1. This petition calls in question the order passed by the Labour Court No. VI, Hyderabad on 13-7-1974.
2. The petitioner was an employee of the respondent Bank and his services were terminated on 16-7- 1271 without any notice. The petitioner filed an appeal before the General Manager of the Bank on 12-6-1978, but it was rejected and the rejection was communicated to the petitioner on 7-2-1973 and on 2nd March, 1973 the petitioner filed application under section 25-A of Industrial Relations Ordinance before the Junior Labour Court without giving any notice as required under section 25-A
(1) of Industrial Relations Ordinance of 1969. On 30-5-1973 the Junior Labour Court ordered the re- instatement of the petitioner. The respondent Bank filed an appeal before the Labour Court on 15- 6-1973 and he allowed the same on 13th of July 1574 on the ground that grievance procedure as prescribed under section 25-A of Industrial Relations Ordinance was not followed. I have heard Mr. Ali Nazar for the petitioner. The respondent and their counsel were called absent in spite of notice to the learned counsel.
3. Mr. Ali Nazar has raised many contentions. He says that the compliance with grievance procedure was not necessary as it is merely directory and not mandatory. I do not agree as the view of this High Court has been that grievance procedure under section 25-A (1) of Industrial Relations Ordinance of 1969 was mandatory and lack of notice under section 25-A (1) to the employer vitiates the proceedings.
4. In the alternative Mr. Ali Nazar stated that the appeal filed by his client before the General Manager of the Bank should be treated as grievance notice. This is correct and I am quite inclined to treat the appeal before the Manager as grievance notice but again difficulty which comes in the way of Mr. Ali Nazar is that the said appal was filed 11 months after the dismissal and hence it was breach of section 25-A (1) of Industrial Relations Ordinance which requires the grievance notice to be issued within three months of the day on which cause of grievance arises. Therefore, even the appeal to the Manager is treated as grievance notice it was barred by time and hence could not be treated as compliance of section 25-A (1).
5. Lastly Mr. Ali Nazar contended that the appeal before the Labour Court was filed on 15-6-1973, while the order of the Junior Labour Court was passed passed on 30-5-1973, therefore the appeal was filed on the 16th day of the order while under section 36-D of Industrial Relations, Ordinance, the appeal could be filed within 15 days of the delivery of the order. This appeal was alleged to be time barred and order of 30-5-1973 would therefore be final. This point is being urged in this petition for the first time. The question of limitation is a question of law and can therefore be urged at any time.
6. But in this case, the question of limitation is a mixed question of law and fact as learned counsel is relying on the fact as to who obtained the copy of the order of Junior Labour Court. The, learned counsel contends that the respondent did not apply for any copy to the Junior Labour Court and the respondent merely utilized the copy which had been supplied by the petitioner to them for the purpose of re-instatement. Therefore, he contends that the one day which was taken obtaining the certified copy by the petitioner could not be excluded from the time in which the appeal was filed by the respondent as they had not made any application for copy nor did they obtain any such copy and therefore under section 12 of the Limitation Act, the time requisite for containing a copy could not be allowed to respondent while considering whether the appeal was within time or not.
7. The counsel relies upon the file of the Junior Labour Court where it is noted that no one else except the petitioner had made any application for obtaining a copy of the order of the Junior Labour Court. Therefore there is some basis for the argument of the counsel. Since this substantial point raised by they learned counsel might go to the root of the case, but since the facts pertaining to the same have not been gone into by the Labour Courts and the respondent has to be afforded an opportunity to meet that allegation therefore it would be necessary that the same should be considered and decided by the Labour Court itself after allowing both the parties opportunity to substantiate or controvert the allegations and to lead evidence if necessary in making or meeting the point. The impugned order is therefore set aside on the ground that there has been a failure to consider the question whether the appeal had been filed within time or not and conse--quently the case is remanded to the Labour Court for considering whether the appeal was filed within time or not and whether it could be entertained.