1. MUHAMMAD NADIR KHAN, J.--- This labour revision petition under section 48(3) of Industrial Relations Ordinance, 2002 (hereinafter referred to as I.R.O., 2002) is directed against the order, dated 29-8-2007 passed by District and Sessions Judge/First Labour Court, Balochistan, Quetta (hereinafter referred to as the Labour Court) whereby the application filed by the petitioner under section 45(2) of I.R.O., 2002 read with Order VII, rule 11, C.P.C. Raising objection about maintainability of the grievance application filed by the respondents (hereinafter referred to as the applicants/workers) against the retrenchment order, was dismissed.
2. ' Facts relevant for disposal of this revision petition are that on 8-3-2007 the applicants/workers filed grievance application under section 46 of I.R.O., 2002 against the petitioner and two other officers of the petitioner-Bank for their reinstatement by setting aside order, dated 10-3-2006 passed by the petitioner/Bank whereby 2300 employees of the bank were removed under the retrenchment scheme. Along with the grievance petition application for, condonation of delay was filed stating that the retrenchment order was stayed by the National Industrial Relations Commission (hereinafter referred to as NIRC) and one month's salary was also paid to the applicants/workers whereas the case of the applicants/workers was disposed of by Industrial Relations Commission on 6-2-2007, copy of said order was received after one week.
3. Applicants/workers further stated that their grievance notice was verbally rejected on 5-3-2007. On the above ground delay in filing of the grievance petition was prayed to be condoned.
4. The petitioner-Bank in response to the notice of the grievance petition and application for condonation of delay filed application under section 45(2) of I.R.O., 2002 read with Order VII, rule 11, C.P.C. Stating that the applicants/workers were retrenched from service of the Bank on 10-3-2006 against which petition under section 49(4)(e), I.R.O., 2002 was filed before NIRC at Quetta.
5. According to the petitioner-Bank retrenchment letters were served on the employees through personal service as well as through registered post and publication in Urdu and English newspapers. The application filed by the applicants/workers before NIRC was dismissed on 6-2- 2007. The applicants/workers approached the Labour Court after seven months. The application was, therefore, time-barred. Further no grievance notice was served by applicant/worker No,2. The application was prayed to be dismissed.
6. ' Learned Labour Court after hearing of the arguments of the parties dismissed the application filed by petitioner/Bank with following observations:--- {{URDU TEXT}} ' Mr. Shahid Shahid Anwar Bajwah learned counsel for the petitioner argued that the application filed by the petitioner under section 45(2), I.R.O., 2002 read with Order VII, rule 11, C.P.C. Was based on the admitted facts. Very contents of the grievance petition supported the plea of petitioner/Bank while the application for condonation of delay contained no ground allowing extension of time to the applicants/workers for filing of grievance petition after expiry of the period of limitation which could not be extended on the ground that no reply of grievance notice was given by the Bank to the applicants/workers or that the petitions filed before NIRC were pending.
7. Learned counsel submitted that the petitions filed by the Employees Federation were withdrawn on 20-5-2006 and 1-6-2006 where after no ground was available to the applicants/workers to approach NIRC. Pursuing the matter before the forum having no jurisdiction in the matter cannot be a ground for condonation of delay. The learned counsel in support of his arguments relied on following case-law:--- ' 2007 PLC 64, AIR 1958 M.P. 91, AIR 1934 All. 688, 1984 CLC 1258, PLD 1959 SC 287, PLD 2008 SC 462, AIR 1928 Cal. 46 and 2007 PLC 340.
8. ' Mr. Azam Jan Zarkoon learned counsel for the respondents/workers supported the impugned order and argued that without recording of evidence the dispute between the parties cannot be resolved. Plea of the respondents/workers that they served the petitioner/Bank with grievance notice which was verbally rejected can be proved only through evidence and the grievance petition could not be dismissed on the bisis of the application filed by the petitioner-Bank. The learned counsel argued that the question of limitation is mixed question of law and fact. The circumstances of the case itself explain the delay and the applicants/workers after dismissal of the petition by NIRC approached the Labour Court without wasting any time, hence, period spent before NIRC pursuing the matter bona fidely is to be excluded. Learned counsel for the respondents/workers supported his arguments by following case-law:--- "2007 PLC 246, 2004 PLC 1014 and 1994 PLC (C.S.) 305."
9. ' Submissions made by the learned counsel for the parties considered. Record of the case perused.
10. It is admitted feature of the case that retrenchment order was issued on 10-3-2006, petitioner/Bank claimed that the same was served on the workers in person as well as through registered post and publication in English and Urdu newspapers. The petitioner though stated that issuance of such large number of retrenchment notices was not possible and denied receiving of the notices but the record reflects that the employees/workers were in knowledge of issuance of retrenchment order, dated 10-3-2006 as the Habib Bank Employees Federation filed two separate petitions before the Benches of NIRC at Quetta and Islamabad. On 10-3-2006 both the Benches of NIRC directed the parties to maintain status quo. However, both the petitibns were withdrawn on 2-5-2006 and 1-6- 2006 respectively. Meanwhile respondents/workers approached NIRC on 19-5-2006 and number of other aggrieved employees also filed petitions before NIRC against the order of retrenchment. All the petitions were dismissed by means of common judgment dated 6-2-2007 with following observations:--- "The individual petitioners in question are aggrieved of the retrenchment letter of March 10, 2006 which they contend to be an act of unfair labour practice being in sequence of VSS and Golden Handshake Scheme earlier offered and stated to have been subsequently withdraw and so was alleged to be an act of mala fide and unfair labour practice. Prima facie this situation does not appear to have been attracted by any of the above provisions. If at all it is interpreted by a legal forum as mala fide and unfair labour practice, this Bench for reasons as aforesaid cannot proceed to adjudicate these petitions. But no apprehension of any of these specific unfair labour practices as contained in the above section that may be likely to occur has been pleaded in all or any of these petitions. Therefore, this Bench cannot proceed with these petitions under Regulation 32(2) of NIRC (Procedure and Functions) Regulations. In other words no allegation of specific unfair labour practice likely to be committed has since been made, therefore, this Bench lacks jurisdiction to determine the same. These petitions as mentioned in the title of this order are thus, dismissed for lack of jurisdiction and the applications filed by the learned counsel for responded in these petitions with the prayer for their dismissal are also disposed off as having become infructuous.
11. The petitioners if so advised may seek remedy available under the law."
12. ' The applicants/workers claimed that the respondent/Bank was served with grievance notice, dated 23-5-2006 which was verbally rejected on 5-3-2007. The applicants after dismissal of their petitions by NIRC filed the grievance application before Labour Court on 8-3-2007 challenging the retrenchment order, dated 10-3-2006 and sought condonation of delay mainly on the ground that they had been pursuing the matter before NIRC till 6-2-2007. Applicants/workers contented that their grievance notice dated 23-3-2006 was verbally rejected on 5-3-2007.
13. The plea of applicants/workers if accepted it reflects that the retrenchment order was issued on 10-3-2006, applicants/workers issued grievance notice on 23-6-2006 while no written reply of the same was received and the grievance petition was filed on 8-3-2007. Meanwhile applicants/workers approached NIRC for redressal of their grievance and their petition filed before NIRC on 19-5-2006 was dismissed on 7-2-2007 with observation that if the applicants/workers are advised they may seek remedy available under the law thereby meaning that the plea of applicants/workers about unfair labour practice was not accepted, hence petition under section 49(e) of I.R.O., 2002 was rejected vihereafter the remedy left to the applicants/workers was filing of grievance petition under section 46 of I.R.O., 2002 which reads as under:- Redress of individual grievances.--- (1) A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his Shop Steward or collective bargaining agent, within one month of the day of which cause of such grievance arises;
(2) Where a worker brings his grievance to the notice of an employer himself or through his Shop Steward or collective bargaining agent, the employer shall, within fifteen days of the grievance being brought to his notice, communicate his decision in writing to the worker;
(3) If an employer fails to communicate a decision within the period specified in subsection (2) or if a 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, and where the matter 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 was an industrial dispute: ' Provided that a worker who desires to take the matter to the Labour Court, he shall do so, 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 specified in subsection (2)."
14. The above provision of I.R.O., 2002 shows that the grievance notice was to be issued by the applicant/worker within one month of arising of the cause of such grievance and notice was to be replied by the employer within 15 days thereafter within two months of the reply the applicant/worker was to approach the Labour Court, hence the total period available to the applicants/workers was three months and 15-days. In the present case the grievance petition has been filed after eleven months of issuance of retrenchment order. Although the grievance notice issued by the petitioner was not within the time-frame provided by subsection (1) of section 46 of I.R.O., 2002 but in number of cases it has been held that if a worker approaches the Labour Court within the period of three months and 15 days of arising of cause of action, the delay in issuance of grievance notice if explained can be condoned. However, in the present case the grievance petition was not filed within 3 months and 15 days. The record reflects that Habib Bank employees Federation on the very day of issuance of retrenchment notices filed petitions under section 49(e) of I.R.O., 2002 before the Benches of Industrial Relations Commission at Quetta and Islamabad challenging the issuance of retrenchment order/notice where upon the parties were directed to maintain status quo. The said petitions were pending till 20-5-2006 and 1-6-2006, i.e,, the dates on which the same were unconditionally withdrawn by the Employees Federation. The record further reflects that the applicants/workers themselves approached the NIRC by filing of petition on 19-5- 2006, and it is claimed that they issued grievance notice to the employer on 23-5-2006. However, no further step was taken with regard to redressal of their grievance in pursuance of the grievance notice issued to the employer on 23-5-2006 and they waited for disposal of their petition filed before the NIRC which was dismissed on 7-2-2007 and it was held that the NIRC had no jurisdiction in the matter and the petitioners were allowed to seek remedy available under the law if so advised, where after the grievance petition was filed before the Labour Court along with application for condonation of delay.
15. ' The question which has cropped up is whether the period spent by the petitioner before the NIRC can be excluded from the period of limitation provided under section 46 of the I.R.O. Allowing the aggrieved worker to approach the Labour Court within the period of 3-1/2 months of arising of the cause of action. Admittedly I.R.O., 2002 provides remedy to aggrieved worker to redress his grievance by filing of petition under section 46(3) of I.R.O. Simultaneously, under section 49 the worker can approach NIRC to prevent an employer from doing an unfair labour practice. The action taken by the bank to remove the workers under retrenchment scheme was alleged to be unfair labour practice, hence, the Habib Bank Employer Federation as well as the applicants/ workers approached the NIRC, initially status quo order was passed, reflecting that prima faciely NIRC considered it case of unfair labour practice, however, subsequently the Employer Federation withdrew their petitions while the petition of the applicants/workers was dismissed as it was held to be not within jurisdiction of NIRC. In such circumstances judgment of Honourable Supreme Court reported in 1994 PLC (C.S.) 305 becomes applicable. The Honourable Supreme Court condoned the delay in filing of the petition before Service Tribunal as the petitioner had been pursuing the matter before the High Court by filing of constitutional petition. Relevant observations read as under:- "With regard to the other contention of the learned counsel for the petitioners that the appeal before Service Tribunal was, time barred, the Tribunal condoned delay in filing the appeal on the following considerations:- "(4) The learned counsel appellant does not claim that the appeal was filed within time. However, an application for condonation of delay has been filed under section 5 of the Limitation Act, 1908. In this application it is contended that the time spent in pursuing the remedy before the Lahore High Court deserved to be excluded. The reason given by the appellant in his own words is that he has wrongly been advised by his counsel to file the writ petition in the High Court despite the fact that the proper forum for his grievance was the Service Tribunal,
(5) Normally wrong advise of counsel is not a good excuse. However, since the question of High Court and the Service Tribunal had been the subject-matter in numerous eases and there had been difference of opinion as well, we think that application for condonation of delay should be treated with leniency. Most of the lawyers are not conversant with service laws and ordinarily WAPDA employees would have been allowed with the deficiency of civil servant if amendment under section 17 of the WAPDA Act had not been made. The different textbooks even have failed to carry out the amendment in the Act which can mislead a lawyer. It has been held in so many cases by the Supreme Court itself that as far as possible technicality in service matters should be avoided. Taking into consideration all these facts, therefore, we inclined to Condone the delay and exclude the time spent in pursuing the remedy before the High Court. It is ordered accordingly.
16. ' The above reasoning's given by the learned Service Tribunal in condoning the delay in filing the appeal do not suffer from any legal infirmity so as to call for interference by us with the discretion exercised by the Tribunal in the case. We, therefore, find no merit in this case. Petition is dismissed.
17. Leave to appeal is refused."
18. In view of above, the period spent in pursuing the matter before NIRC in my view needs to be condoned as the remedy before NIRC is somewhat parallel with remedy provided before Labour Court and it' is very difficult to draw line of distinction by the workers for seeking remedy of their grievance before either of the forums. In the present case taking of cognizance of NIRC and grant of temporary injunction reflects that prima facilely case of unfair labour practices was made out which after due consideration was rejected. In such circumstances approaching NIRC by applicants/workers cannot be said to be for any other reason but considering the action of the Bank as unfair labour practice and their bona fides cannot be doubted in said behalf.
19. ' However, the period spent before NIRC if even excluded then too certain factors such as issuance of grievance notice by both the applicants/workers, it being in accordance with the provisions of section 46 of I.R.O., 2002, its service on Bank etc. Still needs to be examined and no finding can be made in said regard without recording of evidence. The Labour Court, therefore, has rightly rejected the application filed by the petitioners with direction to file written statement, wherein petitioners would be at liberty to raise legal objections and contest the case on merits too. The learned Labour Court after recording of the evidence of the parties if any produced by them, is to decide the legal objections as well as factual controversy, in accordance with law.
20. ' In view of what has been discussed hereinabove I find no merits in this petition which is dismissed with no order as to cost.