1988 PLP 573 (PLC)

1985 P L C 1053 ref. H. R. Haider for Appellant. Sajjad Hussain for Respondents. Date of hearing: 24th May, 1986. The decision dated 12‑12‑1985 recorded by the learned Presiding Officer, Punjab Labour Court No.5, Faisalabad has been challenged, whereby the grievance petition of the appellant has been dismissed as time‑barred. On merits the learned lower Court held that the age of superannuation was 60 years.

2. The previous petition was withdrawn with permission to bring fresh one as it had not been properly presented. It has been held by the learned lower Court that section 14 of the Limitation Act is not applicable. Reliance has been placed upon Rules 1 and 2 of Order XXII I.C.P.C. This is true that where cases are withdrawn with permission to bring fresh one under Order XXIII, Rule 1, it is to be considered for the purpose of limitation that the previous suit did not exist, but firstly the provisions of C.P.C. are not applicable to the labour cases and it cannot be said that the appellant withdrew the grievance petition under Order XXIII, Rule

1. If the learned lower Court adopted the procedure given in Order XXIII, Rule 1, Rule 2 had no binding force which it has when cases are withdrawn under rule

1. Again the plaintiffs always are at fault in not bringing the suits in the proper form or before the Court of competent jurisdiction, therefore, in order to save the right of the other party which has accrued to it by lapse of time, the provision is that the previous suit would not be deemed to have come into existence. In labour cases the matter is quite different. The appellants cannot be said to be guilty of any mala fide intention. Before the High Court held that the grievance petitions could be presented by the workers themselves, the petitions presented by the lawyers were being entertained and finally adjudicated upon. I had held the same view but the High Court set aside the decision of this tribunal and held that the petitions presented by the lawyers are not proper. Due to the development of case‑law, the presentation of petitions by the lawyers stands defective, therefore, the workers are not at fault. Unless it is shown that with mala fide intention the petitions were presented by the lawyers, by no stretch of imagination can it be said that section 14 of the Limitation Act in such cases does not apply. Learned lower Court has wrongly said that the forum should be different in the previous case in order to attract the application of section

14. Clause 2 of section 14 reads as under:‑ "In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceedings whether in a Court of first instance or in a Court of appeal against the same party for the same relief, shall be excluded where such proceedings are prosecuted in good faith in a Court which from the defect of jurisdiction or other cause of a like nature is unable to entertain it." It is clear from section 14(2) that necessarily the Court may not be different. The words 'or other cause of like nature' show that any other cause for which the Court has no jurisdiction, can be a ground for the application of section

14. If previous proceedings suffer from any defect due to which the Court has no Jurisdiction, by removal of the said defect, the same Court can become competent to decide the case. The same is the case here. Since the previous petition was not presented by the appellant himself, therefore, its presentation being improper, the Court could not adjudicate upon it. After the appellant himself presented the fresh petition removing the defect, the same Court had become competent to give decision. Thus, the conditions laid down in section 14(2) were fulfilled in the present case and by no stretch of imagination it can be said that the section was not applicable. The case, therefore, was wrongly dismissed as time‑barred.

3. So far as the age of superannuation is concerned, the learned lower Court has held that the same is 60 years. No cross‑objections have been filed on behalf of the respondent against the said finding.

4. It has been argued by the learned counsel for the respondent that on 15‑10‑1984 when the appellant was retired he ceased to remain in service and was not in service at the time he had brought the grievance petition. Learned counsel for the appellant has argued that since such a point was not raised before the learned lower Court and there are no cross‑objections, during arguments such a point cannot be raised. This is purely a legal point and since according to the ruling of the High Court reported in 1985 P L C 1053, an employee who is no longer in service ceased to remain workman, there is no other alternative but to hold so. No question of fact is involved for which it may be said that such a point should have been raised in the pleadings. The appellant has got an opportunity to lead arguments on the point and his counsel has been heard but he has not been able to say that the appellant was a workman on the date on which he had brought the previous petition. The date of the previous petition is 4‑2‑1985, whereas the appellant was retired with effect from 19‑9‑1984.

5. As a result, the appeal fails and is dismissed. But it is directed that if the Supreme Court where the question of jurisdiction of labour Courts is sub judice holds that such Courts have jurisdiction in such matter the appellant will be entitled to reinstatement without back benefits and will serve till reaching the age of 60 years. He has not been allowed back benefits as he did not assert that after retirement he remained out of Job. A. E. /113/Lb.P Order accordingly.