1991 PLP 834 (PLC)

SYED HAIDER ALI PIRZADA, J.

This Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan has been directed to challenge the validity Constitution the order dated 15-10-1989 of the second respondent whereby the order dated 18-11-1988 of the Sindh Labour Court No. III, Karachi, reinstating the petitioner in service with 70% back benefits, was set aside for the reasons that the grievance notice and the grievance petition were time-barred. The facts leading to the filing of the above petition are that the petitioner was employed by the first respondent as a typist and he was promoted to the post of Officer Grade-III in 1975. On 17-3-1983, he was charge-sheeted for remaining un-authorisedly absent from duty from 23-8-1982 and after domestic enquiry, he was ordered to be removed from service vide order dated 2-10-1983 with retrospective effect from 23-8-1981 while he was working in Defence Housing Branch. The petitioner filed appeal before the Bank Executive and the President. According to him, the appeal was finally rejected by the first respondent on 10-7-1986. The Petitioner filed a grievance petition before the Sindh Labour Court, Karachi on 7-8-1986. The first respondent had resisted the petition, both on legal as well as factual issues. The first respondent pleaded that as the grievance petition was hopelessly time-barred, therefore it was liable to be dismissed. The parties led the evidence in support of their respective versions. The Labour Court, after recording the evidence of the parties and after hearing them, ordered the reinstatement of the petitioner with 70% back benefits. The first respondent being aggrieved with the order in question, filed an appeal before the second respondent who, vide order dated 15-10-1989, accepted the appeal and set aside the decision of the Labour Court on the ground that the grievance petition was barred by time The afore mentioned order passed by the second respondent has been assailed through this petition. Mr. Ali Amjad, learned counsel for the petitioner contended that the impugned order is without lawful authority in that the grievance petition was within time. On the other hand, Mr. Noor Muhammad, learned counsel for the first respondent submitted that the petition was barred by time. We have given our anxious consideration to the contentions raised by the learned counsel for the petitioner and find no force in the petition. It is an admitted position that after the petitioner received the order of his removal from service dated 2-10-1983, he admittedly preferred a departmental appeal on or about 11-12-1983 which was rejected and the rejection was notified to the petitioner by the first respondent's letter dated 1-4-1984 (Annexure A/14 to the memo. of Appeal No. KAR-400 of 1988). This letter was despatched vide postal receipt dated 4-4-1984 (Annexure A/14-A to the memo. of Appeal No. KAR-400 of 1988). It appears that the petitioner on or about 27-3-1986 preferred mercy appeal to the President of the first respondent. On or about 29-5-1986 he was informed that the said mercy appeal did not lie and was filed. The petitioner then on or about 13-6-1986 wrote a letter again submitting a copy of the said mercy appeal. On or about 10-7-1986 the first respondent informed the petitioner that the mercy appeal did not lie and has been filed. Without serving upon the first respondent any grievance notice, the petitioner on or about 7-8-1986 filed his petition under section 25-A of the Industrial Relations Ordinance, 1969. The first respondent filed legal objections. The first respondent pleaded in para. 1 of the objections that the grievance petition was barred by time. The letter dated 1-4-1986 was annexed to the objection of the first respondent. It is a well settled proposition of law that an appeal is continuation of the original proceedings and Appellate Court is competent to pass all orders which 'the original Court trying the cause ought to have passed. It was within the jurisdiction of the Labour Appellate Tribunal to permit the appellant to raise the question of limitation although it was not so specifically pleaded in the memorandum of appeal. In terms of section 3 of the Limitation Act, it was the statutory duty of the appellate Tribunal to dismiss the grievance petition if the same was preferred after the period of limitation even if the plea of limitation had not been set up as a defence. In the instant case, the plea of limitation was specifically taken in the written objections. It was specifically taken in para. 7 of the Memo of Appeal. The copy of letter dated 1-4-1984 was annexed with the memo. of appeal alongwith postal registration receipt dated 4-4-1984. In a case reported in 1972 SCMR at page 359, it was observed by the Hon'ble Supreme Court that "whether a litigant draws the attention of the Court to it or not, it is the duty of the Court to apply the correct law." The learned appellate Tribunal, ill view of evidence before it on record, held that the grievance petition was time barred. This, he was entitled to do and, therefore, such an order cannot be successfully challenged in Constitutional petition. It is not disputed that Staff Service Rules of the National Bank of Pakistan contained a provision .for appeal and not repeated appeals or representations. In the light of this factual position, the objection raised on behalf of the petitioner that the grievance petition was filed within time, is devoid of any substance. After having examined the various legal aspects of the case, we have come to the conclusion that the grievance petition filed by the petitioner in the Labour Court under section 25-A of the Industrial Relations Ordinance. 1969 was not legally competent. The second respondent has rightly applied the correct law and admitted facts. The result is that we do not find any merit in this petition. The tame is dismissed. However, there will be no order as to costs. The above are the reasons for the short order dated 17-1-1991 dismissing the petition on conclusion of arguments. H.B.T,/K-254/K Petition dismissed.