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Civil Petition for Special Leave to Appeal No. K‑116 of 1979, decided on 27th January, 1980.
(On appeal from the judgment/order of the Federal Service Tribunal Camp, Karachi dated 12‑9‑77 in Appeal No. 50(K) of 1977).
‑‑ Art. 212‑Appeal against order of Service Tribunal‑ Held, com petent only on ground of law of public importance‑Plea of fact in such case cannot be agitated before Supreme Court.‑[Question of fact].
‑‑ S. 5‑Condonation of delay‑Plea not raised in application before Tribunal‑Held, cannot be permitted to be raised for first time before Supreme Court.
‑‑ S. 5‑Condonation of delay‑Decision of question whether delay should not be condoned lies within discretion of authority before whom matter agitated‑Such discretion cannot be interfered with unless found to have been exercised illegally or arbitrarily.
Z. U. Ahmad, Advocate Supreme Court and M. Shabbir Ghaury, Advocate‑on‑Record for Petitioner.
Nemo for Respondents.
Date of hearing : 27th January, 1980.
‑The services of the petitioner while working as Assistant Accountant, Regional Representative, WAPDA, Karachi, were terminated by an order passed on the 2nd June, 1977 under sec tion 17(1‑A) of the Water and Power Development Authority Act, 1958. A copy of this order was sent to the petitioner by post, but the case of the petitioner is that he never received it although the endorsement op the letter by .the Postal authority is that he "refused" to accept it. The petitioner appears to have filed a representation to the Water and Power Development Authority but did not receive any reply. He also moved the Labour Court against the order of termination of his service but then withdrew these proceedings and eventually filed an appeal before the Service Tribunal on 8th September, 1977. He also filed an application for condonation of delay because admittedly the period of limitation for filing the appeal in the circumstances of his case was only 30 days. In support of his plea that the delay in filing the appeal may be condoned urged that the order dated 2nd June, 1977, was never served on him because it was sent at the wrong address. The Tribunal did not accept this explanation holding that the endorsement of the postman on the back of the letter showed that the petitioner had refused to accept it. Even otherwise, according to the Tribunal, the petitioner had full knowledge of the order of his termination when he made a representation to the WAPDA and also when he, in the first instance, sought remedy from the Sind Labour Court at Karachi. The appeal was, therefore, dismissed as barred by time by the order of the Service Tribunal dated 13th February, 1979. This is a petition for leave to appeal under Article 212 of the Constitution against the said order.
Mr. Z. U. Ahmad in support of this petition reiterated the plea raised before the Service Tribunal that the order of termination sent to the petitioner was at a wrong address and, therefore, he never received it. However, this plea has been dealt with in the order of the Service Tribunal and being a plea of fact cannot be agitated before us in so far as the appeal against the order of a Service Tribunal is only competent on the ground of law which is of public importance. The learned counsel then submitted that the time spent by the petitioner while pursuing his remedy before the Labour Court should be excluded and in this connection relied upon P L D 1975 A J & K 131 wherein it has been held that the time spent in agitating a remedy bona fide before a wrong forum can be excluded.
We have perused the application for condonation of delay filed before the Service Tribunal as also the order of the Tribunal wherein the pleas raised in support of the application for condonation of delay have been spelt out in some detail that this last‑mentioned plea was not raised before that Tribunal. We cannot, therefore, permit this plea to be raised before us for the first time.
The question whether limitation should not be condoned lies within the discretion of the authority before whom a matter is agitated and this discretion cannot be interfered with unless it has been exercised illegally or arbitrarily. This is not the case here. The result is that this petition must, therefore, fail which is dismissed hereby.
Petition dismissed.
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