2021 PLP 103 (PLC)

GHULAM SIDDIQUE BAZAI, MEMBER.

By this order, we intend to dispose of the above titled appeal filed by the appellant against the respondents under section 58 of I.R.A, 2012, impugning therein the order dated 01-10-2018 passed by Mr. Muhammad Ishaque Notezai, the then Member, N.I.R.C, Quetta Bench in case No.4B(08)/2018-Q, whereby the petition filed by the appellant under section 33 of I.R.A, 2012 was dismissed.

1. Brief facts giving rise to appeal under consideration are that the appellant filed a petition under section 33 of I.R.A, 2012 against the respondents before National Industrial Relations Commission, Quetta Bench contending therein that the appellant was appointed in the establishment of respondents/ United Bank Limited on 09-04-1977 and while serving in the department, he was terminated from service in the month of June, 1989. The appellant challenged the order of his termination before the competent Court of Law and lastly the appellant was reinstated into service without back benefits by the Hon'ble Supreme Court of Pakistan. It was also contended by the appellant that he submitted joining report after reinstatement, but the respondents did not allow him proper dues and also did not fix his salaries and lastly the appellant was retired from service on 15-06-2017, as such, being aggrieved from the act of respondents of not allowing pensionary benefits, monthly pension and also other increments he preferred grievance notice to respondents which was not replied. Lastly following prayer was made in the petition:- "In view of above, it is accordingly respectfully prayed to declare that letter dated 17-10-2017 is contrary to law and set aside and respondents may be directed to allow pensionary benefits and monthly pension as allowed to Noor Muhammad (appointed as Peon and retired as Cashier) and also direct them to allow all the increments, because applicant was reinstated, or any better relief in the circumstances of the petition may also be granted to the petitioner".

2. The respondents contested the petition by filing their written statement mainly contending that the petition is barred by time and as the appellant has accepted the final settlement of dues documents and put his own signatures as well as also furnished undertaking cum indemnity thus he is estopped under the law of estoppel to make any other claim.

3. That the learned Single Bench of N.I.R.C Quetta vide order dated 01-10-2018 dismissed the petition filed by appellant by holding that the petition before the Single Bench is barred by time and law.

4. It was mainly the contention of appellant that neither the appellant was allowed to submit written arguments nor he was allowed to advance the oral arguments and further the appellant was also not allowed to submit the case laws by the Single Bench. It was also contended by the appellant that the learned Single Bench has wrongly held that the appellant's grievance is time barred as in the case of pension no limitation runs. It was further the case of appellant that the respondents have failed to make payment of proper pay to him in accordance with law nor promotion, increment, payments of holidays were allowed to the appellant, but while passing the impugned order, the learned Single Bench did not consider this aspect of the case. Hence, the appellant prayed to set aside the impugned order and allow the petition filed by petitioner before the Single Bench.

5. We have given anxious consideration to the arguments advanced by the learned counsel for the parties and perused the record with due diligence and care. The learned Single Bench dismissed the petition filed by the appellant on two counts i.e. the petition before the Single Bench is barred by time and further the claim of appellant is barred within the meaning of Article 114 of Qanun-e-Shahadat Order, 1984 as the appellant was reinstated into service on 27-11-2015, he was required to agitate his grievance of not receiving proper salaries and dues immediately when he received his first salary after reinstatement i.e. after 27-11-2015, but at the relevant time he did not raise any objection on the salaries being received by him and continued receiving his salaries and dues as allowed by the bank till the date of his retirement i.e. 15-06-2017, whereas the petition was filed before the Single Bench in the month of February, 2018 hence the claim of appellant is barred by time. Furthermore, the claim of appellant is barred by law within the meaning of Article 114 of Qanun-e-Shahadat Order, 1984 as the appellant has accepted the document No.ESD/MAH/326443/2017 with the subject "Final Settlement of Dues-Retired on Superannuation" dated 16th October, 2017 issued by respondents by putting his signatures on the same with the remarks by the petitioner that "I accept as per law", therefore, after accepting such document and acting upon the same, he is estopped under Article 114 of Qanun-e-Shahadat Order, 1984 to deny the truth of such document or to take any plea which is inconsistent with the earlier one.

6. The petition before the Single Bench was also not supported by any application justifying the delay caused in making the claim. It is relevant to mention here that while considering condoning delay ultimate consideration should be to render even-handed justice to the parties, though by and large, a liberal approach is to be taken in the matter of condoning delay. This consideration would not depend upon status of the party namely the Government or the public or private bodies so as to apply a different Yardstick. Even in such cases the condonation of long delay should not be automatic since the accrued right or the adverse consequence to the opposite party is also be kept in perspective. In that background while considering condonation of delay, the routine explanation would not be enough but it should be in the nature of indicating "sufficient cause" to justify the delay which will depend on the backdrop of each case and will have to be weighed carefully by the Courts based on the fact situation.

7. In addition, in the facts of this case, the Hon'ble Supreme Court in numerous cases has observed that the cumulative effect of delay and laches cannot be ignored. The decisions referred to by the appellant's counsel to the facts of this case cannot be applied, inasmuch as the consideration in this case was not merely the explanation for the delay in filing the petition. Though it was contended that the delay is required to be condoned since the appellant is a retired personnel, the nature of proceedings that have taken place thus far would indicate that the matter has been examined at different stages in the earlier litigation and if the grounds on which the appellant was assailing the action of the respondents were to be examined on merits, the appellant ought to have been more diligent in prosecuting the matter before the Single Bench.

8. In the matter of condonation of delay and laches, the well accepted position is also that the accrued right of the opposite party cannot be lightly dealt with. In that regard, rather than taking note of the hardship that would be caused to the respondents, as contended by the counsel, the appellant was reinstated into service on 27-11-2015, he was required to agitate his grievance of not receiving proper salaries and dues immediately when he received his first salary after reinstatement i.e. after 27-11-2015, but at the relevant time he did not raise any objection on the salaries being received by him and continued receiving his salaries and dues as allowed by the bank till the date of his retirement i.e. 15-06-2017, whereas the petition was filed before the Single Bench in the month of February, 2018. in such circumstances, if at this stage the inordinate delay is condoned unmindful of the lackadaisical manner in which the appellant has proceeded in the matter, it would also be contrary to the rights guaranteed to respondents.

9. Furthermore, the appellant has also sworn an undertaking cum indemnity dated 20th September, 2017 whereby affirmed that he has received all the dues against the bank and there is nothing outstanding, so much so, the appellant in the said bond has also affirmed that he would have no other claim against the Bank and also the appellant would be not rightful to make any other claim against the Bank in future.

10. Therefore, taking into consideration all these aspects of the matter, we find no irregularities and discrepancies in the order dated 01-10-2018 passed by the learned Single Bench who was justified in holding that the petition before it was hit by delay and, therefore, the order do not call for interference. In view of this, the appeal in hand is dismissed. File after completion be consigned to record. Given under our hand and seal of the Commission on this date of 08th day of September, 2020. SA/10/NIRC Appeal dismissed.