1982 PLP 722 (PLC(CS))

Representation

• ‑‑ S. 25‑A read with Limitation Act (IX of 1908), S. 5‑Limita tion‑Condonation of delay‑Sufficient cause‑Mistaken legal advice by Advocate in order to be a sufficient cause‑Essential require ments: Mistake to be bona fide and must not be due to gross negligence‑Mistake would be bona fide if there controversy on point of law or law thereon unsettled‑Section 25‑A of Industrial Relations Ordinance clearly lays down that grievance petition must be filed within 2 months of receipt of reply to grievance notice No room for any mistake much less a bona fide one on point of limitation, held, exists‑Rule of mistaken advice, held, not appli cable when petition filed much after expiry of 2 months allegedly under wrong advice of advocate.
• Iqbal Afridi for Respondents.
• The services of the appellant S. Shakil Abbas Rizvi were termi nated by the respondents by an order, dated 15th October 1981. The appellant thereupon served a grievance notice on the respon dents vide on 25th October 1981. The grievance notice was replied by the respondents vide their letter, dated 1st November 1981. It is claimed by the appellant that this reply was received by 5th November 1981. Even on the basis of the above statement of the appellant the grievance petition, should have been filed by him by the 5th of January, 1982. However, it is filed on 13th January, 1982, 8 days beyond the period of limitation. The delay in the filing of the grievance petition was sought to be explained on 2 grounds firstly, that the appellant had received legal advice that grievance petitions could be filed within 2,1 months of receipt of reply to the grievance notice, and secondly, that the appellant's Advocate was busy studying for an interview to be held by the Sind Public Service Commission for recruitment of Civil Judges and that this inter view actually took place on 10th and 11th of January, 1982. The learned Labour Court was not impressed with the explanation for delay submitted on behalf of the appellant and accordingly has dismissed his grievance petition as being barred by limitation. Aggrieved by this decision, the appellant has come up to this Tribunal in appeal.
• 2. I have heard Mr. Muhammad Iqbal Malik, Advocate for the appellant and Mr. lqbal Afridi, Advocate for the respondents.
• 3. An affidavit has been filed by Mr. Muhammad Iqbal Malik Advocate, in which it has been admitted that the appellant contacted him for filing of the appeal on 7th January 1982. By that time, limitation for filing of the grievance petition had already expired. As such, unless the delay, which had previously occurred can be satisfactorily accounted for by the appellant, the explanation submitted by Mr. Muhammad Iqbal Malik for the subsequent delay cannot be taken into consideration and would be of no assistance to the appellant. As already indicated, the contention of the appellant is that the delay in the filing of the grievance petition primarily occurred because he has been given wrong advice that the period for filing of grievance petition was 2 months and 15 days from the date of receipt of reply to the grievance notice. Neither the affidavit of the Advocate who is said to have tendered such advice to , the appellant has been filed nor even the name of that Advocate has been disclosed either in the affidavit of the appellant or of Mr. Muhammad Iqbal Malik. There is thus nothing in support of the bare word of the appellant that he was given wrong advice by an advocate as to the period within which the grievance petition can be filed: Moreover, the settled rule is that "mistaken advice given by legal practitioner may in the circum stances of a particular case give rise to sufficient cause within the meaning of section 5 of the Limitation Act although such mistake must be made bona fide and not as a result of gross negligence, "as observed by a Division Bench the Karachi High Court in the case of Evacuee District Trust Committee v. Muhammad lsmail & 2 others (P L D 1978 Kar. 252) A somewhat similar view was taken by the Supreme Court in the case of Nazar Muhammad & another v. Mst. Shadzada Begum & another (P L D 1974 S C 22). The essential require ments for the application of this rule are, first that the advice should b result of a bona fide mistake and second that it must not be due to gross negligence. A mistake would be bona fide if there was controversy on a point or the law thereon was unsettled. In the instant case, the la clearly lays down that the grievance petition must be filed within 2 months A of the receipt of the reply to the grievance notice. There is thus no room for any mistake much less a bona fide one on this point. The advice if at all tendered was patently, wrong advice and not a mistaken advice. The rule of mistaken advice thus would not be applicable in the instant case.

Judgment & Decree