1. ' KHAWAJA GHULAM QADIR (MEMBER).-This is a service appeal under section 4 of the Service Tribunal Act filed by Munir Koosar appellant whereby the impugned order dated 3rd April, 1974 issued by the respondent has been assailed as illegal and unlawful.
2. ' The brief facts which culminated in this appeal, as put by the appellant, are that the appellant was appointed as Forestor in the Forest Department by the respondent vide his order dated 5th March, 073 wherein it was stipulated that the appointment shall be temporary one. The appellant took over as Forester on 26th March, 1973 and was posted at Gulpur Check post on 17th October, 1973. On 19th November, 1977 the appellant seized a Truck No, 3416-AJK containing 56 sleepers of illicit timber at the Check Post and took the same to Range Officer Sahnsa for further proper action.
3. According to the appellant the Range Officer Instead of taking any action in the matter rebuked the appellant as to why he seized the timber of a Superintendent Police and released the timber then and there. This action of the appellant annoyed the Range Officer as well as the Police People.
4. ' On 'the night between 5th and 6th January, 1974 another Truck No, $52132-LED carrying 78 tins of Resin was siezed by the appellant and taken to Range Officer, Sahnsa alougwith Zaheer-ud-Din Forest Guard and one Bashir Munshi of a Road Side Depot. The Truck, however, failed near a Depot on Sehr Mandi Road while on the way to Sahnsa and consequently the resin was not unloaded there near the Depot and the matter was reported immediately in writing to Range Officer Sahnsa and was even verbally reported to the D.F.O. Concerned. As no action was being taken by the Officers in the matter the appellant submitted a detailed report to the D.F.O., Mirpur and the Conservator Forests on 14th January, 1974 and consequently Zaheer-ud-Din Forest Guard was suspended on 16th January, 1974 for being responsible for the theft of 78 tins of resin from the Depot. Instead of getting any appreciation from the officers for diligent and honest performance of his duty the appellant was placed under suspension on 27th January, 1974 and a case under section 379, Penal Code was registered, with the Kotli Police on 31st January, 1974 with an allegation that the appellant dishonestly allowed the Truck containing the stolen resin to cross the Forest barrier.
5. ' The respondent ordered a joint inquiry by D. F.
6. 0., Mirpur and Kotli against the appellant whereupon a notice calling an explanation was served upon him on 11th February, 1974, directing the appellant to submit his reply on the same day.
7. Thereafter a show-cause notice was issued to the appellant on 24th February, 1974 and on 3rd April, 1974 the services of the appellant were terminated. The appellant submitted an appeal to the Chief Conservator of Forests on 11th May, 1974 calling into question the impugned order of termination of service but the appeal was dismissed on 29th August, 1976. A second appeal was sumbitted to the Government through Secretary Forests on 22nd November, 1976 decision whereof dismissing the appeal as time barred was communicated to the appellant in the 1st week of May 1978. Having failed in his attempts to get a departmental redress the appellant has now knocked the door of Service Tribunal for redress of his grievance calling into question the impugned order on the grounds that :-
(1) The impugned order is mala fide and unjust
(2) Zaheer-ud-Din Forest Guard was responsible for the theft of resin from Depot who also was dismissed which fact supported the allegation levelled against him by the appellant.
(3) The appellant was not associated with the inquiry jointly held by the two D. F. Os, inasmuch as neither an opportunity to cross-examine the witnesses appearing against him was allowed nor he was afforded any chance to produce evidence in his defence.
(4) The statement of Anayat Hussain Watcher was obtained under duress.
(5) The services of appellant could not be terminated retrospectively from the date of his suspension.
(6) The extreme penalty imposed, was excessive and unwarranted.
8. ' In the end the appellant prayed that setting aside the impugned order of termination of his services he may be reinstated as Forester w. e. f. 27th January, 1974, the date of his suspension.
9. ' The appellant filed an application for extension of limitation also alongwith the memorandum of appeal praying therein that the result of his appeal became known to him after about 4 years of the impugned order whereafter it took him sufficient time to collect the copies of various relevant orders. The appellant also fell ill and remained confined to bed for a number of days during those days. The appellant was also mentally upset by the result of his appeal after such a long delay and it took him quite some time to recompose and to come to Muzaffarabad from Sargodha for taking legal steps. As such the delay that occurred may deal with leniently and condoned for the sake of justice.
10. ' We have heard the counsel for the parties at length and have also gone through the relevant record of appeal. A preliminary law-point is involved which needs to be disposed of in the first instance as the fate of the appeal would to a large extent depend upon the decision of this important legal question. The learned counsel for the appellant has strenuously argued that though the appeal suffers from considerable delay but the Tribunal can easily condone the delay under section 5 of the Limitation Act, as applicable to service appeals for the appellant had sufficient cause for not filing his appeal within the prescribed time limit as he honestly entertained the belief that a second appeal lay to the Government and thus he acted in good faith in prosecuting the same before the Government. Moreover, after the decision of his second appeal he got disappointed and was mentally upset and it took him quite sometime to rehabilitate and take legal steps by filing an appeal before the Service Tribunal.
11. ' We have given or serious thought to the argument advanced by the learned counsel for the appellant but regret not to see eye to eye with him in the matter of condoning the delay involved in the case.
12. ' It is true that section 5 of the Limitation Act is applicable to service appeals by virtue of section 9 of the Service Tribunal Act, 1975 but the benefit of the provisions of this section can be availed of only if the matter strictly falls within the for corners of section 5 of the Limitation Act and the appellant proved that he had sufficient cause which prevented him from filing appeal within the prescribed limitation. Section 5 of the Limitation Act is reproduced below for the sake of reference :- ' Section 5: ' Any appeal or application for a revision or a review of judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment for the time being in force may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period.
13. ' As is evident by the provisions of section 5 stated above the appellant must satisfy the Tribunal that he had sufficient cause in not preferring the appeal within the fixed time. The words "sufficient cause" should receive a liberal construction so as to advance the cause of substantial justice and it is discretionary with the Court to determine whether in a particular cause the "sufficient cause" existed or not but this discretion is to be exercised judicially and not arbitrarily or whimsically.
14. Whether particular circumstances in a given case constitute sufficient cause or not would depend on the discretion of the Court applied judiciously.
15. ' Now, turning to the facts of the appeal in hand we have to decide whether the circumstances which prevented the appellant from filing the appeal within the prescribed period make a sufficient cause or not as envisaged by section 5 of the Limitation Act. The impugned order was passed on 3rd April 1974. Under rules the appellant had a right of appeal which he exercised by filing an appeal to the Chief Conservator of Forests on 11th May, 1974 which was finally dismissed on 29th August, 1976. On this date the Service Tribunal Act, 1975 was in force and the appellant was bound to file an appeal against this final appellate orders within thirty days of the communication of this final order to him. The Service Tribunal was established in April, 1975 and the appellant was supposed to know the law and to file- his appeal from the appellate final order of the departmental authority before the Service Tribunal within fixed limitation but the appellant went up in second appeal before the Government contrary to express provisions of law at his own risk. The appellant has not alleged in his application for condonation that he was misled by the legal advice of any counsel which shows that he acted on his own and chose a wrong course which face reflects that the appellant did not act with due care and attention or bona fidley. The time which he carelessly spent in waiting the decision of his second departmental appeal cannot be condoned at all because no stretch of argument would justify such action as "sufficient cause".
16. ' The facts that the result of his appeal dismayed him and he got upset and that it took him considerable time to collect the copies of relevant orders in no way help the appellant in seeking the Tribunal to exercise discretion in favour of appellant in condoning the delay caused by ill conceived course adopted by him in filing his second appeal.
17. ' As discussed above we have come to a clear and definite conclusion that the appellant had no sufficient cause to justify the condonation of delay and as such the preliminary point of limitation is found against him. As this legal point is sufficient to dispose of the appeal finally so we do not feel advised to dwell upon the facts and merits of the appeal. Hence the appeal is dismissed with no order as to costs.