Moazzam Hayat, Member.--Appellant Muhammad Haroon was a Driver in the Anti-Narcotics Force. He was granted leave from 01.09.2009 to 30.09.2009 but did not join duty on 01.10.2009. He was charge sheeted on 09.12.2009. On 31.03.2010 he was dismissed from service under the Removal from Service (Special Powers) Ordinance. 2000. His departmental appeal dated 13.04.2010 was rejected on 26.05.2010. The present appeal was filed on 26.07.2010, The appellant was given 15-days by the Registrar upto 10.08.2010 to make up the deficiencies in the memo. of appeal. Instead of filing appeal within the stipulated period it was filed on 13.08.2010. In this manner the appeal was delayed by three days. The Office had reported that appeal was liable to be dismissed under Rule 10(2) of the Service Tribunals (Procedure) Rules, 1974. However, on the request of counsel for the appellant the appeal was placed before the Bench.
2. According to the respondents the departmental appeal filed by the appellant was rejected on 26.05.2010 due to non-fulfillment of condition laid down under Rule 5(2) of the Civil Servants (Appeal) Rules, 1974. It is also stated that the appellant was awarded the penalty in question strictly in accordance with rules.
3. Today nobody is present for the appellant despite notice. Nobody was present on his behalf even on the last dale. We shall not dismiss the appeal in default and proceed to decide it on merits.
4. We have heard the Special Prosecutor for the respondents and have also perused the record including the memo. of appeal and other documents filed by the appellant.
5. The departmental appeal was rejected on 26.05.2010 whereas the present appeal was filed on 26.07.2010. It was thus time barred. The appellant has submitted an application under Section 5 of the Limitation Act for condonation of delay. It is stated by him in this application that his lawyer could not come from D.I. Khan and that since the impugned order was void there was no prescribed period to challenge it. These are not sufficient grounds for condoning the delay. The appellant was allowed 30-days to file appeal in the Tribunal. It did not mean that he should have filed on the 30th day. He could file it earlier. If his lawyer could not come from D.I. Khan it was not the fault of the respondents. The impugned order was not void. It was passed in accordance with the rules. There is thus no ground for allowing the application which is dismissed and as a consequence of that the appeal is held to be time barred.
6. The appeal had been returned by the Registrar of the Tribunal on 26.07.2010 as there were certain deficiencies in it. He had given the appellant time to make up the deficiencies and to file the appeal on or before 10.08.2010. The appeal was not filed on or before 10.08.2010. It was filed on 13.08.2010. Rule 10(2) of the Service Tribunals (Procedure) Rules, 1974 clearly says that if the memo. of appeal is not submitted within the period prescribed by the Registrar the appeal shall stand dismissed. There is thus no other alternative for the Tribunal except to dismiss the appeal. The word used in the above rule is "shall". It is thus mandatory for the Tribunal to dismiss an appeal which is not filed in the time fixed by the Registrar under sub-rule (1) of Rule 10 of the Procedure Rules. 1974.
7. In the above circumstances the appeal is dismissed as time barred and under Rule 10(2) of the Service Tribunals (Procedure) Rules, 1974.
8. There shall be no order as to costs.
9. Parties shall be informed accordingly.