C. P. NO. D-251 / 2011
Present:
Mr. Justice S. Hassan Azhar Rizvi.
Mr. Justice Muhammad Junaid Ghaffar.
ANWARUDDIN JAMALI ………………..………………….PETITIONER
VERSUS
PROVINCE OF SINDH & OTHERS ……………………….RESPONDENTS
Date of hearing: 02.04.2014.
Petitioner: Through Syed Muhammad Saulat Rizvi, Advocate.
Respondent No. 1: Through Mr. Allah Bachayo Soomro, Additional A.G.
Respondents No. 2&3: Through Mr. Ansari Abdul Latif, Advocate.
J U D G M E N T
Muhammad Junaid Ghaffar, J:- Through instant petition, the petitioner has challenged the order of dismissal from service dated 08.09.1998 passed by respondent No.2 and has further prayed that on setting aside the said dismissal order, the petitioner be reinstated in service with all back benefits and thereafter may be retired alongwith all such benefits.
2. Briefly, as per memo of petition, the facts are that the petitioner was appointed as Junior Clerk in the year 1963 and was served with a show cause notice dated 26.12.1995 which was accordingly replied by the petitioner. It is further stated that owing to the political pressure, it was not possible for the petitioner to continue with its employment and he applied for a long leave which according to the petitioner was initially approved but was cancelled subsequently without any information to the petitioner. Subsequently, it came to the knowledge of the petitioner that a charge sheet dated 03.07.1997 had been issued and thereafter, the petitioner was suspended on 26.07.1997 and an enquiry was ordered to be conducted for the alleged unauthorized absence and misappropriation of funds. It is further averred that the petitioner replied to the said charge sheet comprehensively, however after a lapse of 11 months an additional charge sheet dated 02.06.1998 was also issued to the petitioner which was also replied accordingly. Thereafter, a final show cause notice was issued and the petitioner was dismissed from service vide impugned order dated 08.09.1998 and the same was challenged in Departmental Appeal by the petitioner on 06.11.1998. It is the case of the petitioner that no order was passed on his Departmental Appeal whereafter, somewhere in 2008 he approached the concerned Provincial Minister verbally and who was kind enough to pass an order for holding a fresh enquiry through Special Secretary Education. In the fresh enquiry also it was observed by the Special Secretary Education that the case of petitioner did not merit any consideration as being time barred. Thereafter, the petitioner has challenged the impugned order dated 08.09.1998 through instant petition.
3. Learned Counsel appearing for the petitioner contended that the petitioner was removed from service unlawfully and the petitioner would be satisfied if the order of dismissal from service is converted into an order for compulsory retirement with all benefits. In support of his contentions, the learned counsel for the petitioner relied upon the cases reported as House Building Finance Corporation and another v. Shahid Hassan Khan (2004 SCMR 465), Shibli Farooqui v. Federation of Pakistan and others (2009 PLC (C.S.) 616), Hafiz Abdul Khalique Soomro v. Government of Sindh & others (SBLR 2007 Sindh 1293) and Farzand Raza Naqvi and 5 others v. Muhammad Din through Legal Heirs and others (2004 SCMR 400).
4. Conversely, the learned Counsel appearing on behalf of respondents No.2 and 3 has raised a preliminary objection with regard to delay and latches on the part of the petitioner in filing the instant petition after a lapse of 13 years with no explanation in support of such delay. Learned Counsel also contended that respondent No.2 is neither a statutory body nor an authority working under the Government of Sindh and is merely a Society registered under the Societies Act, 1860, therefore, the instant petition is not maintainable and liable to be dismissed.
5. The learned A.A.G. has adopted the arguments so raised by learned Counsel for respondents No.2 and 3.
6. We have heard both the learned Counsel and have perused the entire record and the case law relied upon by the parties.
7. At the outset, we would first like to address the objection raised by learned counsel for respondents No.2 and 3 regarding latches on the part of the petitioner. It is an admitted position that the order impugned in the instant petition is dated 08.09.1998 and no plausible explanation or reasoning has been stated by the petitioner that as to why the instant petition was filed after a lapse of almost 13 years and that as to what prevented the petitioner from invoking the writ jurisdiction of this Court within a reasonable time. The learned Counsel for the petitioner, though not convincingly, has relied upon the Departmental Appeal preferred by the petitioner and so also the receipts of registered A.D. through which purportedly, the Departmental Appeal was preferred by the petitioner. On careful examination of the memo of Departmental Appeal, it transpires that no date has been mentioned in the memo of appeal that as to when it was preferred by the petitioner. Even otherwise, the learned Counsel for the petitioner could not satisfy, that as to what other subsequent measures were taken by the petitioner as a follow up to the said Departmental Appeal. It is also noted with concern that even the petitioner has not brought on record the representation purportedly made to the concerned Minister for carrying out a second enquiry. The petitioner has even not been able to satisfy this Court that even after an enquiry conducted by the Special Secretary Education on 05.05.2008, what prevented the petitioner from challenging the said enquiry or to seek any further redressal of its grievance in the year 2008. It is a settled proposition that a person who seeks equity must be vigilant and not indolent and further the Courts donot come to the aid of a party who had not been diligent, vigilant and fails to act in a prudent manner. Though there is no cavil to the proposition that law of limitation would not apply while invoking the Constitutional jurisdiction of this Court under Article 199, however this does not entitle an aggrieved person to sit over its rights without explaining such laxity on its part and then come to the Court and seek enforcement of its fundamental rights. In the instant matter and on the peculiar facts as stated in the memo of petition, the petitioner has miserably failed to explain any plausible reason for delay of 13 years in filing the instant petition. Hence the instant petition suffers from delay and latches on the part of the petitioner.
8. In view of hereinabove, we are of the opinion that the petitioner has failed to make out a case of any indulgence and accordingly we had dismissed the instant petition by means of a short order dated 02.04.2014 and the above are the reasons in support of such short order. Since we have dismissed the instant petition on the ground of latches, therefore, need not answer the other contentions so raised by both the learned Counsel.
Hyderabad.
Dated: 03.04.2014. J U D G E
J U D G E
Tufail