1976 PLP 242 (PLC)

S. 34 read with Limitation Act (IX of 1908), S. 5-Limitation Condonation of delay-Application for condonation not filed alongwith main application but presented after about 21 years on plea of illness of counsel-No medical certificate produced-Conduct of applicant suggesting endeavour to deliberately suppress fact of delay Condonation of delay, in circumstances, held, not justified. P L D 1961 Kar. 231, A I R 1929 Sind 206, A I R 1914 All. 521 and A I R 1910 Pat. 336 rel. (d) Industrial Relations Ordinance (XXIII of 1969)

S.34

Individual workman challenging termination of service --Application framed in nature of declaratory suit-Application, held, not competent-Section 34 can be invoked for enforcement of guaranteed or secured right only. Hassan Hameedi for Applicant. A. A. Shareef for Respondent. By present petition applicant is seeking declaration that order of his termination dated 29-10-1070 is illegal and inoperative and that he still continues to be in the service of the respondent and is entitled to the wages and other benefits for the intervening period. Case of the applicant is that he was a permanent employee of the respondent and also an office-bearer/active member of Esso Pakistan Fertilizer Employees' Union Daharki. Grievance of the applicant is that he has been victimized for his Trade Union activities. That when on 23-9-70 the respondent charge-sheeted two workers on a lame excuse and suspended them without waiting for the reply of the charge-sheets, the Union took up the cause of these workers. But on 24-9-70 respondent locked out the factory. Respondent also filed an application under section 34 read with section 45 I. R. O. 1969 seeking prohibition of an alleged illegal strike but later on this application was withdrawn. 'That subsequently respondent got three office-bearers of the Union arrested by Police. They were baled out by Sessions Judge Sukkur on 12-10-70. That on 19-10-70 respondent served charge-sheet upon him and other office-bearers and active members of the Union. That reply of these charge-sheets was submitted on 22-10-70. That respondent thereafter informed him about the enquiry which was to be held on 23-10-70. That during enquiry he raised objection against its legality and the partial attitude of the Enquiry Officer, by giving an applica tion. However, on 29-10-1.970 respondent terminated his services without seeking prior permission of the Labour Court under section 47 of I. R. O. 1969. That on 9-11-1970 he submitted an appeal to the respondent in the shape of grievance notice which was turned down by order dated 25-11-70. That on 16-1-71 present petition was filed by him. Respondent has pleaded that the application as framed was misconceived and not maintainable. That the application was beyond the ambit of section 34, I. R. O. 1966. That applicant had no subsisting guaranteed right on the date when the application was filed. That the claim of the applicant if any under the provisions of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 had already become time barred and as such the present application which was purported to be under section 34, I. R. O. was liable to be rejected. Respondent has denied that the applicant has been victimized in any way. It has been claimed that on 23-9-70 two workmen of mechanical department were assigned to do work of raising a fence which included fixing of poles in the ground. That those two workmen refused to carry out the said work on the ground that the inci dental work of digging holes was not their job. The workmen were informed that their refusal was not justified as it was part of their normal duties and also in accordance with their job description. They were also told that same work has been done by them, on the preceding day i.e. on 22-9-70. When in spite of persuation these workers refused to do the work respondent was compelled to take disciplinary action against them. That on the same day i.e. 23-9-70, the General Secretary of the Union demanded immediate withdrawal of -the disciplinary action against those workers, failing which the General Secretary threatened the company with strike and dire consequences. That on 24-9-70 applicant incited the workmen to strike work and commit acts subversive of discipline. That as a result of this action respondents were confronted with the danger of total Illegal Strike and serious damage to the machines. Consequently respondent was left with no alternative but to declare the lockout with effect from 25-9-70 and such notice posted on the notice boards. Such intimation was also sent to Labour Directorate and District Civil Authorities. As soon as it appeared that striking workers were ready resume the work respondent lifted the lock out at 11 a. m. on the same day. Still the illegal strike continued Therefore, on 29-9-70 respondent filed application of section 34 read with S. 45 I. R. O. before Labour Court. On 2-10-70 the illegal strike was called off in pursuance of an agreement dated 2-10-70 and work was resumed. That respondent decided to charge-sheet those worker who were the leader and authors of the illegal strike and who had indulged in riotous and disorderly behaviour. That on the appointed date and time the Enquiry Officer commenced the enquiry proceedings. The applicant appeared before the Enquiry Officer but wilfully refused to participate in the enquiry proceedings and walked out of the venue of the enquiry after recording certain answers. Though enquiry could have proceeded in the absence of the applicant nevertheless the enquiry was adjourned and yet another opportunity was given to the applicant to participate in the enquiry and produce his defence. But applicant did not appear before the Enquiry Officer nor applied for the postponement of the enquiry. As a result of the enquiry, the applicant was found guilty of charges and accordingly services of the applicant were terminated. That applicant sent the grievance notice in the form of an appeal. In reply applicant was informed that his dismissal, was valid and justified. That no permission according to section 47, I. R. O was required from the Labour Court because neither any industrial dispute was raised nor soy industrial dispute was pending. The other facts of the case are that on 20-6-73 counsel for applicant moved an application under section 5 of the Limitation Act praying for the condonation of delay in filing of the application. This petition has also been resisted by the respondent side. The points which require adjudication are (i) Whether the petition was time-barred? (ii) Whether the delay in filing the application could be condoned? (iii) Whether the application was not maintainable? The applicant at the most had a right under West Pakistan Industrial and Commercial Emplo3ment (Standing Orders) Ordinance, 1968, to complain against his alleged illegal dismissal. Consequently, he could seek enforcement of this right only by making application under Standing Order 8(b) of the Ordinance within required time after adhering to required procedure and comply with the pre-conditions. Since Industrial Relations Ordinance of 1969 was already in force, when applicant was dismissed from service he had two remedies open to him against his termination i.e. either to file the application under West Pakistan Industrial and Commercial Employment (Standing Order) Ordinance, 1968, or to file an application under section 34 of Industrial Relations Ordinance, 1969. However adherence to the provisions of Standing order 18 remained mandatory, even if application was to be filed under section 34 I. R. O., 1969 in an authority reported under 1973 P L C 1, it has been held by his Lordship of High Court of Sind Baluchistan that provisions of Standing Orders 18 were to be strictly construed. Even otherwise the consensus of legal opinion of Labour Courts is that application of an individual workman under section 34 I. R. O. against the infringement of right guaranted by West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1969, is to be filed within required time after complying with the procedure prescribed by West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. In this connection authorities reported under 1971 P L C 157 and 1972 P L C 261, 416, 353, 576, 274 and 60 are relevant. It has been held that in any case the application was to be filed within 60 days from the date of the service of grievance notice on employer. Thus in the present matter the application under section 34, I. R. O. had to be filed up to 4-1-1971, because grievance notice in shape of appeal had been given on 5-11-1970. But the present application was filed on 16-1-71, Thus it was clearly time-barred. Before discussing the factual aspect which would decide the question of the condonation of delay, it is pertinent to note that every case is to be decided on, the law as it stood when the same is filed. Section 65 (B) I. R. O., 1969, by which the provisions of section 5 of the Limitation Act were made applicable was introduced by Ordinance No. IX of 1972. Thus when the present applica tion was filed there was no provision under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, or under d I. R. O., 1969 for the condonation of delay. Hence section 5 of the Limitation Act could not be made applicable with retrospective effect to the present application. In this connection authorities reported in P L D 1967 Kar. 445 and 1968 P L D Kar. 107 are relevant. I therefore find that under law there was no provision for condoning the delay in filing the present application. For arguments sake even if it may be conceded that the provisions of section 5, Limitation Act were attracted still it will have to be seen whether the applicant made out a sufficient cause to claim the benefit of section of the Limitation Act. Before discussing this factual aspect it may be pointed out at the outset that present application is not for the condonation of delay. That it was only after the filing of the legal objections and reply statement when it came to light that the application was time-barred, the petitioner moved an application under section 5 of the Limitation Act. That though the petition was filed on 16-1-71 but the condonation application was filed on 20-6-73 i.e. after a lapse of about 2 years. In short condonation application appears to be an afterthought. The condonation application is supported by the affidavit of the learned counsel which has been repudiated by the affidavit of Mr. Abdul Hafeez, employees' relations assistant of the respondent-company. The learned counsel has stated in his affidavit that in the first week of November 1970 he had been handed over the papers by the applicant. That he intended to file the petition on 16th or 17th December 1970, after his return from Quetta where he had to appear before Civil Judge Quetta on 14-12-70. That at Quetta he had a heart attack. That he was advised by Doctor not to move out from the bed. That he wag only allowed to travel on 14-1-71, that is who he was able to file present petition on 16-1-71. It has been argued by the respondent side that the order passed by District Magistrate, Sukkur on 5-1-71 in a transfer application the copy of which is on record goes to show that on the relevant date the learned counsel was present before District Magistrate Sukkur. In any case if it may be presumed that the learned counsel himself was not present in person and some body else was appearing on his behalf on the relevant date, medical certificate should have been filed to establish the ground or illness. Since no medical certificate has been filed by the learned counsel it would tantamount to no sufficient cause. In this connection counsel for the respondent has relied upon authority reported under P L D 1961 Kar.

231. It has further been argued that negligence of a pleader is the negligence of the party and hence no sufficient cause. In this connection learned counsel for the respondent has relied upon authorities reported under A I R 1929 Sind 206, 207; A I R 1914 All. 521 and A I R 1910 Pat. 336 (338). Even otherwise this is a settled position of law that delay of each and every day has to be explained. It has already been shown that it had not been mentioned in the petition that it was time barred nor delay had been explained. The condonation application was; also filed after a lapse of about 2J years. There is also no explanation why this fact was not mentioned in the application. The counsel for the respondent has argued that this fact was deliberately suppressed in the hope that it might escape detection. In this connection the learned counsel has relied upon an authority reported under A I R 1933 Nag. 210 (220). From the above discussion I find that even otherwise no reasonable had been made out to justify the condonation of the dealy. Hence even from factual point of view there were no grounds for the condonation of delay. This is an admitted position that application under section 34 can only be filed for the enforcement of guaranteed or secured rights. Consequently no application which is declaratory in nature can be filed) under section 34, I. R. O. 1969. The application as framed is in the nature of a declaratory suit. Hence it was not maintainable. In the light of above discussion I find that the application merits no consideration. It is not only time-barred but also not maintainable. Hence it is dismissed.