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Appeal No. 28 (R) of 1985, decided on 6th April, 1985.
‑‑S. 4 ‑ Limitation Act (IX of 1908), S. 13‑Appeal before Tribunal‑ Limitation ‑ Condonation of delay‑ Justification Appellant ex‑Pakistan‑Time spent in carrying on correspondence with friends in Pakistan in order to engage a counsel and to know correct procedure‑Held : Not a sufficient cause for justification of delay‑Section 13 of Limitation Act, 1908, held, applicable for defen dant away from Pakistan and not for appellant and provisions res tricted to civil suits and not applicable to appeals either in civil Courts or in Service Tribunal.
‑‑S. 4 (1), proviso (a)‑Appeal against removal from service‑Appellant failing to substantiate that, proper department appeal filed‑Appeal, in circumstances held, incompetent and hit by proviso (a).
M. S. Siddiqui for Appellant.
Date of hearing : 25th March, 1985.
‑By way of the present appeal the appellant seeks to challenge the order of her removal from service as Trained Graduate Teacher, Federal Government Public High School, Mangla Cantt. passed by the departmental authority in March, 1984. The appeal having been filed on 21st January, 1985, on the face of it, is hopelessly time‑barred. An application for condonation of delay was, however, filed wherein it has been stated that she had been arguing out her case with the departmental authorities and received the final appellate order of the respondent No. 1, dated 31st July, 1984 towards the end of August, 1984, whereafter she carried on some correspondence with her friends in Pakistan in order to engage a counsel and to know the correct procedure which has resulted in a few months' delay in the submission of the appeal, but this, in the circumstances of the case, was unavoid able.
2. It transpired that in reply to her application, dated 27th May, 1985 an intimation, dated the 31st of July, 1984, was sent to the appellant. This intimation by no stretch of imagination, can be considered as an appellate order and is of no avail to the appellant for the purpose of enlarging the period of limitation which had already expired long ago. Further, from the material on record, it could not be substantiated that the appellant has filed any proper departmental appeal. In any case, assuming but not conceding that the time for filing the appeal before this Tribunal, as contended by the appellant, started running in the end of August, 1984, there is no satisfactory explanation for an inordinate delay occurred thereafter in filing the present appeal. For, time spent in carrying on correspondence with her friends in order to engage a counsel and to know correct procedure, in our view, does not constitute a suffi cient cause for justification of delay which thus remains unjustified and is inexcuseable.
3. Mr. M. S. Siddiqui, Advocate, appearing on behalf of the appel lant, has submitted at the bar that since she (the appellant) has been and is absent from Pakistan the present appeal is in time in view of the provisions of section 13 of the Limitation Act. The submission is, however, totally misconceived. A bare reading of section 13 of the Limitation Act makes it quite clear that it is not at all attracted to the present appeal simply because it provides that in computing a period of limitation the time during which the defendant (not the appellant) has been absent from Pakistan shall be excluded while in the instant case absence from Pakistan of the appellant and not the defendant is pleaded. Again, section 13 being restricted to suits only is not applicable to the appeals even in civil Courts. It is certainly not applicable to the appeals filed under the Service Tribunals Act, 1973.
4. The upshot of the above discussion is that the appellant has failed to explain and account for an inordinate delay occurred in filing the present appeal and also failed to substantiate that she had filed a proper depart mental appeal. The present appeal is, therefore, incompetent being barred by limitation, as well as hit by proviso (a) to subsection (1) of section 4 of the Service Tribunals Act, and is accordingly dismissed in limine.
A. E
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