2018 PLP 296 (PLC)

SHAHID MUBEEN, J.

By virtue of instant writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 the petitioner has challenged the vires of judgment dated 17.03.2016 passed by the learned Presiding Officer, Punjab Labour Court No.1, Lahore/respondent No.2 and the judgment dated 03.05.2016 passed by the learned Punjab Labour Appellate Tribunal, Lahore/respondent No.1.

2. Briefly the facts of this case as stated in the petition are that the petitioner was appointed as Assistant Lineman in BPS-5 on 08.11.2003 by the Lahore Electric Supply Company Limited/respondent No.3 and after completion of his probation period his services were confirmed by respondent No.3. He applied for earned leave for a period of three months commencing from 22-10-2010. Respondent No.6 approved the earned leave and allowed the petitioner to avail the same but the said application was not forwarded to respondent No.3 by respondent No.6. Respondent No.5 initiated disciplinary proceedings against the petitioner under the provisions of Pakistan WAPDA Employees (E&D) Rules, 1978. Respondent No.5 vide order dated 30.12.2011 removed the petitioner from service with effect from 22.10.2010. Feeling aggrieved of the said order, the petitioner preferred his departmental appeal before respondent No.4 who vide order dated 30.04.2014 dismissed the petitioner's appeal being time barred. The petitioner being a worker served grievance notice to respondents and after expiry of statutory period he filed a grievance petition No.148 of 2014 which was dismissed by the learned Presiding Officer, Punjab Labour Court No.1, Lahore vide impugned judgment dated 17.03.2016 on the point of limitation. Not contended with the said judgment, the petitioner preferred an appeal before the learned Labour Appellate Tribunal which also met with the same fate and was dismissed vide impugned judgment dated 03.05.2016. Hence, this petition.

3. Learned counsel for petitioner submits that judgments of the learned Labour Court as well as learned Labour Appellate Tribunal are not sustainable in the eye of law; that his departmental appeal was within time as removal order dated 22.10.2010 was received by the petitioner on 04.01.2013 and he preferred appeal on 21.01.2013, therefore, his departmental appeal was within time; and that in evidence the petitioner filed an affidavit with respect to receiving of order dated 22.10.2010 that the same was delivered to him on 04.01.2013 and this portion of the affidavit has not been cross-examined by the other side, therefore, the same shall be deemed to be admitted by the other side.

4. On the other hand learned counsel for respondents Nos.3 to 6 has supported the impugned judgments.

5. Arguments heard. Record perused.

6. I have gone through the record with the able assistance of learned counsel for the parties. In the grievance petition it is nowhere stated by the petitioner that he received order dated 22.10.2010 on 04.01.2013 and then he preferred an appeal under the rules on 21.01.2013. It is well established principle of law that any evidence beyond pleadings is to be ignored. No evidence can be led contrary to the pleadings and the party cannot be allowed to prove his case not pleaded. Even law does not allow to party to prove his case in evidence against provision of Order VI, Rule 1, C.P.C., wherein no party is allowed to lead his evidence which was not taken in the pleadings and even it cannot be considered as evidence in the case. Reliance is placed on case laws reported as "Abdul Haque and others v. Shaukat Ali and 2 others" (2003 SCMR 74), "Muhammad Wali Khan and another v. Gul Sarwar Khan and another" (PLD 2010 SC 965), "Combined Investment (Pvt.) Ltd. v. Wali Bhai and others" (PLD 2016 SC 730), "Muhammad Iqbal v. Mehboob Alam" (2015 SCMR 21), "Dr. Ubaidur Raza Khan v. Mrs. Saghera Bang and another" (1994 CLC 1302), "Mst. Balqees Begum and 11 others v. Mehfooz Hussain and 9 others" (PLD 1995 Lahore 113), "Muhammad Yousaf and others v. Muhammad Younas and others" (1995 CLC 1780) and "Rana Abdul Rasheed v. Iqbal Hussain" (2008 CLC 01).

7. As the fact stated in the affidavit that petitioner received order dated 22.10.2010 on 04.01.2013 and preferred an appeal on 21.01.2013 has not been pleaded in grievance petition, therefore, above noted principle is fully attracted. Having held so, it has to be seen whether principle stated in above noted judgments as well as Order VI, Rule 1 C.P.C. could be applied in labour cases.

8. Provision of Civil Procedure Code was not made applicable to the proceeding before the Labour Court, however, general principles were applicable if they were not repugnant to the provision of labour laws and principle of natural justice. Though provisions of Civil Procedure Code are not applicable under the labour laws, still labour court is a civil court for the purposes of adjudication under section 45 of the Punjab Industrial Relations Act, 2010. In case titled "The Regional General Manager, Allied Bank of Pakistan Ltd. and 2 others v. Muhammad Aamer Raza and others" (2005 PLC 147), it has been held by learned Division Bench of this Court that labour court was deemed to be Civil Court with all the power of Civil Court. Filing of lis before a Labour Court was not merely a matter of procedure, it was referable and included power of a Labour Court to take cognizance of a lis brought before it. Nature of jurisdiction of Labour Court was civil and in absence of any specific provision in Industrial Relations Ordinance, 2002 section 20 of Civil Procedure Code, 1908 would apply to determine territorial jurisdiction of Labour Court. Further reliance is placed on case law titled "Independent Newspaper Corporation (Private) Ltd. v. Punjab Labour Appellate Tribunal, Lahore and others" (2013 SCMR 190). Relevant portion of the judgment is reproduced herein below:- "Viewing from another angle, the grievance petitions were barred by law enunciated in Order XXIII of the Civil Procedure Code wherein it has clearly been mentioned that in case of withdrawal of suit or abandonment of part of a claim without the permission referred to in sub-rule (2) he shall be precluded from instituting any fresh suit in respect of such subject matter or such part of the claim. The respondents had withdrawn their claims from the court on account of having been satisfied themselves on receipt of their dues in full and final settlement of their claims."

9. It is well entrenched principle of law that when a department appeal is barred by time as has been held by the learned Labour Court as well as learned Labour Appellate Tribunal then the appeal before Service Tribunal will be deemed to be barred by time. Reliance is placed on case law reported as "Raja Khan v. Manager (Operation) Faisalabad Electric Supply Company (WAPDA) and others" (2011 SCMR 676) and "Sajjad Hussain v. Secretary, Ministry of Railways, Islamabad and others" (2012 SCMR 195). Relevant portion of the judgment is reproduced herein below: "

4. We have taken into consideration arguments advanced by the learned counsel for the appellant and perused the record. From perusal of the record it appears that the departmental appeal of the appellant was barred by time, even if the appeal filed before the Service Tribunal was in time, no relief can be granted to him.If any case-law is required one can see the cases of Muhammad Aslam v. WAPDA and others (2007 SCMR 513) and Zia ur Rehman v. Divisional Superintendent Postal Services, Abbottabad and others (2009 SCMR 1121)."

10. Learned counsel for the petitioner has failed to point out any illegality and jurisdictional defect in the impugned judgments of the learned Labour Court as well as learned Labour Appellate Tribunal.

11. Sequel to the above, this writ petition being devoid of any force is dismissed and the judgments dated 17.03.2016 and 03.05.2016 passed by the learned Labour Court as well as learned Labour Appellate Tribunal are upheld. No order as to costs. HBT/S-22/L Petition dismissed.