
filing the appeal, no counter affidavit has been by the respondent side, the
contents of the affidavit ought to have been accepted.
(iii) Also held that
where the respondents did not taken any objection or ground in their para-wise comments, they are debarred from arguing the same
1982 PLC CS 198
(iv) Technicalities
not to
create hurdle in the way of substantial justice. Cases should be decided on
merits. where a party has proved on merits, cases not to be cancelled on
technical grounds, PLJ 2009 LAHORE(DB)
All
these law flow from the basic provision contained in the Act dealing with the
functioning of the tribunal and interpreted by the Supreme Court in 2007
SCMR 855 wherein it was held that service tribunal would be deemed to be a
civil court and could take the benefit of provisions of civil court
POWER TO CONDONE DELAY: According to Section 9 of
(i) Qua condonation, no objection was taken by the department,
tribunal justified in condoning the delay. KLR 2005 L&S 240
(ii) Wrong forum,
delay condoned. 2006 TD SERVICE 393
(iii) Prosecution
before high court in good faith, delay condoned. 1994 PLR342
(iv) Matter delayed
due to instructions of the government that no appeal competent before the
tribunal, delay condoned 1984 PLC CS 444.
(v) Delay condoned
due to wife’s illness, KLR 2005 L&S 404
PROCEEDINGS
IN GOOD FAITH BEFORE WRONG FORUM: LIMITATION
It is
settled principle of law that where law requires a thing to be done in
particular manner, it ought to be done in that manner and not otherwise.
Confusion often arises when an employee invokes the door of court having no
jurisdiction to entertain the case. Cases frequently occurred after the
promulgation of Removal From Service (SP) Ordinance 2000, wherein status of
various employees were not settled, fluctuation of law, as well as power of
court to try a lis rendered many meriteous
cases dismissed on the ground of jurisdiction which ultimately attracted the
time barred phenomenon. But it is also settled by the judgment cited as 2009
PLC LABOUR 124 that where the party agitates the case continuously with a
wrong forum which had no jurisdiction, it would be open to the said party to
seek appropriate remedy, if any and while doing so the bar of limitation will
not come in his way, his case was to be treated as falling under section 14 of
limitation Act 1908.
CONCLUSION:-
Needless
to mention that delay defeats the remedy and not the right. No body can feel
when an employee having put half of his life in government service is
technically knocked out by courts on the ground of limitation. Presumption is
that where parliament passes a law, everyone has knowledge of it, but in our
developing, depressed country, people having economic problems are not equipped
with up to date laws and amendments made thereon. There should be refresher
courses in the government/semi government departments, wherein participation of
employees should be made mandatory so that they could at least know about the
current changes in law and limitation as such. There should be clear cut
provisions whereby the authorities could be bound to convey the orders passed against
the employees by making their personal duties. Authorities violating the
judgments and observations made by the courts should be proceeded against
departmentally and burdened with heavy costs. Further the interpretation most
beneficial to employees should be followed.