1984 PLP 421 (MLD)

Date of hearing: 21st February, 1984. The facts, necessary for the decision of this writ petition, are, that way-back in the year 1955, Khalifa Abdul Rashid respondent joined the service of M/S National Tyre Rubber Company. About 12 years thereafter, his services were transferred to another concern by the name of M/S Airfoam Limited, with which, he served for about four years. On 31-4-1971, his services were placed at the disposal of still another Company, namely National Commercial Enterprises Limited. While, as an Accountant, he was on the rolls of this Company, vide letter dated 31st May, 1974 (Annexure 'H'), it was conveyed to him by the Secretary to the Governing Director, that w.e.f. 1st June, 1974, his services were no longer required and that apart from other dues, he would be paid on month's salary in lieu of notice.

2. In response to the letter aforesaid, the respondent in his communication dated 4-6-1974 (Annexure 'J') addressed to the Governing Director, of the National Commercial Enterprises Ltd., assessed the dues payable to him at Rs.6,477 and further demanded payment of provident Fund and gratuity. This demand was accepted, to the extent of the payment of provident fund amounting to Rs.3,630, which he received from the said Company on 10-6-1974, under receipt Annexure 'M'. Seemingly, a dispute arose between the parties regarding the payment of other dues and the gratuity.

3. On 2-7-1974 the respondent brought a grievance petition under section 25-A of the Industrial Relations Ordinance, 1969, challenging the termination of his service. The sole respondent therein, was, described as under:

"Mr. H. Mumtaz, Managing Director, National Tyre & Rubber Company, 71-B-2, Gulberg-III, Lahore." It was, however, averred in the petition, that the present petitioner, was, the Managing Director of M/S National Tyre & Rubber Company, which had three subsidiaries namely, National Commercial Enterprises Ltd., Industrial Enterprises Ltd., and Airfoam Ltd. The petitioner contested .the petition, objected to its maintainability and inter alia raised the plea that the respondent was the employee of National Commercial Enterprises Ltd. but it was not sued.

4. To meet this objection, the respondent moved an application under Order I, rule 10, C.P.C. with the prayer that in the nomenclature of the petitioner, an addition may be allowed to be made, showing him as the "Governing Director National Commercial Enterprises Ltd." The two concerns namely National Tyre & Rubber Company and National Commercial Enterprises Ltd., were also sought to be impleaded through Mr.H.Mumtaz, as respondents Nos.2 and 3, respectively.

5. The Punjab Labour Court No.1 which dealt with this case referred to the definition of the term "employer" as given in section 2(c) of the Standing Orders Ordinance, 1968, and maintained that the respondent served for about 20 years in three concerns i.e. (1) National Tyre Rubber Company (2) Amirfoam Ltd. (3) National Commercial Enterprises Ltd. Mr. H . Mumtaz was the managing Director of the first establishment and Governing Director of the other two. In the opinion of the Labour Court, it was merely a case of mis-description of the respondent, the application was, thus, allowed. The order passed by the learned Labour Court is dated 23-5-1977. The petitioner challenged this order through a revision but it was dismissed by the learned Labour Appellate Tribunal on 7-9-1977. Consequently, the respondent filed an amended grievance petition (Annexure 'T') to which the National Tyre & Rubber Company and National Commercial Enterprises Ltd., were not arayed as respondents but only the description of the sole respondent namely Mr. H. Mumtaz was modified and he was also shown as Governing Director Airfoam Ltd. and National Commercial Enterprises Ltd.

6. After hearing the case on merits, the learned Labour Court held that the investment in the three concerns aforesaid, alongwith another Company named Industrial Enterprises Ltd., was, made by Mrs.Jamila Mumtaz and Mr.H.Mumtaz; out of the said three concerns, he wets the Managing Director of one and the Governing Director of the other two. The Court also found that the workers were transferable from one unit to another and further came to the conclusion that the establishments referred to above, constituted one establishment and thus, it was not necessary for the respondent, to have prayed for grant of relief against any specific establishment. The petitioner's objection that the respondent, was, not a worker, was, also rejected. It was further maintained that the letter of termination of respondent's service, was, issued by the Secretary to the Governing Director, who was not competent to do so and moreover it did not answer the require ment of para.12 of the Standing Orders Ordinance, as the reasons for termination of service, were, not mentioned therein. As regards the petitioner's stand that the post held by the respondent, was, abolished, the Labour Court took the view that in such an eventuality only the junior most accountant in the four units could be retrenched. On the basis of these findings, by its order, dated 21-6-1978 the Labour Court accepted the petition and ordered the respondent's re-instatement, with full back benefits.

7. The petitioner preferred an appeal but the learned Labour Appellate Tribunal, without going into the merits of the case under its order, dated 30-9-1981 dismissed the same as barred by time. The validity of this order, is under challenge in this writ petition.

8. The circumstances under which the learned Tribunal declared the appeal barred by time, are, that the petitioner applied for the Labour Court's order, dated 21-6-1978, through his counsel, on the same day when the order was announced, but the copy against this application was not issued. On 3-7-1978, the Secretary of the National Tyre & Rubber Company (in the impugned order wrongly mentioned as Secretary of the Union) moved another application for issue of the copy. It was delivered to him on the same date. The order, dated 31-8-1978 demonstrates that the petitioner's counsel approached the learned Labour Court, to obtain the copy, against his application dated 21-6-1978, but his request was declined. The operative part of this order is, reproduced below:-. As the copy of the order was supplied to the Secretary of the respondent on 3-7-1978, therefore, no copy was prepared on the application received on 21-6-1978. The Advocate did not come to this Court to obtain any copy. Suddenly he reminded on 31-7-1978 that he wanted a copy against his application dated 21-6-1978. He was informed that a copy had already been supplied to his party on 3-7-1978 and as such a new copy cannot be issued to him. The copy already issued to the Secretary of the respondent is with the Advocate now and I see no reason why a second copy be issued to him. His application is, therefore, rejected. " On 2-8-1978, the petitioner filed an appeal against the Labour Court's order, dated 21-6-1978. The copy of the order, issued on 3-7-1978, was, appended with the memorandum of the appeal.

9. Before the learned Tribunal, it, was, argued that the copying clerk of the Labour Court, refused to issue the copy to the Secretary, against the application, dated 21-6-1978, filed by the counsel and he was, told if an application, was, moved by him, the copy would be supplied. So, it was contended, the Secretary was, persuaded to file another application. The learned Tribunal did not accepted this explanation and maintained:- "It is alleged that the Copy Clerk said that if another application was given by the Secretary of the Union, copy would be supplied to him and that it was on this that another application for copy on 3-7-1978 was made. May it be so, but this not sufficient for the condonation of delay. If the Copy Clerk was not inclined to issue copy to the Secretary of the Union on the first application, the Secretary should have, instead of making another application, asked the counsel to go and collect the copy."

10. It may be added that the memorandum of appeal was not accompanied by an application under section 5 of the Limitation Act. Such an application was filed subsequently but it, was, turned down with the observation, that it should have been filed alongwith the appeal, and whereas it, was, moved after about 2 years. In the estimation of the learned Tribunal the application did not disclose any reason for condonation of delay. The Tribunal relied upon Mathela and others v. Sher Muhammad A I R 1935 Lah. 682 to hold:- " "That where there are more than one application for copy, copy obtained on that application is to be considered, according to which, the period was short." The period of limitation was, thus reckoned from the date of the second application and the appeal held as barred by time.

11. The learned counsel for the parties have been heard and the record perused. The petitioner's learned counsel strenuously argued that he applied for the copy of the order dated 21-6-1978 on the same date; and, therefore, for the purposes of computation of period of limitation, he was entitled to have the said date recorded in the copy issued to the Secretary on 3-7-1978, notwithstanding the filing of another application by the latter. It, was, forcefully contended that on 30-7-1978, the petitioner's counsel moved the learned Presiding Officer of the Labour Court for correction of the date but his application, was, rejected on 2-8-1978. In the submission of the learned counsel, the period from 21-6-1978 to 3-7-1978, was, the time "requisite", in contemplation of section 12(2) of the Limitation Act, for obtaining the copy and thus, the appeal filed on 2-8-1978 was within time. The learned counsel also drew my attention to various aspect of the case, on merits, to point out that the order of the Labour Court, was void and without jurisdiction. This argument was pressed, to urge that the order being null and void, the limitation was not a bar for removal of such an order. Indeed, there is no dearth of authorities to support this proposition. However, in view of the order I propose to pass, I purposely avoid to determine the issue, as to whether or not the Labour Court's order is a nullity. Likewise, I do not consider it necessary to give the details of these arguments. In reply to these submissions the learned counsel for the respondent adopted the reasoning which influenced the decision of the learned Tribunal and heavily relied upon the ruling cited in the impugned order. He further submitted that since the petitioner failed to file the application for, condonation of delay, alongwith memorandum of appeal, the question of extension of time did not arise. He then referred to Abdul Khaliq etc. v. Fazal-ur-Rehman etc. P L D 1967 Pesh. 186 in aid of the contention that the application under Section 5 of the Limitation Act, not having been submitted at the proper time, the appeal warranted out-right dismissal.

12. It is discernible from the record that there, are, two applications for the supply of the copy of the order dated 21-6-1978. The first one was filed on 21-6-1978 by the petitioner's counsel and whereas the second application is dated 3-7-1978 which was moved by the Secretary. It is in the Labour Court's order dated 1-8-1978, that on the application dated 21-6-1978 no copy was prepared and it, was, made ready for delivery on 3-7-1978, on the basis of the second application. The question calling for adjudication, in this case, therefore, is, that for the purposes of section 12(2) of the Limitation Act, as to whether the period requisite for obtaining the copy should begin; from 21-6-1978 or 3-7-1978. The law on this point, is, tensely stated in West Pakistan Industrial Development Corporation v. Aziz Qureshi P L D 1973 S C 222, wherein the following passage from the judgment of the Lahore High Court, in the case of Gul Muhammad v. Allah Dittx P L D 1960 Lah. 442 has been quoted with approval:

" .. ..the time "requisite" for obtaining copies which can be excluded under section 12, Limitation Act, is the time which is taken between the date of application and the date when the copies are ready, but it can be further extended it further delay takes place by reason of the carelessness of the office in giving wrong information to the applicant as to the date' of which the copies would be ready, or in, giving no information at all.. This enunciation of-law, leaves no doubt that the time, from the date of the application, till the copy was read for delivery to the applicant, could be treated as time "requisite" or obtaining the copy.

13. The order dated 1-8-1978 is suggestive of two reasons, which weighed with the learned Labour Court, in refusing to issue copy to the counsel, against his application dated 21-6-1978; firstly, he did not come to obtain the copy and secondly a copy had already been supplied to the petitioner on 3-7-1978. Needless to state, that the computation of the period of limitation, from 1-8-1978, was a right of great importance, for the petitioner, of which he could not be stripped off lightly. There is neither any indication on the file, of the Tribunals below, nor it is claimed, that in pursuance of his application dated 21-6-1978, the counsel was informed of some date for collection of the copy. It was, therefore, idle for the learned Presiding Officer of the Labour Court, to have blamed the counsel that he did not come to collect the copy. Since the application dated 21-6-1978, was, filed within' time and was also not lacking in any' respect, the counsel could legitimately, ask for issuance of a copy against the same or at least to have the date of 21-6-1978 recorded, on the copy issued against the second application. I am, therefore, of the view that the refusal of the counsel's request by the learned Labour Court, was, illegal.

14. The word "requisite" cast a burden on the counsel to show, that no delay, was, caused beyond the prescribed period, in collecting the copy. It, therefore, requires to be adjudged, if there was any negligence, on the part of the counsel, to disentitle the petitioner, from the exclusion of th6 time claimed by him. The question of negligence, was, examined in Ghulam Nabi v. Jan Muhammad P L D 1950 B J

90. In that case the appellant applied for the copy on the same date, when the judgment and decree were passed. The Copying Department did not fix any date for delivery of the copy. However, the appellant collected the same within three weeks and sought the extension of that period under section 12(2) of the Act. An objection of the opposite party, that the appeal was barred by time, was, repelled and learned Judge observed:

. . No date was fixed by the Copying Department for the delivery of .the copies. He took the copies within the period of 3 weeks. In the absence of any direction by the copyist to take the delivery of the copies on a particular date it cannot be said that the petitioner had spent an inordinate time in getting the copies and was, therefore, guilty of negligence." As already stated, in the instant case as well, no date for collecting the copy was conveyed to the counsel. The petitioner collected the copy through his representatives on 3-7-1978 i.e. within 12 days of the application dated 21-6-1978. Such a conduct, by no means, is, demonstrative of any negligence or lack of diligence.

15. I have perused the ruling cited in the impugned order, which is the anchor-sheet of the respondent's argument, but with respect, I regret to state, that it does not lay down any absolute rule, in terms of the observations made by the learned Tribunal, which have been quoted in extenso, in the earlier part of this judgment. In this precedent, the trial Court's judgment and decree were passed on 3-2-1933 at Chiniot. The appellants applied for the copy at the District Headquarters on 16-2-1933 but deposited the requisite copying fee on 20-3-1933. They also moved another application on 27-2-1933, at Chiniot for obtaining the copy, which was ready on 28-2-1933 but, was, actually delivered to them on 6-3-1933 on payment of the copying charges. The observations made in this ruling, for computing the period of limitation, from the date of delivery of the copy at Chiniot, are, qualified by the facts of that case, and cannot be made applicable to the instant case.

16. I may now proceed to dispose of the respondent s objection founded on the petitioner's failure to file the application under section 5 alongwith the memorandum of the appeal. It may be added 'that the petitioner, based his right for enlargement of time on section 12(2) and not on section 5 of the Limitation Act. The extension of time under the latter provision is discretionary with the Court but under section 12(2), a litigant is entitled, as a matter of right, to the exclusion of time "requisite" for obtaining the copy. It was held so, in Mst. Jamila Khatoon v. Mst. Taj-un-Nisa and another P L D 1984 S C

208. It was, therefore, not incumbent upon the petitioner, to have applied for enlargement of time, under section

5. It is true, that his application, in this behalf, is captioned as one under section

5. But such an application, was, merely an act of supererogation. It needs no emphasis, that in such a situation, citation of an incorrect section, in the application, is, not of much significance and does not detract from the Tribunal's obligation, before whom the parties were arrayed, to apply the law correctly. On this analysis of the case, the explicit reliance of the learned counsel for the respondent on Abdul Khaliq v. Lt. Fazal-ur Rehman, is misconceived. The rule laid down in this precedent, is, that an application made after the period of limitation, for setting aside the abatement under Order XXII, rule 9(2) must be accompanied by an application under section 5 of the Limitation Act.

17. The sole purpose of the application moved by the petitioner, seemingly was, to highlight certain facts, which were already on the record and entitled to him to the exclusion of time spent on obtaining the copy. There are two affidavits on the Tribunal's file; one by Mr. H. R. Haider, Advocate who moved the application dated 21-6-1978 and the other of Basharat Ahmad the Secretary, who submitted the second application on 3-7-1978. It is in the sworn affidavit of Mr.H.R. Haider that he contacted the copying clerk several times but the copy was not issued and despite his application dated 31-7-1978, the date of the application, in the copy delivered on 3-7-1978 was also not corrected by the learned Labour Court. The affidavit of Basharat Ahmad gives, the explanation for filing the second application in the following words:

"That the deponent representative of the company went to the lower Court on 3-7-1978 to obtain the copy on the application dated 21-6-1978 filed by the counsel for the appellant, but he was directed by the Clerk of Court to give fresh application as he could not be given a copy on the previous application filed) by the counsel. Therefore, the deponent filed another application. " The respondent did not file any affidavit in rebuttal. These facts have succinctly been enumerated in the petitioner's application under section

5. The affidavits and other facts, which almost floated at the surface of the record, escaped the notice of the learned Tribunal. With utmost deference to the learned Tribunal, I am unable to subscribe to the reasoning which prevailed with it, in dismissing the appeal as barred by time. It was obviously, within time.

18. The learned Tribunal ignored the provisions of section 12(2) and dilated upon section

5. The impugned order suffers from an illegality on the face of the record and a writ in the nature of certiorari can, therefore, be granted. Reference in this connection may be made to Nagina Silk Mill v. Income-tax Officer P L D 1963 S C 322 at p.

327. This authority was followed in Premier Cloth Mills Ltd. v. The Sales Tax Officer 1972 S C M R 257 and a time-barred assessment held as going to the very root of the jurisdiction of the Assessing Authority. Again in Shabir Ahmad v. Kabir-un-Nisa P L D 1975 S C 58 assumption of jurisdiction upon a misreading of a provision of law, was treated as an error apparent on the face of the record justifying interference through writ jurisdiction. I, therefore, find it a fit case for removal of the impugned order through judicial review.

19. The learned counsel for the respondent has raised another objection that the writ petition is barred by laches. He argued that the impugned order, was passed on 30-9-1981 but the instant writ petition, was, brought by the petitioner on 5-11-1983 and that, therefore, he was not entitled to any relief under the writ jurisdiction, which is essentially discretionary. The learned counsel went on to submit, that the petitioner even acquiesced and accepted the Tribunal's order in question. In this connection, he drew my attention to the respondent's petition under section 51 of the Industrial Relations Ordinance. In this petition, he prayed for recovery of back benefits, from the petitioner, as arrears of land revenue. The latter contested this petition but it was allowed on 26-2-1983 and he was directed by the Labour Court to pay a sum of Rs.94,920 to the respondent, for the period from 1-6-1974 to 30-5-1981 when he was re-instated. The submission, was, that the petitioner contested only the payment of back benefits and never assailed the order of re-instatement till after the expiry of about 25 months, when he came to this Court for judicial review. It, was, also urged that the petitioner did not disclose these facts, in the writ petition, and, therefore, he came to the Court with unclean hands. This, the learned counsel contended, furnished an additional ground to refuse relief to the petitioner. He relied on Wajdad v. Mir Muhammad Balouch P L D 1982 Quetta 41, Ibn-e-Hassan v. Government of West Pakistan P L D 1972 Lah. 294, Ch. Rehmat Ali v. Custodian Evacuee Property P L D 1966 Kar. 31 and Sardar Muhammad v. Deputy Administrator, Residual Property 1981 S C M R 738.

20. In reply to these arguments, the learned counsel for the petitioner also relied upon the respondent's same petition under section 51 and stated that in these proceedings, he clearly assailed the validity of the order re-instating the respondent, on the question of jurisdiction; on the same pattern as a void decree can be challenged in the execution proceedings; pursued these proceedings in good faith, and the invocation of writ jurisdiction, therefore, stood postponed till the decision thereof. The respondent's petition, was decided on 26--2-1983 but in those days, the petitioner was suffering from severe heart attack and even had to go abroad for treatment. In this behalf, the learned counsel heavily relied upon two medical certificates dated 14-3-1983 and 30-6-1983, issued by a Cardiologist and Physician Dr. A . Rauf Yousaf. Reference was also made by him to para.15 of the writ petition, in which it is averred that the petitioner remained hospitalized.

21. There is some merit in these submissions. The petition under section 51, was, instituted on 16-11-1981 i.e. after about two months of the Tribunal's order and it, was, disposed of finally on 26-2-1983. One of the objections put forth by the petitioner in contesting this petition, embodied in para.3 of the written statement, under the preliminary objections, is, reproduced:- " Without prejudice to the above, the application is not against proper respondent. The petitioner was terminated from the service of National Commercial Enterprises Ltd. Lahore. The present respondent was impleaded as a party by filing an amended application on 31-5-1977. The amendment would seem to have been allowed, illegally when the claim against National Commercial Enterprises Ltd. was grossly time-barred. The learned Court was duty bound to disallow such an amendment. The present respondent was neither the Governing Director nor on the Board of Directors of National Commercial on that date, which would also be borne out from the record of the Assistant Registrar Joint Stock Companies. The amendment of the application allowed in March, 1977 was thus without jurisdiction and the whole structure built upon it tumbles down and has no existence in law and is a nullity. This para. lends support to the arguments of the learned counsel. Further, Annexures 'E and G' to the writ petition, which are copies of Form XII, issued by the Assistant Registrar Joint Stock Companies, Lahore indicate that on 27-3-1975, H.Mumtaz resigned from the Director ship of the National Commercial Enterprises Ltd. and Industrial Enter prises Ltd. These documents were relied upon, to canvas that the plea urged in para.3 of the written statement, was, not without foundation. Undoubtedly, the parties remained engaged against one another from 16-11-1981 to 26-2-1983 in the proceedings under section

51. The question here, is, not that the course adopted by the petitioner, to get rid of, the adverse order, was, not countenanced by law, but that he prosecuted those proceedings in good faith. It, therefore, cannot be inferred that the petitioner, acquiesced in the impugned order. The two medical certificates show that on 30-1-1983 the petitioner suffered a heart attack, but, was, not permitted to travel for a period of two months and then advised to go abroad for treatment. It, is, in his affidavit that he could not move this Court earlier, due to his hospitalization outside and inside the country. There is, thus a plausible explanation for the delay in filing the writ petition.

22. The constitution does not provide any period of limitation, for invoking writ jurisdiction. Mere delay is not ground for non-suiting an applicant unless he is shown to have consciously acquiesced in the' adverse order. This principle has been reiterated in the Quetta judgment, cited on behalf of the respondent. Upon the facts of this case, I have already found that there was no conscious abandonment of his rights by the petitioner. However, it shall be useful to refer here, to the' following passage from Mehraj-ud-Din v. Senior Superintendent of Police P L D 1970 Lah. 569:

" except when there is a bar of limitation, the delay simplicitor has never been treated as a bar. Laches has often been defined as such negligence or omission to assert a right, as, taken in conjunction with the great lapse of time and other circumstances, causes prejudice to an adverse party. If a person seeking a remedy had not committed such a delay as would cause prejudice to the other side or would amount to waiver or acquiescence on the part of the person seeking the remedy, technical plea of laches, by itself would not be sufficient to bar the remedy." This is not a case in which some prejudice may be said to have been caused to the respondent on account of delay in filing the writ petition. At least none has been pointed out to me. On the other hand the petitioner has succeeded in explaining the delay occasioned in invoking the writ jurisdiction.

23. Before proceeding further I may discuss the respondent's reliance on Lahore judgment reported as P L D 1972 Lah.

294. In this case, the appeal of the petitioner therein, against the first order, was, dismissed as barred by time and he was held not entitled to claim any relief under the writ jurisdiction. This precedent is distinguishable, for, I have already found that the dismissal of the petitioner's appeal on the ground of limitation, was, utterly illegal. The reliance of the respondent's learned counsel, on this precedent, qua the instant case, is, thus much off the mark.

24. The rule that a person coming to the Court with unclean hands is not entitled to any relief in equity, is, well-established. The observations figuring in both Karachi and Supreme Court's judgments cited by the learned counsel for the respondent, are, also to the same effect. It, therefore, has got to be seen whether there is any justification for non-suiting the petitioner on this ground. It may be observed, that in the writ petition, the delay in the filing thereof, has been assigned to the petitioner's illness and there is no mention of the proceedings under section 51 but this is merely an omission and not a wilful concealment. The reason which obliges me to hold so, is, that the petitioner himself relies upon these proceedings, to frustrate the respondents endeavour to defeat the writ petition. I am, therefore, unable to accept the argument that the petitioner, is, guilty of concealment of facts and has not come to the Court with clean hands.

25. In the context of the foregoing discussion, there, is, another important factor which needs to be alluded to. Since March 1982, the respondent has gone to Saudi Arabia. This is manifested by his application dated 3-3-1982, submitted to the Labour Court. The fact that this writ petition is, being defended by him through his attorney, further leads to the conclusion that he, is, still abroad and has managed believe to get some lucrative assignment. There, is, thus reason to that he is not eager for continuing with his previous job and, is merely interested in realizing a handsome amount, from the petitioner, by' way of back benefits. He, therefore, cannot justifiably plead dismissal of the writ petition on the ground of equity.

26. For the foregoing reasons this writ petition, is accepted and the order of the Labour Appellate Tribunal declared to have been passed without lawful authority. The petitioner's appeal shall be treated as pending and disposed of on merits, in accordance with law. The parties are left to bear their own costs. M . Y . H . Petition accepted.