2001 PLC614 (PLP)

2. Petitioner's counsel submits that under section 5 of Limitation Act, if the petitioner was misled the practise or misread the judgment of Court the delay could be condoned for, in this case on account of the law laid down by superior Courts in the following judgments: Fazal Karim and another v. Ghulam Jillani and another 1975 SCMR 452; Akram Raz and another v. dSher Jamal 1980 SCMR 375; Muhammad Ramzan Bakhsh v. Ahmed 1991 SCMR 716; PLD 1962 Karachi 344; PLD 1957 Kar. 843; PLD 1987 Kar. 575; 1996 CLC 1184; PLD 1989 Lah. 64; PLD 1993 Lah.

141. He further submits that petitioner has raised preliminary objection before the Punjab Labour Court as well as before the Punjab Appellate Tribunal qua the maintainability of petition of respondent No.1 who did not advert to the preliminary objections raised by the petitioner before‑ Courts below; that preliminary objection raised by petitioner before the Courts that petition filed by respondent No.1 was time‑barred, that retired employee is not workman by virtue of section 2(28) of I.R.O., 1969 and the law laid down by the superior Courts in the following judgments:‑‑ 1998 PLC 1; 1996 PLC 702 and 1998 SCMR

172. He further submits that respondents did not claim right on the basis of any law. or settlement, therefore, both the Courts below erred in law to accept the claim of respondent No. 1; that petitioner if not authorised to file appeal before the Appellate Court by virtue of attorney filed alongwith appeal even then appeal is competent as Punjab Labour Court has passed effective order against the Bank as the principle laid down in H.M. Saya & Co., Karachi v. Wazir Ali Industries PLD 1969 SC 45.

3. Learned counsel for respondents submits and relied upon para. 5 of the impugned judgement of the 1st Appellate Court that the appeal was rightly dismissed as being time‑barred as the principle laid down in 1997 SCMR 860; that appeal was filed by incompetent person; he adopted the reasoning of 1st Appellate Court in p4ra. 4 of the impugned judgment. In rebuttal, petitioner's counsel submits that basically appeal was dismissed by Punjab Appellate Tribunal as time‑barred without adverting to the principle laid down in Muhammad Ratnzan v. Ahmad Bakhsh and another 1991 SCMR 716.

4. I have given my anxious consideration to the contentions of learned counsel for the parties and perused the record. I would like to decide whether 1st Appellate Court was justified to dismiss the appeal as time‑barred. After addition of Article 2A in the Constitution the Hon'ble Supreme Court has insisted that cases must be decided on merits instead of technicalities as the principle laid down in Sher Muhammad's case PLD 1989 SC

532. The Hon'ble Supreme Court also laid down principle in Khuda Yar's case PLD 1975 SC 678, that technicalities should not defeat the ends of justice and the relevant observation is as under: "Mere technicalities unless over the insurmountable hurdle should not be allowed to defeat the ends of justice." The Hon'ble Supreme Court subsequently also approved the dictum laid down in Sher Muhammad's case (supra) in Mst. Sardaran's case 1993 SCMR 363 and followed the same principle, therefore, 1st Appellate Court was erred in law to dismiss the appeal being time‑barred as the 1st Appellate Court did not advert to the recent trend of Hon'ble Supreme Court in the aforesaid judgment and observed as under: "These two provisions read together lead to the irreparable conclusion that mere technicalities unless offering an ' insurmountable hurdle should be led to defeat the ends of justice." The Hon'ble Supreme Court has laid down a principle after addition of Article 2A of Constitution that cases must be decided on merits instead of technicalities in Sher Muhammad's case PLD 1989 SC

532. The relevant observation is as follows:‑‑ "A party should not be denied a relief on account of technicalities in the procedural law, as the same is formed for the purpose of regulating the legal proceedings, they are extended and designed to foster the cause of justice rather than to defeat it." Subsequently the aforesaid judgment was also considered in Mst. Sardaran's case 1993 SCMR 363 and followed the same principle. The other contention of respondents' counsel that appeal was filed by incompetent person has also no force as the principle laid down by this Court in Messrs Adam Gee Construction Companies' case 1999 MLD 2202. Even otherwise the contention of learned counsel for the petitioner is well‑founded that effective order has been passed by the Labour Court against the petitioner. The petitioner is well within his right to file appeal before the Punjab Appellate Tribunal as per principle laid Gown by the Hon'ble Supreme Court in Saya's case PLD 1969 SC

65. In view of what has been discussed above, the Punjab Appellate Tribunal to decide the case afresh on merits. Since the matter is old one,' therefore, Punjab Appellate Tribunal is directed to decide the same within two months, positively, after receiving the order, of this Court. Parties are directed to appear before Punjab Appellate Tribunal on 13‑4‑2000. There is no order as to costs. H.B.T./A‑240/L Order accordingly.