P L D 1985 Quetta 74 (PLP)

MUFTAKHIRUDDIN, J. -This petition is on behalf of the Agricultural Development Bank of Pakistan through its Regional Manager at Quetta, the employer of the respondent No. 1 and calls in question the order of the Presiding Officer, Labour Court dated 30-4-1979 which order has been confirmed in appeal by the Labour Appellate Tribunal, Quetta.

2. Noor Muhammad, the respondent No. 1 was employed by the Agricultural Development Bank of Pakistan Limited in the year 1962 as an Investigator and subsequently promoted in the year 1973 as Investigation Officer and was posted at Usta Muhammad when on account of some allegations made by him against the staff working with him he incurred the displeasure of the superior officers and while he was on leave at Kotri he received a communication on 28-1-1975 from the Regional Manager, Agricultural Development Bank of Pakistan, Quetta informing him that his services had been terminated. The respondent No. 1 considering the termination of his service as mala fide and the result of the bitterness created against him by those against whom he had reported preferred a review petition on 17-2-1975 which was rejected' without hearing him and a decision was communicated to him again through a letter dated 7-8-1976 which was received by him at Kotri on 17-8-1976. He served the Regional Manager, Quetta with a grievance notice on 23-8-1976 but in spite of receipt of this notice no reply was given to him. An application under section 25-A of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the "I. R. O.") was, therefore, filed by him before the Presiding Officer, Labour Court at Hyderabad. On 15-4-1978 an application was moved by him that he may be permitted to withdraw the application and file the same the application was not maintainable as grievance notice had been served with a delay of about 1 J year, and that (6) under para. 13 of Agricultural Development Bank of Pakistan Staff Services Regulations , 1961 (hereinafter called the `Regulations'), the appellant organization was competent to terminate respondent's services without assigning any reason, therefore, and absolutely without abiding by the normal formalities of service of show-cause notice and enquiry etc. which fact was not appreciated by the Labour Court. However, he further stated that if such termination was to take place under para. 95 of the Regulations, then alone a show-cause notice and enquiry was essential."

5. The statutes of limitation are statutes of repose. There was a serious risk of injustice arising if the period of limitation should be strictly applied, hence the necessary for some provision to protect a bona fide applicant from the consequence of some mistake which had been made by his advisors in presenting his claim. With this object in view, some provision like section 14 of the Limitation Act were formulated and provided in the Limitation Act and it has to be applied liberally. Under section 5 of the Limitation Act two matters have got to be reconsidered (1) whether there was sufficient cause in not preferring the matter within time prescribed by law, and (2) whether there are circumstances which would justify the Court/tribunal in exercising the discretion that is granted under that section for excluding the time. Manother Lai, J. in Lai Bihari Lail and another v. Bani Madhava Khatri and others (1) of the report has expressed himself in these words : "In Brij lnder Singh v. Kansi Ram, 44 I A 218 : A I R 1917 P 156, their Lordships while considering the exercise of judicial discretion given by section 5, Limitation Act, referred with approval to some observations of a Full Bench of the Lahore High Court where they agree with the decision of the Allahbad High Court in the case of Balwant Singh v. Gumani Ram 5 All. 591 :1983 A W N 142. that the circumstances contemplated in section 14, Limitation Act should ordinarily constitute a sufficient cause within the meaning of section 5, Sir George Rankin in the case of Kuuwar Rajendra Bahadur Singh v. Rajeshwar Bali, 18 P L T 878 : A I R 193 P C 276, also observed that in applying section 5, the analogy o section 14, is an argument of considerable weight." Sufficient cause should receive a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the applicant.

6. There is a clear distinction between ignorance of law and mistake of law. Ignorance of law is the ignorance of a right of the party which law confess upon him. Mistake of law is mistake in establishing those rights, for instance going to one forum instead of another. The part knows his rights he wants to assert them and establish them but through mistake in understanding the provisions of law he goes to a wrong forum instead of going to the forum which the law has set up for the determination of his rights. In cases where there is a mistake of law, the Court have almost unanimously taken the view that the time taken by asserting the rights in a wrong Court or wrong forum should be excused and the Courts have largely been influenced by the principle underlying section 14 of the (1) A I R 1949 Pat. 293 Limitation Act. But ignorance of law is not only no excuse but not a sufficient cause for not asserting the rights in establishing the law. (See A I R 1954 Bom. 537). We may point out that section 14 speaks of due diligence and good faith of party and not of a counsel. Here we may quote with advantage the observations of Muhammad Shafi, J. made in the case of Punjab Province v. Nisar Ahmad (1) at page 812 of the report it is said : "A litigant in order to be diligent can do no better than to engage a senior counsel in his case. The lawyers, however, senior and eminent D they may be, are after all human and for that reason fallible. It is the possibility of an occasional error in the case of the litigants and their counsel that is guarded against by section 14 and other similar sections of the Limitation Act. It would be totally wrong to regard a mistake committed by an eminent lawyer; in instituting a suit in a wrong Court, as a matter for which a litigant should be punished". No general rule can be laid down and as such each case depends on its own facts and the true guide for a Court in the exercise of this discretion (of course judicially and not arbitrarily) is whether the applicant has acted with reasonable deligence. Even the Supreme Court in P L D 1983 S C 385 referred to by Mr. Munawar Mirza has not laid down a definite rule which may be acted as a general rule. Dr. Nasim Hassan Shah, J. who rendered the judgment in that case has expressed in these words : "This indeed is a dilemma to which there is no satisfactory answer. The law as it now stands is that the Courts can show indulgence and condone the delay where time has been lost by prosecating a remedy P before a wrong forum on account of bona fide mistake or error committed by a counsel, which a reasonable and prudent mail despite exercising due deligence and caution might have committed." The Supreme Court in Nazar Muhammad's case (2) found the mistaken advice of the counsel sufficient ground for condonation under section 5 of the Limitation Act. The Supreme Court has cited with approval the case of Kumar Rajendra Bahadur Singh v. Rai Kajeshwar Bali and others (3). The provisions contained in section 65-B, I. R. O. quoted above itself suggest that the provisions of section 25-A relating to filing of the application within the period is not to be strictly applied and in that behalf the discretion is given to the Labour Court to consider the cause in order to avoid injustice. The observations that word sufficient cause should receive a liberal construction so as to advance sufficient justice when no negligence or inaction nor want of bona fide is found has now become classic. In the instant case the present petitioners did not examine any witness who could say that the respondent Noor Muhammad did not act bona fide. The one produced was an officer who was not even associated with the trial of the matter at Hyderabad. We do not know even that any objection to the jurisdiction of the Presiding Officer, Hyderabad was raised and then the respondent (Moor Muhammad) made an application. for the return of the application for presentation at Quetta as the reply to the application filed at Hyderabad on behalf of the petitioners Bank has not been brought to our notice nor it forms part of the record of the Presiding Officer, Quetta. The statement of the respondent No. 1 remained unchal -(1) P L D 1960 (W. P.) Lab. 801?????? (2) P L D 1974 S C 22 ??????????? (3) AIR 1937 P C 274 lenged when he said that he believed the advice of the Advocate through whom he has filed the first application at Hyderabad and the moment he came to know that the Court at Hyderabad had no jurisdiction .he immediately made application for withdrawal which was permitted by bat Court thus it is not a case of no evidence and the finding given by that Presiding Officer, Labour Court; Quetta cannot be - said to be without authority. This finding of the respondent No. 3 remained unchallenged before the respondent No:

2. On the facts of the present case we hold that the respondent No. 1 in prosecuting his matter in the Court at Hyderabad committed a bona fide mistake of law or rule of procedure, which was bound to render the proceedings abortive. Hence, he would be entitled to exclude the time spent in the previous proceedings on the principle laid down in section 14 of the Limitation Act. The essential object of section 14 and the principle which underlies it is that the bar of limitation should not affect a person doing his best to get his case tried on merits but failing through the Court being unable to give him such a trial. The principle is clearly applicable not only to cases in which a man files but case in wrong Court, i.e. a Court having no jurisdiction to entertain it but also where he brings the suit in the wrong Court in consequence of bona fide mistake or defect of procedure. As pointed out above the circumstances contemplated in section 14 of the Limitation Act should ordinarily constitute a case within the meaning of section 5 of the Limitation Act. Mr. Munawar Mirza the learned counsel for the petitioners in furtherance of his submission has attempted to rely on the judgment of this Court in Abdul Karim Khan Alakzai's case (R. F. A. No. 4 of 1982). We have gone through this judgment but found nothing which may help the learned counsel in the cited case. My learned brother Muhammad Jaffar Naeem, J. who rendered the judgment on behalf of the Division Bench has come to the conclusion that the element of good faith was absolutely missing in that case and, therefore, the time spent in the case in the Court of Additional District Judge cannot be excluded and has observed that : "Even if time spent in the Court of Additional District Judge is excluded that would be no explanation for the time spent in the High Court from July, 1980 to October, 1982. In whatever manner the case is examined and giving all possible latitude to the appellant the result would be the same. The appeal is time-barred." We have considered ourselves and feel inclined to agree with the Presiding Officer (respondent No. 3) that the respondent (Noor Muhammad) acted bona fide in accepting/relying the advice of the counsel and thereafter when he took back the matter from Hyderabad and filed it at Ouetta the 6/7 days that elapsed between is not a period which can be called unreasonable or which would show that there was any want of diligence on the part of the respondent No.

1. We have no hesitation m holding that the order of the respondent No. 3 and its confirmation by the Appellate Tribunal is on facts a proper one to pass under section 65-B of the I. R. O., 1969.

7. Mr. Munawar Mirza in support of his point (c) referred in para. 3 of this judgment has relied on the judgment reported in P L D 1973 Kar. I but the facts of that case were different. In Karachi case the temporary assignment was brought to an end by the termination order and the worker had become surplus; and the grievance relating to his termination was not brought to the notice of the employee within the period prescribed under section 25-A, I. R. O. But in the instant case Noor Muhammad, respondent No. I filed a review petition on 17-2-1975 which was permissible under Efficiency and Discipline Regulation 95 referred above. The review petition too was not decided in his presence but the rejection was communicated on 17-8-1976 and this rejection afforded him a cause of action. The grievance notice was, therefore, addressed on 23-8-1976 and this was in keeping with the policy of law laid down in section 25-A, I. R. O., 1969 and thereafter the application under section 25-A,

1. R. O. was filed at Hyderabad on 9-9-1974.

8. There remains to be considered the contention of the learned counsel for the petitioner that termination of service of respondent No. I was under rule 13 of the Regulation. Mr. Muhammad Moquim Ansari the learned counsel for the respondent No. 1 on the other hand has repeated the stand which his client had urged before the respondents Nos. 2 and

3. The case of the respondent No. I was that his work was appreciated and on his report some employees were proceeded against. Mr. Hakeemuddin who appeared before the respondent No. 3 has conceded this and admitted : And the services of the respondent No. I were terminated because (to use the word of Hakeemuddin recorded before the respondent No. 3). This was in fact the reason for the termination of service and was being refuted by Noor Muhammad. The allegations levelled by the Bank, therefore, definitely come within the ambit of "Misconduct" and necessitate an enquiry as envisages by the Regulation referred to by the respondents Nos. 2 and 3 in their judgments. And in such circumstances rule 13 of the Regulation would not be pressed into service and the rule 95 of the Service Regulation of the petitioners was applicable and the charge of misconduct was to be the subject-matter of an enquiry and the employee was entitled to an opportunity to meet the allegations. The judgment of the Lahore High Court in Muhammad Ashraf Pervaiz v. A. D. B. (1) is on all fours to the facts of the instant case wherein it has been pointed out by Mushtaq Hussain, J. (as he then was) that where an employee of the Agricultural Development Bank of Pakistan is being dealt with for misconduct and he is sought to be removed the procedure laid down in Regulation 95 is to be followed. This Regulation requires holding of proper enquiry and show-cause notice which 1 was the only thing that could be lawfully done as the respondent Noor Muhammad was being accused of being guilty of misconduct. The provisions of Regulation 95 and the Security granted by it cannot be allowed to be set at naught by circumventing it and proceeding under Regulation 13.?????? (1) PLD 1973 Lah 425

9. In the instant case it was found that the employee had a right told be heard in reply to the allegations which have been levelled. against him which right had been denied and this being a right guaranteed to the' respondent Noor Muhammad the application under section 25-A, I. R O., 1969 made by him before the Presiding Officer Labour Court, Quetta was maintainable. It is by now well-settled that if the Court has jurisdiction over the class of cases to which the proceedings belong and acquires jurisdiction to determine the sufficiency of the pleadings or evidence and also to decide whether or not the plaintiff or the applicant before him i entitled to the relief sought, leaving the losing party the right to have such judgment reviewed by some ordinary process, as by appeal. The respondents Nos. 2 and 3 had jurisdiction to entertain the application and the appeal and there was material before them for deciding the present case. Conceding for the sake of argument only that the decision is erroneous it does not furnish a ground for our interference in the constitutional jurisdiction. Want of jurisdiction is not the same thing as illegal exercise of jurisdiction and as pointed out in P L D 1970 Dacca 743 the patent want of jurisdiction is not to be confused with the illegal decision. The scope of interference in the constitutional jurisdiction has been pointed out by us in Quetta Club's case (1). We would like to reiterate once again that an inferior Tribunal vested with powers to exercise judicial or quasi-judicial functions might have come to an erroneous conclusion, but where the conclusion is in respect of a matter which lies entirely within the jurisdiction of the Tribunal and where the record of the case does not disclose any error apparent on the face of the proceedings or any irregularity in the procedure adopted by the Tribunal which goes contrary to the principles of justice, there are absolutely no grounds which would justify a superior Court in issuing a writ or direction for the removal of an order of proceedings of such Tribunal and there is no power to quash a decision of an inferior Tribunal on the mere ground that such decision is erroneous anti it must be shown before such a writ is issued that the authority which passed the order acted without jurisdiction or in excess of it or in violation of the principles of natural justice. Want of jurisdiction may arise from the nature of the subject-matter, so that the inferior Court might not have authority to enter on the enquiry. It may also arise from the absence of some essential preliminary or upon the existence of some particular fact collatoral to the actual matter which the Court has to try and which are condition precedent to the assumption of jurisdiction by it. But once it is held that the Court has jurisdiction but while exercising it, it made a mistake, the wrong party can only take the course prescribed by law for setting matters right inasmuch as a Court has jurisdiction to decide rightly as well as wrongly. In the instant case the Presiding officer had the jurisdiction to entertain the application under section 25-A,

1. R. O., 196 as the respondent No. 1 was held to be a worker. The appellate Tribunal has been constituted in terms of section 37, (. R. O. and as such the appellate Tribunal like a Court of appeal has not only the jurisdiction t determine the soundness of the decision of the Presiding officer, as a Court of error, it has also jurisdiction to determine any point raised before it in the nature of the preliminary issues by the parties. Here in the instant ca there is no question of assumption of excessive jurisdiction or refusal to exercise jurisdiction or illegality or irregularity in the procedure or in breach of principle of natural justice. We are clear in our minds that the constitutional jurisdiction conferred on us under Article 9 of the Provisional Constitution Order or for that matter under Article 199 of the Constitution does not permit us to sit as a Court of further appeal on facts nor we can (1) P L D 1983 Quetta 46 assume the appellate power to correct every mistake of law. And no writ/ direction can be issued as a cloak of an appeal in disguise. It does not lie in order to bring an order or decision for rehearing of the issue raised in the proceedings. The supervisory jurisdiction is to be exercised with restraint in aid of justice. For the above reasons the orders of the respondents Nos. 2 and 3 are sustained and the petition is dismissed with costs. M. z. M.?????????? Petition dismissed.