1994 PLP (C (PLC(CS))

Kadir Bux v. Province of Sindh 1982 SCMR 582 and F.E. Siddiqi's case PLD 1990 SC 692 ref. Sh. Riazul Haque for Appellant. Syed Manzar Alam for Respondents. ABDUL RAZZAQ A. THAHIM (CHAI1ZMAN).‑‑‑Mr. Farman Ullah was working as Assistant Lineman in Landi Arbab Sub‑Division, WAPDA, Peshawar. Disciplinary proceedings started against ham. He was charge‑sheeted on 25‑9‑1989. The facts in brief are that while he was posted as Assistant Lineman in Landi Arbab Sub‑Division in the year 1987. He was found in possession of two transformers. A case under section 409/411/109, P.P.C., read with section 5(2), P.C. Act, 1947 was also registered against him, He replied to the charge‑sheet and finally he was dismissed from service by the competent authority by an order dated 1‑4‑1989. He filed departmental appeal. The same was rejected by order dated 2‑7‑1989. A criminal case proceed against him in the Court of Special Judge, Anti‑Corruption, Peshawar and he was acquitted by judgment dated 16‑5‑1993. He filed second appeal to the department on 30‑5‑1993 but the same was not responded to as such he has come before this Tribunal by way of this appeal on 8‑9‑1993.

2. The appellant has also filed application under section 5 of the Limitation Act, for condonation of delay. The objections have been filed by the Department. Before we proceed to discuss the merits of the case, let us dispose of his application under section 5 of the Limitation Act. The grounds given in the application for condonation are that delay in filing the appeal is not intentional, as it has been filed in ‑ the light of the judgment of the learned Special Judge, Anti‑Corruption, and as it is based on sound and legal principle, therefore delay be condoned. This application is vehemently opposed by Syed Manzar Alam, counsel for the respondents and submitted that appellant has failed to file appeal within stipulated time and application for condonation of delay be dismissed.

3. We have heard Mr. Sheikh Riazul Haque, Advocate for appellant at length. He has argued that the very charge‑sheet and show‑cause notice are illegal as these allegations were based on the report of FLA and appellant was acquitted by the Special Judge, Anti‑Corruption. Therefore, the impugned order is illegal and may be set aside. It is submitted that in view of the case reported 1982 SCMR 581 ‑‑ Kadir Bux v. Province of Sindh‑‑the delay may be condoned as the appellant has come after the statutory period.

4. Without adverting to the merits of the case it may be observed that appellant was dismissed from service by an order dated 1‑4‑1989. His departmental appeal was rejected on 2‑7‑1989. He did not file appeal before this Tribunal and was waiting for the result of his criminal case. The judgment has been announced on 16‑5‑1993. The reason given for the condonation of delay is only that there are legal points but it was incumbent upon the appellant to have filed appeal before this Tribunal within 30 days which he has failed and the delay is mort: than 4 years. This cannot be the ground as proceedings before the Courts and disciplinary proceedings are independent nature. This position has also fully been explained in F.E. Siddiqi's case reported in PLD 1990 SC 692, where delay was not condoned. We find that no case is made out to condone the delay on the basis of pending of criminal case or decision when the allegation against the appellant is of very serious nature and he was found in the possession of two transformers for which the learned counsel has not given plausible reason. The criminal proceedings being independent nature and this cannot be a ground for condoning delay, we see that no case for condonation of delay is made outs and there is no permission for second appeal.

5. Without considering the merits, we reject the condonation application. Consequently, the appeal is dismissed as being time‑barred. H.B.T./957/Sr.F Appeal dismissed.