1988 PLC(CS) 883

ORDER

1. M. SALEEM CHAUDHARY (CHAIRMAN).‑‑ This appeal by Sardar Muhammad, an ex‑Assistant Vernacular Clerk, Irrigation Department is directed against the orders of Superintending Engineer, Lower Chenab Canal East Circle, Lyallpur dated 14‑12‑1972 and Chief Engineer, Lyallpur Region dated 31‑3‑1972 against his compulsory retirement on the charge of misconduct viz. perfunctory check and collaboration with the Patwari of Chak No. 177/G.B. District Lyallpur to defraud the Government of the canal water rate amounting to Rs.631.96.

2. The appellant initially filed a Suit No. 1356 on 8‑10‑1973 before the Civil Court at Lyallpur which abated on 19‑9‑1974 under section 8 of the Punjab Administrative Tribunals Act, 1974 (hereinafter described as the Act) on the constitution of this Tribunal on 22‑7‑1974. This appeal purporting to be under section 4 of the above Act has been filed on 5‑3‑1975 and is accompanied by an application under section 5 of the Limitation Act for the condonation of delay on the plea that "the petitioner remained sick for a long period and could not file the appeal".

3. The Act provides two separate appeals' one under section 4 and the other under section 8 and for each category separate period of limitation has been prescribed. The relevant portions of the sections 4 and 8 are reproduced herewith:‑ xx xx xx

4. Section 4 reproduced above primarily provided for appeals by civil servants aggrieved by the orders of departmental authorities, whereas section 8 contemplate appeals both by the departmental authority and the civil servants. As regards the appeals by the departmental authority or the civil servants other than those aggrieved by the orders of departmental authorities are concerned, there is no difficulty as the same exclusively fall under section 8 of the Act which prescribed a period of 90 days from the establishment of this Tribunal. However, even in such cases time requisite for obtaining the copies of the orders of the Civil Courts might be deductible by virtue of section 9 of the Act which enacts that sections 5 and 12 of the Limitation Act shall apply to appeals under the Act. No doubt the Act or rules framed there under do not specifically require that the copy of the abatement order should necessarily accompany the grounds of appeal, but we had noticed in quite a few cases that the parallel proceedings by way of suit, appeal etc. were still being perused before the other forums. Thus, to obviate the situation a practice had been evolved to require the appellant to file the copy of abatement order before us. As such even though the tiling of the abatement order is not a statutory requirement but still the time was allowable on the basis of practice of the Tribunal.

5. This view is amply fortified by a Full Bench decision of the Lahore High Court, i.e., A I R 1941 Lah. 257.

6. "It must, therefore, be held that the decision in 16 Lahore 448 is not correct in so far. as it purported to lay down in broad terms, that the time requisite for obtaining a copy of the judgment appealed from which under the rules of High Court need not be filed with the memorandum of appeal cannot be excluded for the purposes of limitation in the case of appeals under the Letters Patent."

7. This view has been followed in P L D 1967 Kar. 537 and their Lordships of Karachi High Court observed as follows:‑‑

8. "However, for the reasons contained in the said Full Bench decision of the Lahore High Court with which we are in respectful agreement, this argument must be repelled. The fact that a copy of the judgment need not be accompanied is merely a facility which is permitted under the rule but it often becomes necessary for a counsel to examine the judgment before drafting the grounds of appeal. Therefore, when such a copy has been applied for it is difficult to see how the time taken in obtaining such copy is not to be excluded in computing the period of limitation, particularly when the rule itself provides that section 12 of the Limitation Act would apply."

9. The Supreme Court of Pakistan also approved the view in P L D 1974 S C 17.

10. However, in the appeals by the civil servant aggrieved by the order of the departmental authority the issue does not appear to be as simple. He may have a right of appeal available both under sections 4 and 8 whichever may be more beneficial to him.

11. There may be cases where at the lime of abatement the Civil Court whether trial or the appellate Court had passed the final judgment or decree against the civil servant and the appeal against the same was pending before the higher forum. In such cases we are of the view that the civil servant concerned could come to us only via section 8 of the Act because it is the case of appeal against the orders of the Court also and not against the departmental authority only. But in cases where no final judgment or decree has been passed by any civil Court the civil servant concerned might legitimately claim for availing of the benefit of section 4 which provides for larger period. There is nothing in section 8 to limit the right of an aggrieved civil servant under section 4 of the Act. In fact, in such cases sections 4 and 8 had to be read as complementary. The contention of the appellant, that Limitation Act takes away the existing rights and should be construed with reasonable strictness and in favour of the right to be defeated thereby anti also if the provision leaves a reasonable doubt as to its meaning, the benefit of the doubt should be given to the plaintiff, appeared to be valid. Thus we are of the view that the appellant in the circumstances of his case was entitled to file this appeal under section 4 and abatement had no affect on the period limitation prescribed under section 4.

12. However, on facts of this case we are not persuaded to hold that the appellant has succeeded in making out any case for condonation of delay. Even under section 4 he was required to file the appeal by 21‑1‑1975 at the latest. Under section 4 appellant was not entitled to deduct any period requisite for obtaining copies of order under section 12 of the Limitation Act. Even adding the period so spent which was 27 days, the last date for the filing of appeal fell on 17 2‑1975. The appeal was barred by 43 days or in any event by 16 days. The appellant in his application has miserably failed to disclose the duration, the nature or gravity of his ailments. The application is significantly silent on these points. It has not been alleged even formally that the ailment confined him to bed or incapacitated him to the extent that he could not contact, engage or instruct a counsel. The plea of illness is not supported by any medical certificate or any other documentary evidence. The appellant in law was duty bound to explain the delay for each and every day. In the circumstances, we do not feel inclined to accept the explanation for delay. Consequently we hold that the appeal is barred by time and is accordingly dismissed in limine.

13. S.Q./230/Sr.S

14. Appeal dismissed.