1981 PLP M (SCMR)

ANWARUL HAQ, C J.-This petition seeks leave to appeal against the order of the Sind Services Tribunal dated the 2nd of September, 1980, by which a service appeal filed by the petitioner against the order of his dismissal from service, was summarily dismissed. The relevant facts are that while employed as a Treasury Clerk in the office of the Deputy Commissioner, Larkana, the petitioner was charge sheeted for willful absence from duty, and for being involved in a case of -fraud. As he denied the charges, a regular inquiry was held by the Additional Deputy Commissioner, who found the petitioner guilty on the charge of absence without leave, but exonerated him of the charge of being implicated in the fraud case, observing that those allegations were being inquired into separately in a Court of law. The Enquiry Officer rejected the plea of the petitioner that he had fallen ill, and had subsequently been taken into custody by the police without any warrant or remand, and that the petitioner reported for duty soon after he was released from unlawful custody on the 6th of August, 1977. On the basis of the findings recorded by the Enquiry Officer the Deputy Commissioner, Larkana, passed an order on the 19th of June, 1978, dismissing the petitioner from service. Instead of filing a departmental appeal, the petitioner filed an appeal before the Services Tribunal, which was however, dismissed in limine on the 21st of January, 1979, on the ground that the petitioner should have filed a departmental appeal, in the first instance. Thereafter the petitioner filed a departmental appeal before the Divisional Commissioner, which was dismissed by this officer on the 22nd of January, 1980. The petitioner then filed an appeal before the Service Tribunal, which has been dismissed by the order under appeal on the ground that as the appeal filed by the petitioner before the departmental authority was hopelessly barred by time and was not maintainable, therefore, the appeal filed before the Tribunal was also not maintainable. The Tribunal has added that the departmental appellate autho rity is not vested with any power to condone delay; and that, in any case, the Commissioner had not dealt with the question of condo nation of delay as no such application was made before him by the petitioner, even though the appeal filed before the Commissioner was highly belated. Leave to appeal is sought on the ground that the Tribunal has seriously erred in holding that the appeal filed by the petitioner before it was not maintainable for want of a proper departmental appeal before the Divisional Commissioner, as it was for the Divisional Commissioner to take note of any delay that had occurred in filing the appeal before him, and once he had considered the petitioner's appeal o n merits, it was clearly implied that he had condoned delay. It is submitted that this being the correct position in law, the appeal filed by the petitioner within 30 days of the dismissal of his departmental appeal was within time and fully competent, and the Service Tribunal was under a legal obligation to dispose of the same on merits. In support of these submissions the learned counsel has placed reliance on Muhammad Yusuf v. Member, Board of Revenue, West Pakistan (1970 S C AM R 170) in which the view was taken that if tire Collector was conscious of delay in filing the appeal before him, and still proceeded to consider the matter on merits, it should be presumed that he had implied condoned the delay. After hearing the learned counsel for the petitioner at some length we are of the view that this is not at all a fit case for the grant of special leave to appeal, and it is not necessary to decide, in the present proceedings, the various questions raised on behalf of the petitioner. We find that on facts the Enquiry officer had recorded proper findings regarding the willful absence of the petitioner from duty without leave. The plea of the petitioner the A he had been taken ill during the relevant period was not supported by proper medical certificate, countersigned by the official Doctor. Similarly the plea of the petitioner that he had been kept under unlawful detention by the police in connection with the alleged fraud case, and was released only on the 6th of August, 1977, was also not supported by any cogent evidence. The learned counsel drew our attention to a number of telegrams sent to the authorities by a brother of the petitioner, but those telegrams were all sent from 16th of July, 1977, onwards, and do not constitute documentary proof of his alleged detention since the 5th of February, 1977. It is, indeed, remarkable that although the petitioner was an official of the Deputy Commissioner's office, he chose to remain in unlawful custody of the police without moving any higher authority or Court of law during the month of February, March, April, May and June, 1977. In these circumstances there was ample material on the file to sustain the charges leveled against the petitioner, and no useful purpose would be served by our remanding the case to the Services Tribunal, even if we were to accept the various legal submissions made on his behalf. AS a result of our examination of the petitioner's case, we therefore, are of the considered opinion that this is not at all a fit case for the grant of specie leave to appeal. We would, accordingly, dismiss this petition. Appeal dismissed.