1982 PLP 342 (PLC)

(b) Industrial Relations Ordinance (XXIII of 1969) ‑ S. 25‑A read with Limitation Act (IX of 1908), Ss. 5 & is Grievance petition before Labour Court‑Limitation‑Period once begun to run‑Does not automatically cease to run during pendency of other proceedings‑‑Employer's application for permis sion to dismiss petitioner workman granted by Labour Court under S. 47 of Industrial Relations Ordinance, 1969‑Petitioner dismiss ed‑Petitioner invoking revision jurisdiction of Labour Appellate Tribunal against decision of Labour Court and obtaining interim order for suspension of dismissal order‑Interim suspension order subsequently vacated during pendency of proceedings before Labour Appellate Tribunal‑Dismissal order becoming effective‑Plea that period during which dismissal order remained suspended be excluded for purposes of limitation‑Rejected‑Provisions of S. 15 of Limitation Act, 1908, held, not applicable ‑Petitioner having not filed grievance notice to employer within prescribed period and consequently filing belated petition before Labour Court‑Petition, in circumstances, held, time‑ barred‑Pendency of proceedings before Labour Appellate Tribunal, held, not a sufficient explanation for condonation of delay. Pakistan National Centre through its Chairman v. Presiding Officer, Punjab Labour Court No. 2 Lahore and another P L D 1976 Lab. 1085 and Mumtaz Khan v. The Chief Settlement and Rehabilitation Commissioner and another P L D 1966 S C 276 rel. Muhammad Zaman Qurashi for Appellant. This writ petition has been directed to challenge the validity of the order dated 20th January, 1982 of the Punjab Labour Appellate Tribunal, Lahore, whereby, the order of the Labour Court, dated 1st November, 1978, re‑instating the petitioner in service with back benefits, was set aside for the reasons that the grievance notice and the petition were time- barred.

2. The facts relevant for the disposal of the writ petition may be briefly stated. Respondent No. 3 filed an application under section 47 of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance), for permission to dismiss the petitioner as some industrial dispute was pending. The Labour Court, in view of the evidence before it, granted permission on 8thOctober, 1977. In consequence, the peti tioner was dismissed from service with effect from 9th October, 1977, for having been proved guilty of the charges of dishonesty/misconduct levelled against him, vide charge‑sheet, dated 23rd December, 1976, and after serving him with a show‑cause notice dated 17th February, 1977 and holding a departmental inquiry, as provided under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The dismissal order dated 9thOctober, 1977 is at Annexure A. The petitioner invoked the revisional jurisdiction of the Labour Appellate Tribunal against the order of the Labour Court dated 8th October, 1977. The revision petition was admitted to a regular hearing and meanwhile, the operation of the order was suspended on 13th October, 1977 (Annexure B). Subsequently, respondent No. 1 also suspended the opera tion of the order dated 9th October, 1977, whereby the petitioner was dismissed from service, vide its order dated 19th October, 1977 (Annexure B/1). The interim stay orders were ultimately vacated by an order dated 14th November, 1977, of respondent No. 1 (Annexure C). The petitioner did not file any grievance petition under section 25‑A of the Ordinance, within the stipulated period, against his dismissal from service with effect from 9th October, 1977, He, however, filed a belated grievance petition dated 16th March, 1978 (Annexure D) in which prayer was made for condonation of delay. The prayer reads thus The petitioner did not receive any reply ‑to the grievance notice and consequently, approached the Labour Court, vide, an application, dated 13th April, 1978, for his re‑instatement in service with full back benefits. It was also specifically prayed in the grievance application before the Labour Court that the delay in filing the petition may be condoned under section 5 of the Limitation Act, 1908, read with section 65‑B‑‑of the Ordinance. The uncertified copy of the petition is at (Annexure E). During the pendency of the proceedings before the Labour Court in pursuance of the application of the petitioner under section 25‑A of the Ordinance, the revision petition filed by the petitioner against the order dated 8th October, 1977, whereby permission was granted to respondent No. 3 under section 47 of the Ordinance to dismiss the petition, was .also dismissed on 24th April, 1978. (Annexure F). Subsequently, respondent No. 2, in view of the evidence on record before;‑ hint; and after hearing the parties, quashed the order of the petitioner's dismissal and directed his reinstate ment in service with back benefits by an order dated Ist November, 1978 (Annexure H). The Labour Court also specifically condoned the delay in filing the grievance petition after the expiry of period of limitation, in that, the order of dismissal was passed on 9thOctober, 1977, but the applica tion before the Labour Court was made on 13th April, 1978. Respondent No. 3, being aggrieved with the order, in question, filed an appeal before respondent No. 1, who, vide his order dated 20th January, 1982, accepted the appeal and set aside the decision of the Labour Court on the ground that the grievance petition of the petitioner was barred by time.

3. The learned counsel for the petitioner submits that the impugned order is without lawful authority, in that, the grievance petition was within time and even if it is assumed to be barred by time, the delay was condoned by the Labour Court in the exercise of its jurisdiction and, therefore, the order of the Labour Court was not open to interfere by the Appellate Court unless the condonation was either fanciful or pur -verse on the face of it. The grievance notice, although,, was time‑barred but a prayer was specifically made to the employer to condone the delay and since in the reply statement before the Labour Court, the employer has not taken a specific objection that the grievance notice served by the petitioner was time‑barred, therefore, the employer, respondent No. 3, was estopped by his conduct to challenge the question of limitation. It is further contended that respondent No. 3 did not specifically take any objection of limitation in the memorandum of appeal and, therefore, the Labour Appellate Tribunal has erred in law in allowing him to raise this question of law. It is also submitted that the petitioner has explained the circumstances in his statement on oath before the Labour Court (Annexure O) for not serving the grievance petition within the statutory period of limitation, as well as, for not approaching the Labour Court within time and that in the absence of any rebuttal from the opposite side, the condonation of delay .by the Labour Court did not suffer from any legal infirmity. This being so, it is submitted that the order of the Labour Court on question of limita tion, ought not to have been interfered with by the Labour Appellate Court. The learned counsel for the petitioner submits that in view of the provisions of clause (a) of subsection (2) of section 29 of the Limita tion Act, the provisions of section 15 of the Limitation Act are applicable to proceedings initiated under the Ordinance. On this premises, it is submitted that since the order of dismissal dated 9th October, 1977 (Annexure A) remained suspended from 19th October, 1977 by virtue of Annexure B/ I upto‑14th November, 1977 vide Annexure C, the time of the continuation of the suspension order ought to have been excluded in computing the period of limitation prescribed for filing the application before the Labour Court. 4. 1 have given my anxious consideration to the submissions made by the learned counsel for the petitioner and find no force in the petition, in that, the provisions of section 15 of the Limitation Act are applicable to suits or application for the execution of a decree. In the instant case, the proceedings have been initiated under the Ordinance and; therefore, the petitioner cannot avail of the benefit of section 15 of the‑4 Limitation Act. In any event, even if the petitioner is granted the benefit of concession during the continuation of the suspension period, is correct that the petitioner made a specific prayer for condonation of delay in filing the grievance petition before the employer but the employer refused to give any reply to the grievance of the petitioner and this tantamounts to reject the prayer of the petitioner.

5. It is settled proposition of law that an appeal is in continuation of the original proceedings and an Appellate Court is competent to pas all orders which the original Court trying the cause ought to have passed. It was within the competence of the Labour Appellate Tribunal permit the petitioner to raise the question of limitation although it was not so specifically pleaded in the memorandum of appeal. In terms o R section 3 of the Limitation Act, it was the statutory duty of the Punjab y Labour Appellate Tribunal to dismiss the grievance petition if the same was preferred after the period of limitation even if the plea of limita tion had not been set up as a defence. Where once time has begun to` run with the dismissal of the petitioner, it does not automatically ceases during the pendency of the proceedings filed by the petitioner under section 47 of the Ordinance. In Prince Ghulam Muhammad Khan v. Settlement and Rehabilitation Commissioner, Hyderabad and Khairpur Divisions and another (1972 S C M R 359). Mr. Hamood‑ur‑Rahman J. (as he then was) observed page 365 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 Labour Tribunal, in view of the evidence before it on record, refused to condone the delay and dismissed the grievance petition. This he was entitled to do and, therefore, such an order cannot successfully challenged in writ jurisdiction. The cause of action arose t; the petitioner when he was dismissed from service. The service of grievance notice to the employer within the statutory period is a condi tion precedent for invoking the jurisdiction of the Labour Court. In the instant case, the grievance notice was admittedly not served on the employer within the period of limitation and, therefore, the petition under section 25‑A of the Ordinance was not maintainable and was rightly dismissed by the Punjab Labour Appellate Tribunal in the' exercise of its appellate jurisdiction. The mere fact that the petitioner D was pursuing his remedy against the order of the Labour Court under' section 47 of the Ordinance is not a sufficient explanation for condona tion of delay. Reference may be made to Pakistan National Center through its Chairman v. Presiding Officer, Punjab Labour Court No. 2, Lahore and another (P L D 1976 Lab. 1085). Reference may also be made to Mumtaz Khan v. The Chief Settlement and Rehabilitation Commissioner and another (P L D 1966 S C 276).

6. In view of the above, the petition fails and is hereby dismissed in limine.