1995 PLP 403 (PLC)

‑‑‑‑S. 38‑‑‑Appeal‑‑‑Limitation‑‑‑Delay, condonation of‑‑‑Appeal filed by employer against ex parte decision of Labour Court was time‑barred by 5 months‑‑‑Decision of Labour Court though was on merits, but no sufficient proof of service of employee was available on record and who had not been heard by Labour Court‑‑‑Case was remanded by Appellate Tribunal for being heard afresh after giving opportunity to parties to lead their evidence and to decide case on merits after hearing parties. PLD 1967 Dacca 441 ref. Rafiq Ahmed for Appellants. S.P. Lodhi, Representative for Respondent. Date of hearing: 13th February, 1995. This appeal arises from the decision of Labour Court No. VI, Hyderabad allowing the grievance petition of the respondent.

2. The respondent was appointed as Beldar by the appellants at Rs. 600 per month pay with usual allowances in BPS‑

1. It is a case of the respondent that he performed his duties and was attending to his work regularly but he was not being paid his wages on one or other pretext. He had produced a Physical Fitness Certificate also at the time of his appointment but still the payment was refused. He then filed his grievance notice and then his grievance application before Labour Court at Sukkur. The petition was returned to him for presentation before the proper Court and it was again filed before the Labour Court at Hyderabad. Notices were issued to the appellants who were respondents in that petition namely (1) Project Director, SCARP at Nawabshah; and (2) Executive Engineer, Hala. It appears that service was made on the Project Director who sent a copy of his letter to the Labour Court directing Rehmatullah Soomro, Assistant Engineer to attend the Labour Court on the date of hearing but Rehmatullah Soomro did not appear on 27‑4‑1991. It is not clear from the record whether the Executive Engineer, Hala was also served. According to the learned Advocate for the appellant the Executive Engineer was not served. The learned Labour Court waited for two hearings and when there was no appearance on behalf of the respondent project Director or Executive Engineer, the matter was heard and decided on merits without waiting any longer for hearing the other side. The learned Labour Court directed that since the applicant had been removed from service without adopting the procedure laid down he should be reinstated in service with all the back benefits.

3. Against this order the present appellants filed an application before the same Labour Court for setting aside the ex parte decision. This was clearly not an ex parte order only but it was decision on merits which according to section 37(3) and (4) became final and which could not be called in question. The only remedy provided under subsection (3) was an appeal to Labour Appellate Tribunal within 30 days of the delivery of the decision but in this case time was lost in prosecuting legal remedy which did not exist and which was not provided for under the Industrial Relations Ordinance. Ultimately this appeal has been preferred before the Tribunal on 6‑1‑1992 when the decision of Labour Court was given on 11‑7‑1991. This appeal is therefore clearly time?-barred by nearly 5 months. Under section 5 of the Limitation Act if the appeal is presented to wrong Court by mistake then delay caused thereby may be condoned. Under section 5 read with section 14 there is a general trend of decision that the appellant's remedy should not be stultified because they chose to agitate their grievance in a wrong forum. The belated applications in the proper Court filed afterwards were entertained and the delay in filing the same was condoned under sections 5 and 14 of the Limitation Act (PLD 1967 Dacca 441).

4. In the present case the decision by the Labour Court is on merits but there is insufficient proof of service of the Executive Engineer and the appellants party has not been heard by the Labour Court. This case is not accordingly remanded to Labour Court at Hyderabad for being heard afresh giving opportunity to both the parties to lead their evidence and to decide the case after hearing both of them on merits. H.B.T./2423/Lb.S ?????????????????????????????????????????????????????????????????? ??????????? Order accordingly.