1. ' MRS. YASMEEN ABBASEY, J.--- Being aggrieved with the order of learned Labour Court in Case Nos.38 and 39 of 2003 dismissing the grievance applications of appellant on the point of limitation, this appeal was preferred.
2. ' For the proper appreciation of the case, it would be beneficial to narrate the brief history of the case.
3. ' Case of appellant is that he was an employee of respondent as Cashier and was also an office- bearer of the Union. While he was in service due to dispute in between the Union and the respondent under the apprehension that his service may not be terminated an application before NIRC was filed in 1999 and by order, dated 24-9-1999 interim order protecting the service of the appellant was granted. However, during the pendency of case, stay order granted in that matter was vacated on 8-4-2000, taking benefit of the same respondent removed the appellant from service on 10-4-2000. It is, thereafter, an application for amendment in the pleading of case pending before NIRC was moved with the prayer that an additional prayer for setting aside the dismissal order and reinstatement of the appellant in service with all consequent benefits he added in prayer clause, that application was rejected by order, dated 21-3-2002 with the observation that "termination of service is very distinct and separate cause of action that cannot be made part of this petition already filed by the petitioner. This Commission even otherwise cannot grant the relief of reinstatement in this petition. It is for the petitioner to file separate case under section 53 of the IRO, 1969 or to apply to a proper forum for reinstatement". After dismissal of application for amendment appellant withdrew the Case No,4A (106) of 1999-K from NIRC for filing a case under section 25-A of IRO before the appropriate Labour Court. Application for withdrawal was allowed and the petition before NIRC was disposed of as withdrawn on 29-5-2002.
4. ' It is, thereafter, on 15-6-2002 case before Labour Court was filed, the same was disposed of on the ground of limitation being timed barred, which has been challenged in this appeal.
5. ' It is argued by learned counsel for the appellant that as grievance application filed before Labour Court on 15-6-2002 was against the same act of the respondent of victimizing the appellant due to union activities and finally resulting in dismissal from service therefore, appellant is protected under section 5 read with section 14 of the Limitation Act, which allows an aggrieved person to present his petition before the appropriate forum on submission of sufficient cause for the delay, in filing the matter. It is further argued that by virtue of section 14 of the Limitation Act, the time during which plaintiff had prosecuted his case with due diligence and in good faith before NIRC which was suffering from jurisdictional defect, can be excluded.
6. ' For the proper appreciation of the case, it would be beneficial to go through section 14 of the Limitation Act, which reads as uhder.-- "14. Exclusion of time of proceeding bona tide in Court without jurisdiction.--- (1) In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of Appeal against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of Appeal, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it."
7. ' Bare reading of section 14 of Act, 1908 shows that while excluding the period spent in a Court having no jurisdiction, certain criteria has to be examined particularly that both the cases proceeded in the latter Court and pending in the former Court should be based on the same cause of action with the same relief. In context thereto if the case in hand is examined, it is found, that while pursuing his case before NIRC the relief sought by the appellant was that respondent may be restrained from terminating him from service meaning thereby that at that particular time he was in service and due to Union activities was under the apprehension of his removal. Whereas the grievance application filed before Labour Court under section 25-A of IRO on 15-6-2002 was absolutely on different footings. At the time of presentation of application under section 25-A of IRO he was removed from service and had prayed for reinstatement with full back-benefit, hence ex facie the relief sought in both the matters was absolutely different to each other and cannot be said to be the part of the proceeding for the purpose of taking benefit of section 14 of Limitation Act.
8. ' Learned counsel for the appellant has referred to House Building Finance Corporation and others v. Syed Muhammad Ali Gohar Zaidi 2004 SCMR 1811, but the facts and circumstances appearing therein are absolutely different to the present case. In that case respondent had approached the Court after his dismissal, but before wrong forum, but the relief sought in all the proceedings presented at different forum was same on the same cause of action whereas in the present case, relief sought by appellant before NIRC and before Labour Court though was with reference to his service but were totally of different nature.
9. ' Whereas on the other hand learned counsel for the respondent has relied upon the cases reported in Karsondas Dhunjibhoy v. Surajabhan Ramrijpal and others AIR 1933 Bom. 450, Messrs Chaturbhai Bhailalbhai Patel v. Union of India representing E.R. And W.R. AIR 1961 Pat. 334, Amar Nath and another v. MT Ralli and others AIR 1930 Lah. 211, Sumerehand Hukumchand and others v.
10. Ilukumenhand Mathurdas and others AIR 1965 M.P. 177 and Sri Narayanadoss Mahant and another v. Sri T. Meeladri Rao and another AIR 1959 Andhra Pradesh 148, wherein it is observed that while seeking protection under section 14 of Limitation Act the main condition that the cause of action in both the suits must be same, must be complied with.
11. ' It is further pointed ont by the learned counsel for respondent that the very grievance application filed by the appellant before Labour Court was also hit by Order XXIII, rule 2, C.P.C. Withdrawal of case under Order XXIII, rule 2 with permission to file a fresh one means that the matter sought to be withdrawn would be regarded as never brought before the Court, therefore, the parties will reverse exactly to the same position which they occupied before presentation of application or petition by them. However, obtaining leave to file a fresh suit does not seem to lose his remedy altogether. He can agitate his claim but the period of limitation will be counted from the very day when cause of action accrued. To support his arguments learned counsel has referred Mst. Maroof Jan and 2 others v. Yagoob and 4 others 1990 CLC 19, Sadayatan Pande v. (Firm) Ram Chandra Gopal AIR 1934 All. 688, Fateh Khan v. Sharaaf Khan and others PLD 1984 Lah. 106; Kondaji Bagaji v. Dagadu Gajaba Deokar and another AIR 1935 Born. 259, Muhanlal Baheti and others v. Moulvi Tabizuddin Ahmed AIR 1939 Cal. 625 and Madhosingh and another v. Jaitpalsingh and others AIR 1954 Rajasthan 46.
12. ' Upshot of above discussion is that undisputed facts are that appellant had approached to the NIRC on 24-9-1999 for the protection of his service under the apprehension that due to union activities he may not be removed by the respondent. Whereas in the labour case presented on 15- 6-2002 his prayer for reinstatement in service was different from it as it was presented after removal from service. Hence both these cases were on different footings with different cause of action and the nature of relief sought in both the matters too was different.
13. ' Under the circumstances, I am afraid that how appellant could seek benefit of section 14 of Limitation Act as even otherwise after withdrawal of case from NIRC with permission to file a fresh the period of limitation will be computed as observed earlier from the date when cause of action initially occurred to appellant i,e, 10-4-2000 as such the grievance application filed before Labour Court on 15-6-2000, is hopelessly time-barred. Except taking plea of section 14 of Limitation Act no sufficient cause has been brought on record to condone the delay.
14. ' In view of foregoing reasons, labour appeal is hereby dismissed in limine.