1970 PLP 291 (PLC)

Collector of Central Excise and Land Customs West Zone Chittagong v. A. K. M. Waliullah Chowdhry P L D 1966 S C 788 fol. Syed Mohammad Iqbal Shah for Petitioner. Saadullah Mumtaz for Respondent. In this application lodged by Ulfat Hussain ex‑Conductor of the Lahore Omni Bus Service, Lahore, in which he prayer for his re‑instatement, an objection was taken by the respondent, that the application deserves to be dismissed, inasmuch as, it is belated, having been filed more than two years after dismissal, I allowed the parties to produce evidence with regard td this objection. The petitioner alone has come into witness‑box and no evidence has been led by the respondent, who has raised the objection, in rebuttal. Arguments have been heard. The petitioner, while explaining the delay in coming to this Court stated, that he had filed an appeal against his dismissal to the Traffic Manager. It was filed by him on 25-8‑

66. As he did not receive information about the result of the appeal, he sent reminders to the Traffic Manager on 5‑10.1966, 9‑2‑67, 12‑6‑67, 8.11.67 and 14.4.68. In spite of these reminders, when no reply was received by him, he approached this Court. The contention of Mr. Saadullah Mumtaz, who has appeared on behalf of the respondent is, that the appeal preferred by the petitioner had been rejected by the Traffic Manager in October 1966 and the respondent was duly informed by a letter of, which Exh. R, 1 is the copy. The petitioner admitted, that his address mentioned in Exh. R. 1 was correct, but added he did not receive its copy. Illustration `F' of section 114 of the Evidence Act no doubt provides that the Court may presume that the common course of business had been followed in particular case. However, the aforesaid illustration would have no application in the instant case, because there is not even the slightest evidence, that the original of Exh. R. 1 was ever posted. There is no indication in this document, if its copy was sent by post, whether it was sent by registered or ordinary post. Such being the state of evidence before me, I cannot agree with the contention of Mr. Saadullah Mumtaz that the mere fact, that the address mentioned in Exh. R. 1 was correct, the original of this letter must have beer posted and, therefore, normally should have been received by the petitioner. Mr. Saadullah Mumtaz admitted before me, that under the R. T. C. Rules, the petitioner was entitled to file a departmental appeal, though he added, that the appeal had to be tiled within six weeks and not beyond that period. Whether the appeal was filed is time or beyond time is not for me to decide in these proceedings. Suffice it to say, that it is not denied, that the petitioner hid filed an appeal and I have no cogent evidence that he was ever informed of its result. I have dismissed some applications on the ground of delay in coming to this Court. I have not condoned tire delay in cases, where it exceeded six months: However, it is a question of fact, whether in a given case and circumstances, the delay should be 6endoned or not. I am conscious of having held is tile vase of Sadiq Hussain v. R. T. C. (Application No. 128 of 1968) that the petitioner need not have waited for the decision of the appeal or revision, "because the right given to him by section 38 of the Industrial Disputes Ordinance, 1968, is independent of the right of filing appeal or revision". X had however, added, "Even if we exclude the period, which was spent by hint' in getting a decision of appeal and revision, then also, he bas not been prompt in coming to this Court. He has not explained the inordinate delay.' When I observed that the petitioner need not have waited for the decision of the appeal or revision in the aforementioned case, I vas not aware of the decision of the Supreme Court, reported as The Collector of Central Excise and Land Customs, West Zone, Chittagong v. A. K. M. Wallullah Chowdhry (PLD 1966 S C 788)... In that case Waliullah Chowdhry who described himself as a Deputy Superintendent of Central Excise and Load Customs was dismissed from service by the Collector on 19‑12‑1959. He filed a writ petition against his dismissal on 7‑2‑1963. Admittedly the intervening period had been spent by Wali Ullah in an appeal to the Central Board of Revenue, which was rejected after remaining conding for over two y6ari, on the 19th September 1962. The Court held : ‑‑ "In the circumstances, it could not be said that there was 'inordinate delay in moving the writ petition." If, my As assumption from the evidence, that the result of the departmental appeal wad either not communicated to the petitioner 8 or was not received by him is correct, then the delay in presenting this application to this Court has boon properly explained. For the foregoing reasons, therefore, the objection is overruled and the application shall proceed.