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Constitutional Petition No. D‑1424 of 1979, decided on 21st August, 1984.

‑‑‑Ss. 25‑A & 65‑B‑Constitution of Pakistan (1973), Art. 199‑Application for condonation of delay‑Respondent not filing any counter‑affidavit to averment made by petitioner in his application for condonation of delay‑Held, it was open to trial Court to have delay condoned‑Appellate Court, however, could take a different view but not on basis of surmises and conjectures.

Abdul Karim v. Muhammad Ibrahim 1976 S C M R 79 rel.

‑‑Ss. 25‑A & 65‑B‑Constitution of Pakistan (1973), Art. 199‑Application for condonation of delay on ground of illness --Appellate Court without having any evidence concluding that sciatic pain was not serious illness which could have prevented petitioner from filing application under S. 25‑A, within statutory period‑Held, it would have been proper for Appellate Court to have examined doctor, if it wanted to take a different view‑Case remanded to Appellate Court with direction to provide opportunities to parties to produce medical evidence for and against in support of their applica tion for condonation of delay.

S. Fasahat Hussain Rizvi for Petitioner.

Date of hearing : 21st August, 1984.

. ‑ This petition is directed against an order dated 25th November, 1978 passed by the respondent No. 1. The brief facts to the filing of the above petition are that the petitioner was working with respondent No. 3 as an unskilled worker. It seems that he was inter alia dismissed on 1st October, 1976 ‑from the service. He served grievance notice on 20th December, 1976, to which no reply was received from respondent No. 3. In the meantime; the petitioner remained confined to bed due to sciatic pain from 1st March, 1977 to 31st March, 1977 and so he filed an application under section 25‑A of the I. R. O. on 1st April, 1977 before respondent No. 2 alongwith an application under section 65‑B of the I. R. O. for the condonation of delay for the reasons of illness. The above application for the condonation of delay was allowed and the order of dismissal was also set aside on the ground that the enquiry was not properly conducted. The respondent No. 3 filed an appeal against the order dated 19th September, 1977 passed by the respondent No. 2 which was allowed by the respondent No. 1 by the impugned order on the ground that the petitioner failed to make out a case for the condonation of delay in filing of his original application under section 25‑A of the I. R. O. The petitioner being aggrieved by the above order has filed the present petition.

2. We have heard learned counsel for the parties and we find that respondent No. 2 had condoned the delay inter alia for the reason that no counter‑affidavit to the application under section 65‑B of the I. R. O. was filed by the respondent No. 3. The reliance was placed on Supreme Court case, Abdul Karim v. Muhammad Ibrahim (1976 S C M R 79). However, the learn ed Sind Appellate Tribunal i.e. respondent No. 1 for the reasons recorded in para. 6 has dismissed the above application on the ground that the same was time‑barred. It may be advantageous as to reproduce herein para. 6 as follows: ‑

"I have heard the learned counsel of the parties and I am of the view that the delay was wrongly condoned. In the first place sciatic pain is not of serious nature as to prevent a party from approach ing the counsel or the Court for initiating the proceedings. Secondly the mere production of Medical Certificate was not enough as the Medical Officer who had issued the medical certificate was not produced in evidence and, therefore, the other party had no oppor tunity to cross‑examine the Medical Officer in order to show that the illness was not of such a nature as to prevent the respondent from seeking the remedy which he has now sought. The bare certi ficate had to be excluded from consideration."

3. In our view, the reason given by the learned respondent No.1 cannot be supported without having further evidence on record. Since respondent No. 3 had not filed any counter affidavit to the‑averment made by the petitioner in his application under section 65‑B of the I.R.O., it was open to the respondent No. 2 to have condoned the delay as held by the Supreme Court of Pakistan in the above case. However, it was open to respondent No. 1 to take a different view in the matter being an appellate Court but this could not have been done on the basis of the surmises and conjectures. Without having any evidence on record it has been concluded by the respondent No. 1 that sciatic pain is not serious illness, which would have prevented the petitioner from filing the application under section 25‑A of I.R.O. within the statutory period. In our view, it would have been proper for respondent No. I to have examined the doctor if it wanted to take a different view in the matter in order to arrive at a conclu sion that the above illness was not of the nature which could have prevented the petitioner from filing the above application under sec tion 25‑A of the I.R.O. We would, therefore, remand the case to the respondent No. 1 with a direction to provide opportunity to the parties to produce medical evidence for and against in support of section 65‑B of the I.R.O. The petition is disposed of in the above terms with no order as to costs.

M. A. K.

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