1992 PLP 371 (PLC)

Representative for Respondents. Date of hearing: 23rd September, 1991. This is an appeal against the order of learned Presiding Officer, Sindh Labour Court No. V, dated 31-3-1991 whereby the grievance petition of the appellant was dismissed on the ground that it was barred by limitation. I have heard the appellant in person and Mr. Mehmood Abdul Ghani for the respondent and have also gone through the record and proceedings of the case.

3. The brief facts of the case are that the appellant was admittedly working in the respondent bank as typist when by letter dated 4-9-1988 he was called upon to explain certain act of misconduct and show cause why severe vide order dated 17-9-1988. In the enquiry -he was allegedly found guilty and, therefore vide order dated 20/27th December, 1988 he was awarded punishment of withholding of one increment and was also issued warning. As. against this order he filed departmental appeal on 27-2-1989, which was decided and rejected, vide order dated 30-12-1989. He gave grievance notice to the respondent on 1-1-1990. Failing to get any redress, he filed grievance petition on 28-1-1990.

4. The grievance application of the appellant was rejected on the ground that cause of action accrued to, him on 27-12-1988 and therefore the grievance notice dated 1-1-1990 and the grievance petition filed thereafter would be time -barred. The contention of the appellant is, that he filed departmental appeal as per rules and therefore the cause of action accrued to him from the date his appeal was dismissed viz. on 30-12-1989 and consequently his grievance notice dated 1-1-1990 and grievance application dated 28-1-1990 would be within time prescribed under section 25-A of I.R.O., 1969.

5. Mr. Mehmood A. Ghani, learned counsel for the respondent contends that it is settled law that the Staff Rules framed by the respondent-bank were not Statutory Rules. It is contended that the period of limitation which according to the I.R.O., 1969 accrued from the date of the impugned order of withholding of increment and warning, could be saved only by statutory provisions and not otherwise. He contends that mere provision of appeal under the Staff Rules would not save this period of limitation. In support he has relied upon the decision of the Division Bench of Sindh High Court at Karachi in case of Gulistan v. Sindh Labour Appellate Tribunal and others 1982 PLC 1008. It may be pertinent to reproduce the relevant portion of the observation of their Lordships: "As regards the contention of the learned counsel for the petitioner that both the Courts below erred in holding that the petition under section 25-A was time-barred, it may be observed that Mr. Muhammad Ahmed has referred to Annexure `B' to the petition, which is a copy of the order dated 20th August, 1979 informing the petitioner that the departmental appeal was rejected. The above order indicates that the appeal submitted by the petitioner was undated. In our view the burden of proof was on the petitioner to show that he had filed the departmental appeal without loss of any time in order to keep the period of limitation intact as provided in section 25-A of the I.R.O. The petitioner had neither before the Labour Court nor before the Sindh Labour Appellate Tribunal made any averment as to the date when the appeal was presented. A worker by filing a departmental appeal after 6/7 months from the date of his dismissal from service cannot enlarge the period of limitation provided for in section 25 A It may be observed that a worker is entitled to exclude the period which may lapse between the date of filing of a departmental appeal and the date of decision thereupon. But in order to exclude the above period he is obliged to show that there has not been any delay on his part in submitting, the appeal to the department However, if the department delays the disposal of an anneal in that event the worker cannot be penalised for the inaction or omission on the part of the department." From the above observation it would be clear that their Lordships have held that the period consumed by the employer in deciding the appeal would be excluded from the period of limitation prescribed under section 25-A of I.R.O. provided the petitioner/workman is able to show that he preferred appeal within time, keeping in view the period of limitation fixed under section 25-A of I.R.O., 1969. In the reported case the petitioner could not prove as to when he filed departmental appeal as his appeal was un-dated. It was held by their Lordships that it was filed after six or seven months of the impugned order. Obviously by that time the period of three months fixed under I.R.O. had lapsed. In the instant case however the impugned order of dismissal was passed on 27-12-1988, whereas the appeal was filed on 27-2-1989, viz. after period of two months of the impugned order but before the period of three months fixed under the I.R.O. expired. This appeal was admittedly decided on 30-12-1989, therefore, the period consumed by the department in deciding the appeal viz. from 27-2-1989 to 30-12-1989 has to be excluded. The grievance notice therefore sent on 1-1-1990 would be within period of limitation prescribed under I.R.O. and so would he the grievance petition filed on 28-1-1990. The impugned order of the learned Labour Court is therefore set aside and the case is remanded back to the learned Labour Court for deciding it on merits after giving opportunity to the parties to lead evidence. The case has already taken more than a year and should be disposed of without any further delay. H.B.T./1979/Lb.S Case remanded.