1981 PLP 293 (PLC)

Zulfiqar Ali, appellant, was appointed as a Record‑keeper in Premier Tobbaco Industries Ltd., Mandra in 1972. In 1974 he was involved in a murder case under section 302, P. P. C., on account of which he was arrested on 28‑12‑1974. He remained in Jail till 30‑4‑1978, when he was acquitted in the said murder case. During his confinement in jail, the Management vide their memorandum No. MA/ADMN/GEN/3423, dated 25‑7‑1975 (Exh. R‑2) terminated his services on payment of one month's salary in lieu of notice. The termination order is reproduced below :‑ "You are involved in a charge of murder and you are presently confined to jail since 28‑12‑1974. The Management cannot be expected to keep you in employment. Your services are, therefore, terminated on pay ment of one; month's salary in lieu of notice. You are requested to authorise your nominee to collect your legal dues including notice pay on any working‑day." The above order was sent under registered cover A/D to the appellant at .his home address as well as through the Superintendent Jail, Rawalpindi, where he was at that time confined. It may be observed here that the appel lant in his own statement before the Labour Court has admitted that he was delivered the termination letter (Exh. R‑2) on 25‑7‑1975. After his release from Jail, the appellant on 11‑5‑1978 submitted an applica tion to the Factory Manager to re‑instate him in service. Vide letter No. MF/ ADMN/GEN/1/5261, dated 29‑8‑1978 (Exh. A‑2), the Management gave the following reply to the appellant :‑ "With reference to your application dated 11th May, 1978 which has received consideration at appropriate level, you are hereby informed that your services were terminated on 25th May, 1975, allowing you one month's salary in lieu of notice. That since your grievance notice has become hopelessly time barred the same is hereby filed." The appellant treating this application dated 11‑5‑1978 as grievance notice, filed a petition under section 25‑A of the Industrial Relations Ordinance, 1969 before Punjab Labour Court No. 6, Rawalpindi on 27‑9‑1978. An application under section 5 of the Limitation Act for condonation of delay was also filed alongwith the grievance petition. The Management opposed this petition by raising several preliminary objections as well as on permits. The appellant appeared as his own witness before the Labour Court, while the Management produced Muhammad Kamal, Personnel and Welfare Officer as R.W‑

1. The Labour Court vide impugned decision dated 17‑2‑1980 dismissed the petition by holding that it was hopelessly barred by time and there was no reason for condonation or delay caused in the case. The Labour Court also considered the case on merits and came to the conclusion that the Management was justified in terminating his services in the circumstances of the case. Feeling aggrieved with the impugned decision of thr Labour Court, Zulfiqar Ali, appellant, has filed the present appeal.

2. I have heard at length the counsel for the parties and have also perused the entire material available on the record.

3. It is contended by the learned counsel for the appellant that the grievance petition of the appellant was not barred by time and the Labour Court has erroneously held it as such. Relevant provision in this regard, which requires consideration is the proviso to subsection (4) of section 25‑A of the Industrial Relations‑ Ordinance, 1959, which is reproduced below :‑ "25‑A.‑(4) If the employer fails to communicate a decision within the period specified in subsection (2) or, as the case may be, subsection (3), or in the worker is dissatisfied with such decision, the worker or shop‑steward may take the matter to his Collective Bargaining Agent or the Labour Court, as the case may be, the Collec tive bargaining agent mat take the matter to the Labour Court, and where the mater is taken to the Labour Court it shall give a decision within seven days from, the date of the matter being brought before it as‑if such matter were in an industrial dispute: Provided that a worker who desires to so take the matter to the Labour Court shall do so within a period of two months from the date of the communication of the employer or, as the case may be, from the expiry of the period mentioned in subsection (2) or subsection (3), as the case may be." A perusal of the above shows, that a worker is required to file his grievance petition before the Labour Court within a period of two months from the date of communication of the employer in respect of his grievance notice, or from the expiry of the period of 15 or 7 days under subsections (2) and (3), as the case may be. In the instant case, the grievance notice was served on 11‑5‑1978, which was replied by the Management on 29‑8‑1978 and the grievance petition was filed before the Labour Court on 27‑9‑1978. According to the learned counsel for the appellant, the period of two months mentioned in the above proviso should be reckoned from 29‑8‑1978, the date of communication of employer. On the other hand, the argument of the counsel for the respondent Industries, is that the period of two months should be counted from the expiry of 15 days after 11‑5‑1978, as mentioned above in the proviso. According to him, the communication of the employer in this case should be ignored as it was conveyed after the expiry of 15 days given in subsection (2) of section 25‑A. In such a situation, where the employer communicated his decision beyond the period of 15 days, we have to see as to from which elate the period of two months is to be reckoned‑from. The data of communication of the employer or from the expiry of 15 days of the service of grievance notice, let us carefully examine the language used in the proviso reproduced above. The words "within a period of two months from the date of communication of the employer or, as the case may be, from the expiry of the period mentioned in subsection (2) or subsection (3), as the case may be" show that the period of two months shall be counted either from the date of communication of the employer or from the expiry of the period of 15 or 7 days under subsections (2) and (3), as the case may be. The employer can communicate his decision within the prescribed period of 15 days or 7 days as the case may be, or he can do so even after the expiry of the said periods as there is no legal bar for him to do so. In the instant case, the employer admittedly did not communicate his decision within the pres cribed period of 15 days, but long after the said period i.e. on 29‑8‑1978. The employer cannot take advantage of his own fault in communicating his decision after the prescribed period. The word 'or' is significant enough and has been used disjunctively. In other words, there are two different situations to count, the period of two months‑one from the date of com munication of the employer whether within or after 15 days, and the other froze the expiry of the period of 15 or 7 days, respectively. Keeping in view the true spirit and object of the Labour Laws, out of the two situations men tioned in the above proviso, one favourable to the worker should be preferred. Thus, if under one part of the proviso, the grievance petition is barred by time, while under the other part it is within limitation, the worker shall get the benefit of the one, which goes in his favour and the opposite‑party cannot urge that the petition should be dismissed as 'it is barred by limitation under the other part of the proviso. If the employer communicates his decision after or within the' prescribed period of 15 days or 7 days under subsections (2) and (3), as the case may be, then the period of two months should com mence from the date of communication under the first part of the proviso. If however, the employer fails to communicate his decision at all, then the period of two months should commence from the date of expiry of 15 or 7 days, as the case may be. Since the employer in the instant case has communicated his decision long after the expiry of the period of 15 days, he cannot claim benefit of his own negligence and in that situation, the period will be reckoned from the date of communication of his decision, although it is beyond the prescribed' period given under subsections (2) and (3).

4. The upshot of the above discussion is that since the employer com municated his decision on 29‑8‑1978, long after the prescribed period under subsection (2), the period of two months Shall be reckoned from that date, i.e. 29‑8‑1978, under the first part of the proviso and the second part of the proviso would not be attracted to the facts of the instant case. In this view of the matter, the grievance petition of the appellant was admittedly within time and the Labour Court was not justified to treat it as barred by time. Accordingly, that finding of the Labour Court is set aside.

5. As mentioned above, on merits the Labour Court found that the appellant had no case. After giving my anxious consideration to the facts of the case, I am of the view that in the circumstances of the case, the employer was fully justified to terminate the services of the appellant with one month's salary in lieu of notice. The employer was not bound to wait indefinitely for the appellant's release from Jail as at that stage the result of the murder case could not have been enticipated and it could not be definitely said as to when the appellant would be available for his duty. The Management could not afford to keep his post vacant or fill it temporarily for such an indefinite period. Similarly, the employer is not bound under the law to re‑instate such an employee after his release from jail after such a long period. It is purely the discretion of the employer to re‑instate such an employee or not. Such employee cannot claim re‑instatement as of right. In these circumstances, the Labour Court has rightly dismissed the grievance petition of the appellant on merits.

6. The result is that this appeal is dismissed. Appeal dismissed.