2021 PLP 134 (PLC)

NOOR ZAMAN, MEMBER.

The petitioner was employed as Driver on 27-04-2007 in the respondent University in pay Group-3. On 01-04-2019 the respondent issued employment contract, where it was mentioned that he is appointed as MTD with effect from 1st April, 2009 and will continue service till he remains medically fit. On 01-07-2014 he was promoted from pay Group-3 to Pay Group-4. The petitioner has been released from service on 05-06-2018. Being aggrieved of the Relieving order, the petitioner filed Writ Petition No.2376/2018 in the Islamabad High Court. The petition was dismissed vide order dated 14-05-2019 on grounds of maintainability. The petitioner filed the instant petition on 06-09-2019.

2. On notice the Respondent University submitted an application under Order VII, Rule 11 on 20-11-2019 for dismissal of petition and subsequently also filed reply on 07-04-2020, wherein some preliminary objections have been raised. The case was fixed for arguments on preliminary objections on 29-06-2020 and then adjourned to 22-07-2020 as last opportunity to parties to present arguments.

3. Learned counsel for the respondent stated:

1. That the petition is hopelessly time barred as the petitioner was relieved from service on 05-06-2018, but he filed this petition on 06-09-2019 which is delayed by more than one year, while Section 33 of IRA, 2012 stipulated 90 days for service of grievance notice.

2. That Bahria University is a public sector university established under Bahria University Ordinance, 2000 and according to subsection (1) of Section 4 of the Ordinance, the purpose of the university is promotion and dissemination of knowledge and technology and to provide for instructive, training, research, demonstration and service in such branches of learning as the Board may deem fit. That the respondent University is not a Commercial Establishment as it is not generating profit. Learned Counsel relied on judgment reported in 1981 PLC 403, where it was held that University and Board of Education indulged in contribution of learning, research, study, knowledge of man of letter benefit while a student gets or communicating at large research from University is completing different and distinguishable from benefits of service which provide community with use of something such as, Hotel, electric power, transport, mail delivery etc. the university and board of education was declared to be not "industry".

3. That the NIRC in Case No.4B(74)/2012 titled Mukhtar Ahmed v. Bahria University has already declared that Bahria University does not fall within the ambit of industry or establishment as defined in IRA, 2012.

4. That the Ordinance, ibid provide remedy against any order passed by any officer of the University. The aggrieved person can under Section 33 of the Ordinance ibid prefer appeal to Board. That the petitioner has not availed this remedy.

5. That the petitioner filed Writ Petition No.2386/2018 in Islamabad High Court on the same issue which was dismissed on merit. Hence, he cannot raise the same issue before any other Court.

6. That the petitioner has not served grievance notice.

4. The learned counsel for the petitioner appeared in chamber and reiterated contention mentioned in his reply to the application under Order VII, Rule 11 of C.P.C. and highlighted that:- 1. the petitioner invoked constitutional jurisdiction of High Court but the Hon'ble High Court rejected the petition on maintainability and held that High Court has get no jurisdiction to entertain the petition. The High Court dismissed the petition on 14-05-2019 and the petitioner served grievance notice and then approached this Commission within time.

2. That the release order is void order therefore, limitation would not run against void order.

3. That the petitioner is workman under Compensation Act and Motor Vehicle Ordinance, 1965 and Factory Act, 1934.

4. Application for dismissal of petition under Order VII, Rule 11 of C.P.C. is not maintainable under IRA, 2012 as there is no such provision. He relied on 1981 PLC 403, 1995 PLC 667 and 2016 PLC 358.

5. That the Hon'ble Supreme Court held in 2016 PLC 97 and 2019 SCMR 648, that teachers and a driver of the office of Deputy Commissioner are workmen.

6. The Bahria University is a commercial subsidiary of Bahria Foundation as per website of the Bahria Foundation.

5. Arguments heard and record perused.

6. Admittedly the petitioner was issued notice on 05-06-2018 that he will be relieved of his service after one month under his contract agreement due to his negative attitude. Reason for release from service has been indicated as "Negative attitude" which is misconduct and any employer though on contact or daily wages who served for more than 9 months or permanent nature of job only be removed, retrenched etc. under misconduct, after holding proper enquiry against him. However, after release for service the petitioner should have come to NIRC for redressal under section 33 of IRA, 2012 but he approached Hon'ble High Court without giving reason that under what circumstances he filed writ petition in Islamabad High Court.

7. Superior courts have settled in 2016 PLC (C.S.) 195; 2010 PLC (Labour) 104; 2007 SCMR 1446; 2003 YLR 1837; PLD 2004 AJ&K 38; PLD 2005 Lah. 129; PLD 1958 (W.P.) Lah. 936; PLD 2005 Lah. 129; 2013 CLC 403; and 2003 YLR 1837 that the law of limitation is a statute of repose, designed to quieten title and to bar stale and water-logged disputes and to be strictly complied with. That statutes of limitation by their very nature are strict and inflexible. Law of limitation does not confer a right; it only regulates the rights of the parties. That there was no scope in law of limitation for any equitable or ethical construction. That justice, equity and good conscience did not override the law of limitation. That object of law of limitation was to prevent stale demands and so it ought to be construed strictly. That the hurdles of limitation could not be crossed under the guise of any hardships or imagined inherent discretionary jurisdiction of the court. That ignorance, negligence, mistake or hardship did not save limitation, nor does poverty of the parties;

8. In the instant case the grievance petition has been filed after more than one year of cause of action. In application of condonation just a reference has been made that due to ill advice of the counsel the petitioner approached wrong forum without giving reasons for such advice. The Honourable Supreme Court laid down dictum in Judgment reported in PLD 2016 SC 872; titled Khushi Muhammad through LRs and others v. Mst. Fazal Bibi and others that; Mistaken advice of counsel did not automatically and per se constitute a sufficient cause for condonation of delay as a matter of course and routine, rather, the appellant had to specify the reasons with clarity and precision which prevailed with the counsel and led him to commit the mistake and such application must also be supported by an affidavit. That mere incompetence of the counsel, inadvertence, negligence or ignorance of law attributable to him and/or overlooking of the record by the counsel could not constitute sufficient cause ipso facto, but the factor(s) which misled the legal counsel, including any ambiguity in the law, causing him to file the appeal before the wrong forum must be indicated

Appellant had to establish that due to some honest, bona fide and genuine ambiguity in the law or in fact, a party or his counsel was led astray in terms of approaching a wrong forum. That poor advice by a counsel may well cause hardship to a litigant and compromise his ability to seek redress in law. But hardship caused to a person on account of poor advice of counsel did not constitute a sufficient cause for condonation of delay per se.

9. In the instant case the petitioner or his counsel have not indicated the factors which misled the legal counsel, including any ambiguity in the law, causing him to file the Writ Petition before the wrong forum. The petitioner was aware that the service regulations of Bahria University are non-statutory and Constitutional jurisdiction of High Court cannot be invoked in such cases. Even if, for the sack of arguments, approaching wrong forum is considered sufficient came for condonation, even then the petitioner took more than 90 days in filing petition in the NIRC without service of grievance notice which is qua non for petition under section 33 of IRA, 2012. The grievance notice placed at page 30 of the petition is undated and not supported by proof of service. It is also worth mention that the Hon'ble High Court while dismissing the petition also touched merit of the case and remarked that: "Record further reveal that petitioner was given eight different warnings regarding his discipline issues, even then he used to drive in reckless manner but despite clear warnings he has not mended his ways"

10. In view of above the petition is not maintainable on grounds of limitation as well as non-service of grievance notice. The petition is dismissed. There is no orders as to cost. File be consigned to R.R. SA/4/NIRC Petition dismissed.