MUHAMMAD USMAN QURESHI vs CHAIRMAN, WAPDA, LAHORE And Another
The petitioner sought leave to appeal against the order of the Federal Service Tribunal, which refused to restore his service appeal that had been dismissed for non-prosecution. The appeal, filed in January 1987, was fixed for preliminary hearing, but notices sent to the petitioner's given address were returned with the report that he did not reside there, and further attempts at service through a process-server yielded the same result. The Tribunal ultimately dismissed the appeal for non-prosecution in September 1987. More than five years later, in January 1993, the petitioner filed an application for restoration along with an application for condonation of delay, claiming lack of knowledge of the hearing date and reliance on his counsel. The Tribunal dismissed the restoration application due to lack of diligence, failure to communicate a change of address, and inordinate delay. The Supreme Court held that the Tribunal's refusal to restore the appeal was based on a proper exercise of discretion, and consequently, dismissed the petition for leave to appeal.
- Whether the Federal Service Tribunal properly exercised its discretion in refusing to restore an appeal dismissed for non-prosecution after an inordinate delay?
- Does failure to provide a correct postal address or communicate a change of address justify the dismissal of an appeal for non-prosecution?
- Whether an appellant can claim lack of knowledge of hearing dates when notices sent to the provided address are returned unserved?
1. SAEEDUZZAMAN SIDDIQUI, J.---The petitioner. Is seeking leave to appeal against the order of Federal Service Tribunal, Islamabad, dated 19-1-1993, whereby the learned Tribunal refused to restore to file the appeal of petitioner dismissed for non-prosecution.
2. The appeal was filed by the petitioner on 7-1-1987. It came up for preliminary hearing before the Tribunal on 2-4-1987 but on account of absence of petitioner, it was adjourned to 18-5-1987 with direction to issue notice to petitioner for that date on the address supplied by the petitioner. The notice issued to petitioner for 18-5-1987 was returned by the postal authorities with the endorsement that the petitioner was not living on the given address. In order to ensure that notice is properly served on the petitioner, the Tribunal as an abandon caution directed service of notice additionally through process- server. The process-server who took the notice for service on petitioner for 17-8-1987 also reported that petitioner was not residing on the address given by him.
3. The matter finally came up for preliminary hearing on 2-9-1987 when it was dismissed on account of absence of the petitioner. The petitioner applied for restoration of his appeal on 5-1-1993 but the learned Tribunal refused to restore the same observing as follows:-- "In his affidavit, he has stated that he had no knowledge of the date of hearing of 2-9-1987.
4. Therefore, he could not appear before the Tribunal. He did not receive the notice of appearance nor date was communicated to him by the Advocate. He has stated that, only on 2-1-1993 when he personally contacted the Registrar, he came to know of the order of dismissal, dated 2-9-1987. He has also filed application for condonation of delay supported by affidavit in which he has given the same facts and further stated that he engaged Mr. Syed Shamim Ahmed Pirzada, Advocate to represent him in the matter and to proceed with the appeal at all stages. In para 2 of the affidavit, he has stated that the appeal was presented before the Tribunal on or about 7th January, 1987. In para. 4 he has stated that while he was presenting the appeal, he was not permanently residing at Islamabad. As such, he had given the address of Mr. Muhammad Naseem Qureshi, Joint Secretary, Ministry of Commerce, and he was sure and definite that he will be communicated the date. He has also stated that whenever he contacted his Advocate he intimated that no date has so far been fixed and he is pursuing the matter and also assured him that reminders have been issued for fixation of the case. From the record it is clear that Mr. Syed Shamim Ahmed Pirzada, Advocate did not file power at all and from the application for restoration as well as the affidavit it is also clear that appeal was presented by the appellant himself. Affidavit of the Advocate has also not been filed.
5. In the memo of appeal, the appellant has given his postal address as under: Engr: Muhammad Usman Qureshi, House No. 25, Street No. 28, Sector F-8/1, Islamabad (Pakistan)
6. Notices were sent and process-server was deputed for the purpose but he was not available on the given address. The explanation and the affidavit given by the appellant cannot be accepted, particularly in the circumstances when the appellant did not communicate any change of address. There is also an inordinate delay in submitting the restoration application after such a long period and it goes to prove that he was not 'really interested in pursuing the matter diligently.
7. Even the appellant did not contact the Tribunal during the last 7 years nor any application was made by his Advocate Mr. Shamim Ahmed Pirzada, who is stationed in Islamabad, and according to him, was engaged by him to appear in his appeal. In these circumstances, no case is made out for restoration of appeal and the application is dismissed."
8. We are satisfied that the refusal to restore the appeal is based on proper exercise of discretion by the learned Service Tribunal and no interference is called for by us with the impugned order. The petition is, accordingly, dismissed and leave is refused.