IDREES AHMED KHAN Versus CHIEF ENGINEER, IRRIGATION SUKKUR REGION

1. GHULAM RASOOL SHEIKH (CHAIRMAN).‑- The present appeal arises on account of order dated 6‑3‑1972 passed by the Chief Engineer, Irrigation, Sukkur awarding three punishments to the appellant via (i) stopage of two annual increments, (ii) recovery of Rs. 24,426 being the cost of bags lost by him and (iii) censure.

2. The appeal came up for preliminary hearing on 6‑2‑1979 and is disposed of on a point of limitation.

3. The appellant after receiving the impugned order dated 6‑3‑1972 filed a constitutional petition in the High Court of Sind on 29‑1‑1973. The said petition was dismissed in default somewhere in 1974. It was restored on 8‑2‑1974. It was again dismissed in default on 19‑4‑1974 and again restored on 13‑9‑1974. The said petition was finally dismissed as with drawn and disposed of on 29‑11‑1978 on the grounds that the proper remedy for seeking redress lay before this Tribunal. Thereafter the appellant filed this appeal on 21‑1‑1979.

4. The main contention of the appellant was that since his constitution petition was dismissed by the Hon'ble High Court of Sind on 29‑11‑1978, he applied for a copy of such order and after engaging the services of an advocate, he could file this appeal only on 21‑1‑1979. He has filed the application under S. 5 of the Limitation Act, 1908 for condoning the delay. The grounds advanced by him are that he was pursuing his writ petition in the High Court and that he took time to apply for a copy of the order passed by the High Court and to engage an Advocate for the purpose.

5. We have heard his arguments and examined the record and we are of the opinion that this appeal is hopelessly time barred and the grounds advanced by him for condonation of delay are not such as to be taken into account.

6. Under section 4 of the Service Tribunals Act, 1973 the instant appeal has to be filed 12 months of the establishment of the Tribunal. Under section 6 ibid, all applications pending in any Court immediately before the commencement of the Sind Service Tribunals Act as may be enacted by the parliament, under Article 212 of the Constitution of 1973, shall abate on the commence ment of the Service Law. The Provincial Service Tribunal (Extension of Provisions of Constitution) Act, 1974 (Federal Act XXXII of 1974), came into operation on 2‑5‑1974. This being the position of law, the writ petition filed by the appellant before the High Court abated on 2‑5‑1974 and that only remedy available to him was to file appeal under section 4 ibid before this Tribunal by 2‑5‑1975. It may also be noted that on 2‑5‑1974 writ petition in the High Court was not pending as it was dismissed on 19‑4‑1974 and was restored on 13‑9‑1974 i.e. about 4 months after the remedy to this Tribunal was made available to him. It may also be added that this Tribunal had exclusive jurisdiction to entertain the appeals and the jurisdic tion of all other Courts were barred. Although section 12 of Limitation Act is not applicable yet it cannot be said that the appellant was bona fid pursuing the remedy in the High Court. So far section 5 of Limitation Act is concerned no sufficient ground has been made out for condoning the delay.

7. Appeal is summarily dismissed.

8. Appeal dismissed.