BRIG. (RETD.) ABDUR RASHID (MEMBER). -The appellant was served a show-cause notice dated 16th October, 1976. The allegations were :- "(i) Enjoy a persistent reputation for corruption and immorality.
(ii) Made money in the Arandu Road Project in Chitral and misused development funds as Political Agent, Mohmand Agency.
(i.e) Purchased over 100 Jaribs of land in Hassanzari Area at a very high price but got the transaction entered in Revenue Records for a much smaller amount to hide your ill-gotten money.
(iv) Set up a Siver-were-factory at Peshawar in the name of your were against loan in foreign exchange but installed local machines."
He replied to the show-cause notice on 19-10-1976. He was compulsorily retired from service under the Government Servants (Efficiency and Discipline) Rules, 1973 and a Gazette Notification dated 30th October, 1976 issued to this effect.
2. The appellant submitted a review petition within 30 days against his compulsory retirement which elicited no reply. A few reminders, too remained unanswered.
3. In pursuance of a Press Conference of the Chief Martial Law Administrator, the appellant submitted a petition to the Cabinet Secretariat on 4-9-1977 which was to be dealt with under M. L.
O.
23. As a consequence, on 5-2-1978, the appellant appeared before the Review Board constituted under the said M.L.O. According to the appellant, he never received any reply as to the fate of his interview by the Review Board despite a number of reminders. The appellant was, however, informed vide Establishment Division Memo. Dated 24th February, 1980 that his review petition under M.L.O. 23 had already been disposed of and that this information was communicated to him vide Memo. Dated 18th May, 1978 a copy of which was enclosed.
4. Having received the Establishment Division letter dated 24th February, 1980 quoted above, the appellant continued writing to the said Division instead of coming to the Tribunal: As a result of one of his petitions the appellant received the Establishment Division Memo No. 33/OF/E and D-Rev. G.
Dated 3rd April, 1980 which is reproduced ;- "MEMORANDUM Subject : Petition for Reinstatement With reference to his petition dated 13-1-1980, addressed to the Secretary, Establishment Division, Mr. Muhammad Tariq Khan is advised as follows ;-
(i) That his initial review petition, addressed to the then Prime Minister, copy of which the petitioner has attached with his letter dated 13-1-1980, is deemed to have been substituted by his subsequent review petition, under M.L.O. 23 which was duly heard by the Federal Review Board ;
(ii) After the disposal of his review petition under M.L.O. 23, by the orders of the President, no second review petition lies against those orders ; and Hence his petition dated June, 1978 even otherwise incomplete and with number of blank spaces, was filed."
5. After receipt of the above communication and taking it to be the rejection of his case under M.L.O. 23, the appellant filed his present appeal before the Federal Service Tribunal on 17-4-1980 under section 4 of the Service Tribunals Act 1973.
6. The learned counsel for the respondents raised the preliminary objection that the present appeal was hopelessly tine-barred and hence not competent.
7. The learned counsel for the appellant while arguing before us said that the Establishment Division Memo. Dated 18th of May, 1979 had never been received by the appellant and to this effect an affidavit had been filed by him. The fact that no counter affidavit .Had been filed by the respondents, it went to prove that the appellants was making correct statement argued by the learned counsel. We are not impressed by this line of reasoning In our opinion, it is not the presence of affidavits and counter-affidavits or their absence which alone goes to prove or disprove a certain proposition. There is more to it.
8. We have had the benefit of perusal, of the relevant record and find the Memo. Dated 18th May, 1978 on record which is reproduced: MEMORANDUM Subject :-Petitions for review under M. L. O. No. 23 With reference to his petition dated 4-9-1977 for review under Martial Law Order No. 23, Mr. Muhammad Tariq Khan is hereby informed that his petition was considered by the competent Authority but it was not found possible to accept the petition: (Sd.)
(FAZAL HUSSAIN), Deputy Secretary to the Government of Pakistan.
Mr. Muhammad Tariq Khan, OSD (Retd.), S&GAD, N.-W. F. P, 15-D, Old Jamrud Road, University Town, Peshawar.
Copy for information to :- 1.Joint Secretary (R), Establishment Division, Islamabad.
2. Secretary, Federal Review Board, Islamabad."
The above communication was sent at the correct address of the appellant. It was never received back undelivered. The presumption would, therefore, be that it was delivered. Not only that. The appellant, at a result of his review petition dated 4-9-1977 under M. L. O. 23, appeared before the Review Board on 5-2-1978. If he were vigilant, he would have been looking for the outcome of his case thereafter because the fat was already in the fire. The Nawa-i-Waqt of the 14th of May, 1978, which is on record, listed the appellant as one of the officials whose review petition under M. L. O. 23 had been rejected. The learned counsel for the appellant may be right in saying that the civil servants are, not opposed to read the newspaper ; to know about the outcome of their cases. But he cannot deny that in such cases the cardinal issue is one of vigilance so that one's rights are not trampled. In the instant case, appellant does not seem to have acted vigilantly. . In fact he appears to have slept over his rights Also, in our view, big - present appeal is an attempt at registering such objections or protests as would provide him' alibis after he had failed to seek remedy in time. We are therefore, in no doubt about the appellant's state of mind in trying to lean over backward in his attempt to catch up with the time which slipped by due to lack of vigilance on his part.
7. A glance at Establishment Division Memorandum dated the 3rd of April, 1980, reproduced at para. 4 above, would reveal that the said memorandum is with reference to a petition dated 13-1- 1980 which was in any case not competent. The appellant cannot, therefore, derive any benefit for limitation from the memorandum ibid. It is also surprising that when informed vide Establishment Division Memo. Dated 24-2-1980 about the rejection of his case (as far back as 18-5-1978) he should have persisted in more futile correspondence 'with the Establishment Division.
8. The present appeal having been hit by limitation is dismissed with no order as to costs.