1988 PLP 243 (PLC)

This is an appeal directed against the decision dated 12‑10‑1986 recorded by learned Labour Court No.4, Faisalabad, whereby the grievance petition of the respondent against this transfer was accepted.

2. The facts are that the respondent was recruited as P.2 worker on 28‑9‑1977 in bardana section and confirmed on 1‑1‑1978. On 2‑2‑1984 he was transferred to workshop section on his own request to work as a hammerman where he worked upto 15‑8‑1985, when he was transferred to production section to remove the waste products of the Maize, he challenged this transfer in his grievance petition on the plea that by way of victimization his transfer order was made and that he lost his health ‑due to lot of dust in the production section. He also urged that he had lost the chances of further promotion by this transfer order.

3. The respondent was justified in challenging the transfer order as his nature of duties and channel of promotion had been changed. He was working as hammerman in the workshop section where his duty and channel of promotion was different. In the production section he had to discharge different duty by removing rubbish. Without his consent his category could not be changed.

4. But the learned Labour Court has wrongly held that the grievance notice was within time. The transfer order is dated 15‑8‑1985 and this is not the case of the respondent that it was implemented on such a date that from it the grievance notice dated 5‑5‑1986 was within time. Admittedly no application for condonation of delay was given. Learned counsel for the respondent has argued that although no separate application for condonation of delay was given up but in the very grievance petition the grounds of delay had been explained: I have carefully gone through the grievance petition but have not been able to find any explanation for delay. Needless to say that where an action has been brought beyond the prescribed period of limitation, each day's delay is to be explained. The grievance notice could be given upto 14‑11‑1985 but it was sent on 5‑5‑1986. It was delayed by about 6 months. Learned counsel for the respondent has argued that since the order of transfer was void no limitation started and thus the grievance petition was not time‑barred. In 1984 P L C 572 last representation had been made on 17‑8‑1977, it was therefore, held that cause of grievance arose on the said date and the grievance notice dated 14‑10‑1977 was within time. No question of making any representation in between the order of transfer and the service of grievance notice arises in the present case therefore, the ruling is distinguishable.

5. The other argument of the learned counsel is that where the order is a nullity no question of limitation arises. He has cited 1986 Supreme Court Monthly Review 962, P L D 1976 SC 37 and P L D 1976 S C

208. The first ruling is distinguishable inasmuch as the Settlement Authority had passed an order without hearing and notice to the party whose presence was necessary. Obviously an order which is passed against a party without hearing him is not binding upon the said person and thus he can challenge it when it comes in his knowledge and is used against him. He has no cause to challenge it before it is used, against him. He feels prejudiced only when he is confronted with such an order by being used against him and thus in such cases question of limitation does not arise from the date the order was passed. So far as the remaining two rulings are concerned they too are not helpful. Without appealing against the order passed by the Settlement Commissioner a writ was brought which was dismissed by the High Court on the ground that remedy of appeal had not been exhausted. The Supreme Court held in the two rulings that an order passed without jurisdiction is a nullity and it was not necessary to get it set aside formally in appeal. It was also held that the appeal brought against the abnitio void order beyond the period of limitation was not sufficient to disallow the writ petition. Writ is a constitutional remedy and can be availed of legally without exhausting remedy of appeal, in cases where the order challenged is void but it cannot be said in the present case that the order of transfer was without jurisdiction. Rather it is the prerogative of the employers to transfer an employee from one post to the other. Since category of the respondent was changed by the transfer order, therefore, the order was wrong but not without jurisdiction. I cannot agree with the learned labour Court to the conclusion drawn by it to the effect that with mala fide intention and by way of punishing the respondent was transferred to the said section. The person who was appointed as Hammerman in place of the respondent may be related to the General Secretary of C . B . A . Union, but it does not appear that the respondent was transferred to make room for the said person. This is in evidence that the respondent had fitted a wrong joint in the screen pump which was not his duty and which had resulted in stopping the factory for half an hour. For this fault of the respondent his increment was also stopped which was afterwards released on his appeal. The increment was stopped after holding inquiry against him. It appears that by way of taking preventive measures the respondent was transferred to production section in order to avoid repetition of such an act. Such an order may be wrong but cannot be said to be mala fide. If without any reason the transfer of the respondent had been ordered there would have been some scope to hold the view that in order to accommodate Mr. Zulquernain, who is said to be related to the General Secretary of the C.B.A. Union the respondent was transferred to the production section. There is absolutely no D evidence that the General Secretary of the C.B.A. had asked for the employment of Mr. Zulqurnain. There is even no evidence on the point that in reality Mr. Zulquernain is related to the General Secretary. Such a suggestion given to R.W.1 was repelled back. So even if for the sake of argument it be admitted that where an order is mala fide no period of limitation starts, there being present no element of mala fide the learned labour Court was not justified in ignoring the fact that the grievance notice was time‑barred.

6. I also cannot endorse the view of the learned labour Court that provision of service of grievance notice within three months of the accrual of cause of action is optional and not mandatory. Word 'may' has been used because it is the option of the worker to challenge or not to challenge the order passed against him. But it does not mean that where a worker intends to challenge the order he may or may not give grievance notice or he can give grievance notice beyond three months. If word 'shall' had been used it would have been meant that it was incumbent upon the worker to challenge the order passed against him which is absurd and interpretation which leads to absurdity cannot be made. No doubt in section 26 I.R.O. word 'may' is used and the Supreme Court has interpreted it to mean that period of 7 days within which strike notice is to be given is merely directory and not mandatory, but a grievance notice is quite different in nature from strike notice. A demand notice and the Chart of demand is already with the employer, in the said case, therefore, he knows that an Industrial dispute has come into existance, whereas the employer before receiving grievance notice has no intimation if the worker is particular about the order passed against him. So by means of a strike notice only an intimation is given to the employer that if the demands are not acceded to, the workers intend to go on strike. The period of 7 days, therefore, is merely directory and not mandatory but grievance notice is a mandatory provision in cases where the worker elects to challenge the order passed against him. The Supreme Court has held that a grievance notice sent by lawyer is illegal as the word 'himself' occurs in section 25‑A clause‑I. If the provision of service of grievance notice had only been directory it would have been immaterial whether the grievance notice had been signed and sent by the lawyer or by the worker himself.

7. The last point argued by the learned counsel for the respondent is that the appeal cannot proceed since the order of the learned labour Court was implemented on 22‑10‑1986 by transferring the respondent back to his previous post. This argument is also devoid of force. In order to avoid proceedings of contempt of Court an F order may be complied with and rule of estoppel in such cases does not become applicable. However in cases where the parties have come to terms after the decision of the grievance petition and either before or after lodging of the appeal, the appeal cannot proceed. I, therefore, hold that the appellant is not precluded from pursuing the appeal.

8. As a result the appeal is accepted and setting aside the~; impugned decision, grievance petition is dismissed on the ground that grievance notice was time‑barred. A.E. /305/Lb. P Appeal accepted.