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Appeal No. 165/ 132 of 1974, decided on 5th September, 1979.
S. 4 read with Martial Law Order, 1977 [C. M. L. A.'s] No. 23 Review under M. L. O. 23 availing of‑No formal/writer withdrawal of appeal pending before Tribunal‑Effect‑Appeal deemed to have been withdrawn‑Availing of remedy of review, held, disentitles appellant to continue with pending appeal.
‑In this appeal the appellant has also availed of the remedy prescribed under M.L.O. 23, which provides as under:‑
"3. (2) A person referred to in sub‑paragraph (1) whose appeal or petition against compulsory removal from service is, on the date of coming into force of this Martial Law Order, pending in a Court or with a Service Tribunal, may submit a Review Petition under that sub‑paragraph only after he has withdrawn his appeal or petition from the Court or Service Tribunal, as the case may be.
The appellant, however, claims that he did not withdraw his appeal, in writing, therefore, notwithstanding the fact that he availed remedy under M. L. O. 23 vide Review Petition he is entitled to continue the present appeal, He thus pressed to have his appeal decided on merits. After hearing the appellant, we are afraid, we are unable to accept the contention of the appel lant. In the first instance, the provisions of M. L. O. 23 did not contemplate withdrawal in writing. Even the conduct of the appellant in pressing the Review Petition in the face of the above express provision is tantamount to withdrawal of his appeal pending before this Tribunal. We are inclined to hold that there was a clear choice either to resort to remedy prescribed under M. L. O. No. 23, or to continue with the proceedings already instituted by the petitioner before other forums. The fact that the present appellant filed a Review Petition and pressed the same to its logical conclusion in our opinion is sufficient to disentitle the appellant to continue with this appeal. In our view the conclusion is inescapable that the appellant should be deemed to have withdrawn his appeal. In this view of the matter, the appeal is deemed to have been withdrawn and is accordingly rejected.
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