2009 SCMR 1435 (PLP)

CH. IJAZ AHMED, J.

Abdul Rashid, petitioner, seeks leave to appeal against the impugned judgment, dated 31-1-2009 whereby the Federal Service Tribunal, Islamabad, dismissed his appeal as time-barred.

2. Detailed facts have already been mentioned in para.2 of the impugned judgment, however, necessary facts out of which the present petition arises are that petitioner while working as Postal Clerk, Khanewal G.P.O., was served show-cause notice containing allegations of inefficiency and misconduct under the provisions of Efficiency and Disciplinary Rules, 1973. The competent authority after completing the legal formalities awarded the punishment of reduction in his pay equal to two steps with immediate effect vide order, dated 25-4-1998. The petitioner being aggrieved filed departmental appeal before the appellate authority on 20-9-2000 which was finally decided by the appellate authority (Deputy Postmaster-General) vide order, dated 19-9-2002 wherein the punishment awarded to him was upheld by specifying the period of punishment as one year as the same was not mentioned in order, dated 25-4-1998. Subsequently, the petitioner filed representation to the appellate authority on 10-9-2003 which was rejected vide order, dated 13-10-2003 by observing as follows:-- "decision dated 19-9-2002 is final and holds good." Petitioner being aggrieved filed Appeal No.1235(R)(C.S.) of 2003 before the Federal Service Tribunal, Islamabad, on 19-11-2003 which was dismissed as time-barred vide order dated 31-1-2009, hence the present petition.

3. Learned counsel for the petitioner submits that learned Service Tribunal had erred in law to dismiss the appeal of the petitioner on technical ground as time-barred. The judgment of the learned. Service Tribunal is not in consonance with the law laid down by this Court as this Court had laid down principle in various pronouncements that cases must be decided on merits and the poor litigant could not be non-suited on technical grounds including limitation. He further urges that petitioner filed an application before the Service Tribunal for condonation of delay which was not decided by the learned Service Tribunal after application of mind. He further maintains that his last representation was finally decided by the appellate authority on 13-10-2003 whereas the petitioner had filed appeal before the Service Tribunal on 19-11-2003, therefore, appeal of the petitioner was not time-barred before the Service Tribunal but the Service Tribunal did not consider this aspect of the case.

4. We have given our anxious consideration to the contentions of the learned counsel for the petitioner and perused the record with his ' able assistance. It is better and appropriate to reproduce the basic facts in chronological order to resolve the controversy arising out of this petitions:

(i) Inquiry Officer was appointed by the Competent Authority vide order dated 19-3-1997. (ii) The Inquiry Officer after completing the legal formalities found him guilty. vide its report, dated 5-7-1997. (iii) Show-cause notice was served upon the petitioner on 29-8-1997. (iv) The competent authority awarded punishment of reduction of two steps to the petitioner vide order, dated 25-8-1998 without prescribing the period on account of inefficiency and misconduct. (v) Departmental appeal was filed, by the petitioner on 20-9-2000 which was finally decided by the appellate authority on 19-9-2002. (vi) The representation was filed by the petitioner on 10-9-2003 which was rejected on 13-10-2003` by informing the petitioner that the decision, already taken on 19-9-2002, is final. (vii) The petitioner filed appeal before the Service Tribunal on 19-11-2003.

5. In case the aforesaid facts are put in juxtaposition then it is crystal clear that the petitioner filed departmental appeal against the order of the appellate authority dated 25-4-1998 on 26-9-2000 after a delay of about 2 years and five months. It is pertinent to mention here that the Appellate Authority decided his appeal on 19-9-2002. The petitioner did not, agitate the matter before any forum till 10-9-2003 which was rejected vide order, dated 13-10-2003 by informing the petitioner that order, dated 19-9-2002 is final. The learned Service Tribunal after application of mind had given findings of fact against the petitioner that his appeal before the Service Tribunal was highly time-barred as is depicted from para.6 of the impugned judgment. This Court cannot interfere in the findings of fact arrived at by the Service Tribunal while exercising the power under Article 212(e) of the Constitution as dictum laid down by this Court in Ch. Muhammad Azim's case 1991 SCMR 255 and Muhammad Nawaz's case 1982 SCMR 880.

6. It is settled proposition of law that law favours the diligent litigant and not the negligent. As mentioned above the petitioner was not vigilant to agitate the matter before the competent authority or before Service Tribunal within prescribed period. The learned Service Tribunal was justified to dismiss the appeal of the petitioner as time-barred. See Muhammad Sharif's case 1981 SCMR 1158. It is settled proposition of law that mere repetitions of representation would not by itself enlarge the prescribed period of limitation. Any relaxed view in this regard did not defeat real object and spirit of law which consciously restricts and controls period for availing of relief as law laid down by this Court in various pronouncements including the following judgments:

(i) Bashir Ahmed Khan's case PLD 1985 SC 309 and (ii) Muhammad Hasham's case 1990 SCMR 1440.

7. It is the duty and obligation of the aggrieved person to pursue his legal remedy with diligence and satisfy conscious of the Court or quasi-judicial authority for approaching respective forums beyond prescribed limitation coupled with the fact that in case the aggrieved person has not availed remedy within the prescribe period then the vested right had accrued to the other side which cannot be taken away rightly even if objections to that effect were not raised by the opposite party. This Court had already taken aforesaid view in the following judgments:-- (i) Hakim Muhammad Buta's case PLD 1985 SC 153 (ii) Muhammad Hussain's case PLD 1993 SC 147.

8. It is also settled proposition of law that it is the duty and obligation of the aggrieved person seeking condonation of delay must D have to justify each days' delay. Petitioner in his application for condonation of delay did not raise any plausible reason/ground fort condonation of delay which is a condition precedent for condoning the delay as law laid down by this Court in the following judgments:-- (i) Ali Muhammad's case PLD 1996 SC 292, (ii) Muhammad Saleem's case PLD 1995 SC 396, (iii) Muhammad Feroz Khan's case 1986 SCMR

930. The aforesaid proposition of law is also supported by the law laid down by this Court in Zaffar Iqbal Khan's case 2003 SCMR 1471. It is settled law that period of 120 days for filing appeal under proviso to section 4 of Service Tribunal Act, 1973 is available and appeal must be filed within 30 days as law laid down by this Court in Haji Kadir Bux's case 1982 SCMR

582. The learned Service Tribunal had examined all controversial questions of law and fact in a comprehensive manner after having scrutinized entire record and relevant laws. The learned Service Tribunal had exercised its discretion judiciously, which was neither arbitrary nor capricious, hence, conclusion drawn by Service Tribunal was in accordance law and settled norms of justice. We do not find any ambiguity or illegality warranting interference by us. As mentioned above, the learned Tribunal has dismissed the appeal as time-barred, therefore, finding of Tribunal is conclusive which cannot be challenged unless the same is result of misreading or non-reading of record. See Syed Ali Hasan Rizvi's case 1986 SCMR 1086. Even otherwise the petitioner has failed to raise any question of public importance in the present case as contemplated under Article 212(3) of the Constitution.

9. In view of what has been discussed above, we do not find any merit in this petition and the same is dismissed. Leave refused. M.H./A-35/SC Petition dismissed.