SHAH ABDUR RASHID (CHAIRMAN).-- The appellant, Nasir Hussain Shamsi, was serving as Income- tax Officer. Karachi, when he, alongwith numerous other civil servants, was retired from service by notification, dated 13th March, 1972 under M.L.R.
114. The appellant filed a petition under M.L.R. 116 on 18th March, 1972, but no decision thereon was communicated to him. Thereafter the appellant left for U.S.A. While the appellant was in U.S.A., M.L.O. 23 was promulgated and he filed a petition on 9th December, 1977. A Review Board had been constituted to consider the petitions of such like nature, but the appellant being out of country, could not appear before it. The decision of the Review Board was never communicated to the appellant.
2. It is stated in the appeal that when no decision was received by him under M.L.O. 23, he sent an appeal to this Tribunal from U.S.A. For adjudication. He, however, found that the said appeal was not traceable in the office of the .Tribunal and he, on coming to Pakistan, filed -the present appeal on 29-11-1983, challenging the order under M.L.R.
114. Though no order was received by him which had been made under M.L.O. 23, nevertheless, the appellant assuming that his petition had been rejected, has challenged the rejection thereof also.
3. The learned counsel for respondent has urged that this Tribunal has no jurisdiction to entertain the appeal on the ground that:
(i) the appeal is hopelessly barred by time and no sufficient cause has been shown for condoning the delay;
(ii) the appellant's petition under M.L.O. 23 having been rejected, he cannot approach the Tribunal, as only one of the two forums was available to him.
4. The appellant has filed a petition for condonation of delay under section 5 of the Limitation Act, 1908, wherein he has stated that the appellant was-out of country in U.S.A., and that when he learnt that the Service Tribunal was accepting the appeals against orders under M.L.R. 114, he sent an appeal by air mail, challenging the order of his retirement. He has added that he had no means to learn that the appeal sent by him was not received in the office of the Tribunal. In these circumstances it has been prayed that the delay may be condoned.
5. The appellant was retired from service under M.L.R. 114 in 1972, and he made the petition for review under M.L.R. 116 on 18th March, 1972. He having not received any reply should have come to the Tribunal within 120 days of the filing of his petition. This was not done which has made the present appeal hopelessly barred by time. Again, the appellant filed petition under M.L.O. 23 on 9th December 1977. As he did not receive any communication rejecting his petition he should have come to the Tribunal within 120 days from 9-12-1977, in case this Tribunal has jurisdiction to entertain appeals when the provisions of M.L.O. 23 have been invoked.
6. The appellant's main contention is that when he came to know that the Tribunal was accepting the appeals against orders under M.L.R. 114, he sent an appeal from U.S.A. The date of sending the appeal has not been mentioned in the memo of the present appeal, nor in the application for condonation of delay, nor in the affidavit. When question, the learned counsel for the appellant stated that the question of jurisdiction of the Federal Service Tribunal came to the knowledge of the appellant when the case of M. Yamin Qureshi v. Islamic Republic of Pakistan PLD 1980 SC 22 was decided and reported in January, 1980. It was further stated that the appeal was not sent through registered post, but was despatched by ordinary, post. We are unable to accept this stand, inasmuch as, no prudent person would have sent such a document affecting his valuable rights without obtaining evidence of its despatch by sending through registered post.
7. It is a settled principle of law of limitation that every day of delay has to be explained by the person who comes to any forum after the expiry of the period of limitation. In the present case, the appellant could not even disclose the date on which his appeal was, allegedly, sent from U.S.A. The mere absence of the appellant from Pakistan is not sufficient cause for enlarging the time.
8, In view of the above facts, we are of the opinion that this appeal is barred by time. The other preliminary objections raised by the learned counsel for respondent need not be adjudicated upon, as the appeal is failing on the question of limitation, and is dismissed as such.
A. E.