2021 PLP (C (PLC(CS))

RAJA SAEED AKRAM KHAN, ACJ.

The appellant, Riffat Shaheen, challenged the notifications dated 16.09.2019 and 23.09.2019 by filing Appeal No.782/2019 before the Service Tribunal. The appeal was admitted for regular hearing at Headquarter, Muzaffarabad on 01.10.2019. Through the same order, the appellant, herein, was directed to deposit requisite security and process fee within a period of one week. On 10.10.2019 the appellant filed an application for depositing the security fee on the ground that due to earthquake she could not deposit the same within time. The learned Service Tribunal vide impugned order dated 12.10.2020 dismissed the appeal due to non-furnishing of process and security fee and as well as for non-compliance of Court order, hence, this appeal by leave of the Court.

2. Mr. Haroon Riaz Mughal, Advocate, the learned counsel for the appellant contended that the impugned order of the Service Tribunal is patently illegal. He submitted that the appellant could not deposit the security fee due to earthquake. The appellant filed an application for extension of time but the same was not considered while passing the impugned order. He added that under Rule 11(3) of the Azad Jammu and Kashmir Service Tribunal Procedure Rules, 1976 the appellant was to deposit the security fee within a period of one week or within such extended period as may be allowed. The learned Service Tribunal should have granted extension to the appellant for depositing the security fee. Furthermore, the delay of one day was not fatal. He further argued that after admission of appeal at Headquarter Muzaffarabad the appellant attempted to deposit the security fee but he was refused. The file was transferred to circuit office, Mirpur and it took five days to reach Mirpur, hence, the delay was not intentional. He further added that the delay of one day was also liable to be condoned on the ground that 8th of October, 2019 was a public holiday. In these circumstances, the learned Service Tribunal illegally dismissed the appeal due to non-furnishing of process and security fee.

3. Conversely, Raja Ayaz Ahmed, Assistant Advocate-General and Sardar M.R. Khan, Advocate for the respondents submitted that the impugned order is well in accordance with law. The appellant failed to furnish the process and security fee within the stipulated period, hence, the learned Service Tribunal has rightly dismissed the appeal.

4. We have heard the learned counsel for the parties and gone through the record. The appeal filed by the appellant was admitted for regular hearing on 01.10.2019 and she was directed to deposit the requisite security and process fee within a period of one week. On 10.10.2019, the appellant filed an application for extension of time for depositing the security fee on the ground that due to earthquake in Mirpur city the needful could not be done within the stipulated period, therefore, the time be extended and the appellant be allowed to deposit the fee. The learned Service Tribunal not only rejected the application but also dismissed the appeal due to non-compliance of Court order. After consideration of overall facts and circumstances of the case, we are of the view that the learned Service Tribunal, in the given circumstances, should have extended the time for depositing the requisite security and process fee. Furthermore, a harsh order which deprives the party from right to access to justice cannot be passed until and unless the circumstances so compel the Court and leave no other alternative due to conduct of the party. In this state of affairs, we accept this appeal, set-aside the impugned order of the Service Tribunal and remand the case for deciding the same on merit after hearing the parties according to law. This appeal is accepted in the above terms with no order as to costs. SA/8/SC (AJ&K) Appeal accepted.