1995 PLP 382 (PLC)

‑‑‑‑Ss. 25‑A & 38(3)‑‑‑Limitation Act (IX of 1908), S. 14‑‑‑Limitation‑‑ Condonation of delay‑‑‑Time spent in Court not having jurisdiction, held, could be excluded provided proceedings were brought with bona fide intention and due diligence‑‑‑Law being well‑known regarding exclusive jurisdiction of Labour Court, matter taken up in suit before Civil Court would not authorise Labour Court to ‑condone delay‑‑‑Period spent before Civil Court, in circumstances, could not be excluded. S.M. Nazim for Appellant. Ch. Bashir Ahmed for Respondents Nos. 1 and

2. S.A. Latif for Respondent No.

3. Date of hearing: 26th October, 1987. This is an appeal challenging the decision dated 20‑7‑1987 recorded by learned Presiding Officer, Punjab Labour Court No. 2, Lahore whereby the grievance petition of the appellant was dismissed.

2. The facts are that respondent No. 3 Mr. Qamar Din who was Tin Smith Mistry was granted LPR for 325 days and he proceeded on leave on 2nd May, 1984. In the vacancy caused thereby Ejaz Ahmed was promoted who retired on 15‑9‑1984. Before the retirement of Ejaz Ahmed, Qamar Din, respondent No. 3 had applied for the cancellation of his remaining LPR. His request was refused but on second application he was recalled vide order dated 19‑8‑1984 and he resumed duty. The appellant challenges the cancellation of the LPR of 6amar Din on the ground that if the LPR of the said person had not been cancelled he would have been promoted as Tin Smith Mistry since Ejaz Ahmed who had been promoted had also retired. First of all the appellant had knocked the door of Civil Courts by instituting a civil suit on 2‑9‑1984. The plaint was returned by order dated 2‑12‑1984 for want of jurisdiction. The appellant thereafter brought a grievance petition in March, 1985 but it was withdrawn on 7‑2‑1987 with the permission to bring afresh one and on the same date he brought afresh grievance petition. The petition was opposed by the Railway, as well as by Mr. Qamar Din respondent No.

3. It was pleaded that the appellant had no guaranteed right, that the grievance notice and grievance petition were time‑barred. The learned lower Court has condoned the delay but dismissed the grievance petition on the ground that the appellant had no right guaranteed by any law.

3. Learned counsel for the appellant has argued that since the appellant had a right to ask the employer to consider him for promotion, therefore, he had a right to challenge the order whereby Qamar Din respondent No. 3 was recalled from LPR. The argument is devoid of force. Promotion is not a right. It is the discretion of the employer to promotion and if he reasonably finds that an employee is not fit for promotion he can refuse to promote him so the employees have a right only to claim that they should be considered for promotion. This being so the Courts cannot direct the employer to promote an employee but can only direct that he be considered for promotion. Question for considering one for promotion arises if there is a vacancy. Since Qamar Din was recalled, there was no vacancy, therefore, the appellant had no right to ask the employer to consider him for promotion.

4. Learned counsel for the appellant has argued that the order of recalling Qamar Din for LPR is against the Rules. The relevant rule is section 18, clause (2). Learned counsel argues that this rule authorises only to the employers to recall a person who has proceeded on LPR but has not given any right to retiring person to ask the employer to recall him from LPR. The argument on the face of it is fallacious. The rule does not debar the person who has gone on LPR to apply for the cancellation of the unexpired LPR. Since the employer has been given powers to recall a person who has proceeded on LPR, the retiring person can request the employer to exercise such powers in his favour, and it is, up to the employer to see whether the person be recalled or not.

5. On behalf of Qamar Din respondent No. 3 cross‑objections have also been filed challenging the finding of the learned lower Court for condoning the delay in filing the grievance petition. Section 14 of the Limitation Act provides that time spent in a Court which had no jurisdiction can be excluded while computing the period of limitation if the party has brought the civil proceedings with bona fide intention and has shown due diligence. Since the appellant was holding the post of Tin Smith Mistry in Mughalpura. The counsel for the appellant could have realised that the appellant being a workman the remedy lay with the Labour Courts and not with the Civil Courts. However, in cases where there is some difficulty to see whether dispute is triable by the Civil Court or Labour Court, a civil suit may be brought. There may be justification to say that due care and caution was exercised but in spite of it due to the intricacy pf the legal point wrongly the door of the Civil Court was knocked. In these circumstances the period spent in the Civil Court proceedings before the Civil Court could not be excluded under section 14 of Limitation Act. In such cases no question of condonation of delay arises rather it is to be seen whether the time spent in wrong Court can be excluded or not. The finding of the learned lower Court recorded on the point, therefore, is reversed.

6. As a result of what has been said above, cross‑objections are accepted and the appeal of the appellant is dismissed. A.E./466/Lb.P Order accordingly.