1992 PLP 239 (PLC)

This is an appeal against the order, dated 4-2-1991 passed by the learned Presiding Officer, Sindh Labour Court No. III at Karachi, whereby grievance application filed by the appellant was dismissed as time-barred.

2. I have heard the appellant in person and Mr. Izzat Puri, learned Advocate for the respondent No. 2 and have also gone through the record anti proceedings of the case.

3. The brief facts of the case are, that the appellant was a permanent employee of the respondent establishment and on 16-3-1980 he was posted as `Boiler Operator' at Korangi Thermal Power Station of the respondent No.

2. He was charge-sheeted for certain acts of misconduct on 30-3-1980. Domestic enquiry was held in which he was found guilty. He was dismissed from service by order, dated 28-6-1980, which is Annexure `A' to the grievance petition. He moved learned Chairman, N.I.R.C. under Notification No. SRO-97(1)/79, dated 27-1-1979 for reinstatement. The learned Chairman, N.I.R.C., by his order, dated 30-3-1981 ordered the appellant to be reinstated in service. This decision of learned Chairman is reported in 1981 PLC

506. The respondent No. 2 filed Constitution Petition No. D-397 of 1981, which was decided on 3-10-1981 and is reported in 1982 PLC

541. By this decision the learned Division Bench of Sindh High Court at Karachi set aside the order of learned Chairman, N.I.R.C., on the ground that jurisdiction of Chairman, N.I.R.C. did not extend to adjudication of individual grievance. The appellant, thereafter, following the decision of the Supreme Court in the case of K.E.S.C. Ltd. v. N.I.R.C. PLD 1982 SC 131; decided on 1-12-1981, moved the Deputy Commissioner (East) for filing criminal case against the respondent under sections 5 and 7 of Pakistan Essential Services Maintenance Act, 1952 but probably Deputy Commissioner did not exercise the powers vested in hint under the said Act therefore the appellant moved the High Court in Constitution Petition No. 24 of 1982 decided on 21-2-1983, 1983 CLC page 3124, wherein Deputy Commissioner, East, was directed to take steps strictly according to law. Consequently Deputy Commissioner, East, filed complaint against respondent No. 2 and its Officers under the Essential Service, Maintenance Act, 1952. This complaint was finally dismissed on 15-3-1988. The appellant against this order filed no appeal or revision.

4. However, in the case of Pakistan Television Corporation v. M. Babar Zaman and others 1989 SCMR 1549, the Hon'ble Supreme Court decided four appeals and two Civil petitions wherein it was held `that Pakistan Essential Services Maintenance Act, supersedes every other provision only to the extent where it is contrary and not beyond that. Ordinary law will have application for adjudicating the matters not covered by the provisions of the Act'. 1t was further held that `employees who fall within the category of workman are not exempted from application of I.R.O., 1969 and can have recourse to the Labour Courts and those who are excluded from the Labour Court also can resort to Constitutional jurisdiction of High Court if the rules governing them happen to be statutory'. On coming to know of this decision of the Supreme Court in March, 1990 the appellant served grievance notice upon the respondent on 24-3-1990 which was not replied to and thereafter he filed grievance petition. He also moved application for condonation of delay. The Labour Court, however, by impugned order, rejected the application for condonation of delay and dismissed the grievance application as time-barred.

5. It may also be pertinent to reproduce operative part of the impugned order of the learned Labour Court which reads as under:- "In the present case, admittedly, the petitioner was dismissed on 28th June, 1980. He approached the N.I.R.C. for reinstatement and was reinstated. K.E.S.C. challenged order of reinstatement in writ petition and the order was set aside. Thus the proceedings between the petitioner and the respondent (KESC) terminated on 13-10-1981. Thereafter he should have approached the Labour Court as the executory power remained intact with the Labour Court under section 7-A, Essential Services (Maintenance) Act, 1952. The time elapsed in persuing the criminal proceedings before different forums cannot be excluded as it cannot be said that the petitioner was prosecuting the said case for reinstatement diligently and the petitioner having approached this Court on 9-1-1990 after about eight years and the provisions of section 5 do not contemplate exclusion of 8 years, which has been spent by the petitioner in pursuing the criminal proceedings. The petition under section 25-A of the I.R.O., 1969 is hopelessly time -barred and the provisions of section 5 of the Limitation Act (65-B), in the circumstances narrated above, cannot be exercised in favour of the petitioner."

6. The only point that requires consideration is whether the grievance notice or grievance petition were time-barred and if they are time-barred whether sufficient ground has been shown by the appellant to warrant condonation of delay.

7. The dismissal order is admittedly dated 28-6-1980 whereas grievance notice has been given and grievance application has been filed in 1990. Under section 25-A of the I.R.O., 1969, the workman has to bring his grievance to the, notice of the employer within three months of the date of cause of action. The grievance notice, dated 24-3-1990, which has been produced as Exh. R to the grievance application is obviously beyond the period of three months as prescribed under section 25-A and is, therefore, prima facie time-barred.

8. However, under section 65-B of I.R.O., 1969, section 5 of the Limitation Act, 1908 has been made applicable in computing the period within which an application is to be made, or any other thing is to be done, under this Ordinance. Under section 5 of Limitation Act the application to which this section is made applicable can be admitted after the period of limitation prescribed therefore, when the applicant satisfies the Court that he had sufficient cause for not referring the appeal or making the application within such period.

9. The appellant in his application for condonation of delay has taken the ground, that the delay in filing grievance petition was due to the fact that the appellant had prosecuted with due diligence and with good faith the proceedings in N.I.R.C. and Magisterial Courts therefore time taken in these proceedings should be excluded while computing the limitation. Admittedly the proceedings finally ended in Criminal Court by order of the Assistant Commissioner S.D.M. Nazimabad, dated 15-3-1988 where after no further action was taken by the appellant. Even if the time taken in these proceedings uptil 15-3-1988 is excluded still grievance notice as well as grievance application would appear to be barred by limitation. The appellant has further taken the plea that it was only after the aforesaid judgment of the Supreme Court in the case of Pakistan Television Corporation that he became aware that he could approach Labour Court for reinstatement. This judgment was delivered on 10-12-1988 and was published as 1989 SCMR 1549. I need not go into the question as to whether the right which had been finally settled or which stood extinguished by operation of law of limitation, could be revived by such decision of Hon'ble Supreme Court, but the fact remains that this judgment was also delivered on 10-12-1988 and published in the SCMR in the middle of 1989. The appellant, however, states that he became aware of this judgment in March, 1990.

10. In the case of Agricultural Development Bank of Pakistan Limited v. Noor Muhammad etc. NLR 1985 Labour relied upon by the appellant, the Hon'ble Supreme Court has held that `mistake of law is distinguishable from ignorance of law. Delay as a result of mistake of law entitles an applicant condonation, whereas delay as a result of ignorance of law is inexcusable'. If the contention of the appellant is accepted that he was under mistake of law as to which Court was competent to give him relief of reinstatement even then this mistake was set at rest by the law laid down by their Lordships of the Supreme Court in the aforesaid case of Pakistan Television Corporation v. M. Babar Zaman, dated 10-12-1988. From that date it would be the ignorance of the appellant with regard to law laid down by their Lordships, and that ignorance as held by the: Supreme Court, was inexcusable.

11. The contention of the appellant that he became aware in March, 1990 about the law laid down by their Lordships in the aforesaid case of Pakistan Television Corporation is not supported by any evidence. Even otherwise the Hon ble Supreme Court on 10-12-1988 settled the law with regard to question as to which Court was competent to give the relief to the appellant. Even if the appellant was unaware of this law, it will amount to ignorance of law which cannot be considered as good ground or sufficient cause for condonation of delay. '

12. For the reasons discussed above I find the grievance notice and grievance application filed by the appellant to be hopelessly time-barred, and therefore, I dismiss the appeal of the appellant. H.B.T./1939/Lb.S Appeal dismissed.