SYED MANSOOR ALI SHAH, J.--- This consolidated judgment decides twelve writ petitions, mentioned in Schedule "A" to this judgment. These petitions carry identical facts and a common legal question. The only minor difference in the factual matrix is the post/designation held by the private respondents ("employees") while working at the petitioner bank i.e., The Bank of Punjab, Lahore (the "Bank"). In the present petition and in some other petitions the employees were working as "Messengers" with the Bank, while in the other petitions the private respondents were working as "Drivers." Schedule "A" to this judgment carries this detail.
2. Brief facts common to all these petitions are that the employees were dismissed from service by the Bank on 17-7-2004. Against the said dismissal, the employees filed grievance petitions before the learned Labour Court which were dismissed on 7-1-2005. Against the said order the employees preferred appeals before this Court (under the erstwhile Industrial Relations Ordinance, 2002 [the "IRO"]) which were disposed of vide order dated 22-3-2006 and the cases were remanded to the learned Labour Court, Lahore.
3. In the second round of litigation Grievance Petitions of the private respondents were once again dismissed on 24-2-2007 by the learned Labour Court. Against the said order, once again employees filed appeals under section 47 of the I.R.O. on 2-4-2007 before this Court. Objections were raised on the said appeals by the judicial branch ("Office") of this Court on the same day and the employees were granted three days to remove the said objections. However, the employees finally met the said objections after a period of almost six months and re-filed the appeals on 6-10- 2007. The appeals were put up for hearing before this Court and notices were issued to the Bank.
During the pendency of the said appeals before this Court, Industrial Relations Act, 2008 (the "IRA") was promulgated on 15-12-2008 and the said appeals under section 86 of the IRA were transferred to the Punjab Labour Appellate Tribunal (the "Tribunal"). The said appeals came up for hearing before the Tribunal and were allowed through the impugned order dated 16-12-2009. The said order has been challenged before this Court in the instant petitions.
4. The main argument of the learned counsel for the petitioner (i.e., "The Bank of Punjab" in all the petitions) is that the period of limitation under section 47 of the repealed Industrial Relations Ordinance, 2002 (I.R.O.) is 30 days. He contended that the appeal was initially filed within time; however, the appeal met with the objections raised by the Office of the Lahore High Court and the appeals were duly returned to the employees and were re-filed after almost six months and therefore, at the time of re-filing were time barred. He contended that the applications for condonation of delay under section 5 of the Limitation Act, 1908 filed by the employees does not disclose any plausible reason for the said delay. He further contended that the learned Tribunal failed to address the issue of limitation and wrongly found refuge under sections 30(4) of I.R.O., 1969, section 45(4) of I.R.O., 2002 and section 53(4) of I.R.A., 2008, to show that no court-fee was payable in respect of matters filed in Labour Court and therefore the objection raised by the office of this Court were of no avail. It is therefore contended that the question of limitation was wrongly decided by the learned Tribunal. In support of his contentions on the question of limitation learned counsel for the petitioner placed reliance on Naheed Ahmed v. Asif Riaz and 3 others PLD 1996 Lah.
702, Ghulam Hussain and 3 others v. Bahadar and others PLD 1954 Lah. 361, Protein and Fats International (Pvt.) Limited through Chief Executive and 2 others v. Capital Assets Leasing Corporation Limited through Manager 2005 CLD 857, Muhammad Idrees v. Abdul Rehman and another 2001 YLR 2294, Mehr Ghulam Dastgir Khan Lak v. Hayat and 2 others 2000 CLC 781, Elahi Bakhsh and 8 others v. Ahmed Bakhsh and 2 others 1999 YLR 777, Lahore Development Authority v.
Muhammad Rashid 1997 SCMR 1224.
5. Learned counsel for the private respondents (employees) on the other hand, referred to sections 86 and 87(2)(b) of I.R.A. to submit that High Court Rules and Orders are not applicable to the present case. He also relied on Mst. Sabiran Bi v. Ahmed Khan and another 2008 SCMR 847 to contend that the appeals of the private respondents were not time barred.
6. Arguments heard. Record perused.
7. The main question that needs to be answered in these petitions is whether appeals filed by the employees were time-barred. In order to answer this question, it is important to lay down the factual details pertaining to the filing of the appeals of the employees before this Court under the repealed I.R.O. Record of each appeal was summoned from the office. Office Report was also called regarding filing of each appeal before this Court. According to the record the details of all the appeals are similar and are reproduced hereunder:--- Filing History Date of the impugned judgment by the lower Court (learned Tribunal).24-2- 2007 Employees applied for the certified copies of the impugned judgment.27-2- 2007 Date of preparation of the certified copies.9-3- 2007 Date of filing of appeals before this Court. Appeals filed after 26 days of the impugned order therefore, within time.2-4- 2007Diary Nos.557-568 Objections raised on the appeals returned.2-4- 2007 Appeals "received back" i.e. collected from the office by the employees.5-4- 2007 Appeals re-filed.13-9- 2007After over five months Objections not met once again appeals `received back' from the office.24-9- 2007 Appeals re-filed the second time.2-10- 2007 Objections still not met-appeals "received back".4-10- 2007 Finally re-filed on6-10- 2007Diary Nos.1722 To 1733. After over six months from the date of objections i.e. 2-4-2007.
8. The objections raised by the office on the appeals on 2-4-2007 through the objection sheet were as follows:--- 3.The court-fee is insufficient.
4.Revenue stamps to be paid of Rs.3 to be paid for each non judicial paper.
5.Signature of the learned counsel wanted.
7.Spare copies to be supplied.
23.Duly executed power of attorney to be filed.
29.Photo copy of National Identity Card of the petitioner to be filed.
30.Better copies 31.Entry column of datasheet should be filled.
32.No ground of urgency is made out.
33.Computer slip is blank.
9. It is important to visit the relevant Rules and Orders of the Lahore High Court, Lahore. The said Rules are framed by the High Courts under Article 202 of the Constitution. The said Article provides:- -- "202. Rules of Procedure.--- Subject to the Constitution and law, a High Court may make rules regulating the practice and procedure of the Court or of any Court subordinate to it."
Therefore, the honourable Chief Justice and the Judges of the High Court for Administrative efficiency have framed the said Rules regulating the practice and procedure of the Court by authorizing the Deputy Registrar (Judicial) with certain administrative powers. The relevant Rules for the purposes of the instant petitions are Rules 9 and 9-A, Part-A, Chapter-I of the Rules and Orders of the Lahore High Court, (Revised Edition, 2005). For ready reference the said Rules state as under:--- "9-(i).The Deputy Registrar (Judicial) is authorized to return memorandum of any suit, appeal or petition or application etc. (a)if it is not maintainable under any law; or (b)if it is not properly constituted; or (c)if it contains scandalous or objectionable Language or material; or (d)if it is not drawn up in conformity with the foregoing directions; or (e)for amendment making of the deficiency or for filing requisite documents within the time to be specified in the Objection Memorandum Appendix 1(a), 1(b) & 1(c)
(ii) The order of the Deputy Registrar (Judicial) returning the memorandum of any suit appeal petition or application may be challenged before the Chief Justice or Judge nominated by the Chief Justice on administrative side whose decision shall be final and shall not be assailed in any other proceeding before the High Court.
"9-A. A list of petitions, appeals etc. ordered to he returned shall be notified on the Notice Board and petitions, appeals, etc. not received back within seven days of the publication of the list shall be placed before a Judge of the High Court for order on a date to be notified by including such petition in a motion cause list. It is made clear that any delay in placing such petition before the Court or issuing the list shall not furnish any justification for non-receipt of the returned petition in time and non-compliance of the objection taken within time specified by Deputy Registrar (Judicial)."
10. According to Rule 9, Deputy Registrar (Judicial) can raise objections mentioned therein. Once the objections are raised the appeals, etc. are returned for making up the deficiency within the time to be specified. The end of the Objection Sheet states:-- "Returned with the objections at Nos. above to be resubmitted after the removal of these objections within days."
11. In these cases the objections were as mentioned above and a time of three days was given.
Once the objections are removed the appeal is re-filed. Therefore, once the .objections are raised and the appeals are returned it means that appeal (or the case) has not been validly instituted and therefore, the appeal has to be re-filed (re-instituted) after removing the objections raised.
The appellants are informed of the objections through notice put up on the Notice Board the same evening (along with the list of urgent cases for the next day) so that the appellants or their counsel can "receive back" or collect the memo. of appeals from the office and attend to the objections.
12. The period for removal, of the objections granted by the Deputy Registrar (Judicial) is normally within the period of limitation remaining, in a particular case and in case the appeal is filed on the last date of limitation, no such period is prescribed in the objection raised, therefore, learned counsel for the appellant in such a case has to remove the objection as soon as possible. What is important to note is that the entire process starting from the raising of the objections, returning of the memorandum of appeal, "receiving back" of the memorandum of appeal and lastly the re- filing of the same has no bearing on the running of the period of limitation under the Limitation Act, 1908. In other words, the period from date of raising of objection till re-filing of the case is not excluded for the purposes of limitation.
13. Article 202 of the Constitution provides that the said Rules are subject to the Constitution and the law. Therefore, the provision of Limitation Act, 1908 remains undisturbed. Under Limitation Act, 1908 the above period spent in removing the objections and re-filing of the appeal is not excluded.
And therefore, if during the process of removing I the objections raised by the office, irrespective of the time specified by the office, the appeal gets time-barred, the only remedy available to the appellant is to file an application under section 5 of the Limitation Act, 1908 for the condonation of delay which will be taken up on its own merits when the appeal is put up for hearing before the Court.
14. On the other hand Rule 9-A of the High Court Rules and Orders provides that in case the memorandum of appeal, etc. is not "received back" or collected from the office after seven days of the publication of the list it shall be placed before the Judge of the High Court for orders on a date to be notified by including such petition in the motion cause list. However, ally delay in placing, such petition before the court or issuing the list shall not furnish any justification for non-receipt of the returned petition time and non-compliance of 'the objection taken within time specified by Deputy Registrar (Judicial).
15. Under Rule 9(ii) (ibid) the appellant also has the remedy to challenge the objections raised by the Deputy Registrar (Judicial) and in such a case the objections will be put up before the honourable Chief Justice or any honourable Judge nominated as an administrative judge by the honourable Chief Justice whose decision shall be final and not assailed in any other proceedings before the High Court. Therefore the office is to place before the Judge of the High Court all the objection cases which have not been received back by the parties or their counsel after seven days of the publication of the list on the notice board. The said cases are to be placed before the honourable Judge of the High Court as objection cases after duly notifying the party by mentioning the cases in the motion cause list and in case no one is present to prosecute the said objection the same is to be dismissed for non-prosecution and the objection case along with the memorandum of appeal consigned to record. The reason behind this Rule is to ensure that the office is not blocked by unnecessary files, which have not been received back, and no one is interested to prosecute the same.
16. In the instant case the appeals were filed, objections were raised and the appeals were re-filed after the period of limitation prescribed under section 47 of I.R.O. and therefore the appeals were accompanied by an application under section 5 of the Limitation Act, 1908. Before discussing the reasoning of the learned tribunal in attending to the question of limitation as reliance was placed by the counsel for the respondent employees on Mst. Sabiran Bi v. Ahmed Khan and another 2000 SCMR 847 to contend that the appeal could not have been dismissed on the question of limitation, it is important to discuss the applicability of the said judgment to the instant case.
17. The facts of Sabiran Bi (ibid) were that in a suit for possession through pre-emption decree was passed by the learned trial court, which was challenged in the lower appellate court and findings of the learned trial Court were reversed. Civil revision was preferred before the Lahore High Court.
The revision was filed within time on 16-4-1996. The office raised objections the same day. From 6- 4-1996 till 17-2-1997 for 10 months the counsel or the petitioner did not bother to enquire from the office about its fate. The petition was finally placed for hearing before the Court and was treated to be time-barred by 10 months, The question raised in this case by the august Supreme Court of Pakistan was whether on account of non-removing of the objections raised by the office, the petition could be treated to be barred by time or in such-like situations office was to enlist the case for non-prosecution before the Court? The said judgment itself distinguishes two set of cases namely: the one in which the file is never received back and objections removed and the other where the file is received back and re-filed after the period of limitation. This distinction has been dealt with in para 8 of the above cited judgment in the following manner:--- ".... However, the facts noted in the case as well are distinguishable because in the case revision was filed in the office within a period of three months but it was returned to learned counsel for removal of certain objections within a specified period but he re-filed the revision after 8 months; whereas in the instant case memo. of revision was not returned to the counsel for petitioner because allegedly he did not contact the office. Inasmuch as subsequently the case was included in the list along with the cases which were pending under objections but even then memo. of petition was not returned to petitioners counsel and ultimately it was fixed in court and learned judge in chambers of Lahore High Court dismissed the same treating it as barred by time because for a period of 10 months the objection was not removed. Thus on account of this distinction the judgment relied upon is of no help to him Learned Counsel also relied on 1991 CLC 296, PLD 1996 Lah. 158, PLD 1996 SC 704 (sic) and 1997 SCAR 1224 but in our opinion these judgments are distinguishable on facts from the case in hand because in the reported judgments the memos. of petitions/appeals were handed over by Deputy Registrar to the advocates for the purposes of removing office objections within the time fixed for this purpose but they did not adhere to the time and re-filed petition, etc. after considerable delay.
Thus the Courts concluded that in such situation the petitions are time barred; whereas in the instant case the prominent distinction is that memo. of petition was never handed over to the counsel for petitioner for removing office objections mainly for the reason that he did not contact office after filing the petition. Inasmuch as when subsequently the case of petitioner was included in the list of cases displayed on the notice board for removal of the objections within the period mentioned therein. Again counsel did no contact office, therefore the memo. of petition was delivered to him, as such objections were note removed.... Thus in our opinion there was no occasion for the learned Judge of the Lahore High Court to come to the conclusion that Civil Revision was time barred."
18. Mst. Sabiran Bi (ibid) therefore holds that in case where objections are not removed the case ought to be presented by the office before the court for non prosecution and if after notice the objection is upheld the case can be dismissed for non-prosecution but not as time-barred. This case, as distinguished in the judgment (cited above), does not apply to a case where memo. of appeal has been received back and the appeal re-filed after removing the objections which is the case in hand. Reliance of the counsel on Mst. Sabiran Bi (ibid) is therefore misplaced.
19. In fact Mst. Sabiran Bi supports the contention of the petitioner that cases where appeals have been 'received back' and re-filed after the period of limitation the said appeals are time-barred unless the period of limitation is condoned under section 5 of the Limitation Act, 1908. Similar legal question has come up for hearing before this Court earlier. Some of the keys judgments which have been most popularly relied upon are discussed hereunder. Naul and others v. Mula and others AIR 1926 Lah. 626, Ghulam Hussain and 3 others v. Bahadar and others PLD 1954 Lah. 361, Muhammad Ahmed v. Muhammad Ali and another PLD 1996 Lah. 158, Sultan Muhammad v.
Muhammad Ashraf and 4 others 1991 CLC 269, Naheed Ahmed v. Asif Riaz and 3 others PLD 1996 Lah. 702.
In AIR 1921 Lah. 73, Chevis, J. held as follows:--- "The law requires that the memorandum of appeal shall be accompanied by certain documents, and if the Memorandum of appeal is presented unaccompanied by such documents, I am of opinion that the presentation is not valid." (emphasis supplied)
In Ghulam Hussain and others v. Bahadar and others PLD 1954 Lah. 361 Abdul Aziz Khan, J. held:--- "In the case under consideration the Deputy Registrar fixed 2 weeks for re-filing the appeal and this time expired on 27th July, 1952. The copy of the trial Court's judgment was ready on 18th July, 1952. It could have been filed within the time fixed by the Deputy Registrar but it was not re-filed till 2nd August, 1952. It is settled law that in order to have the benefit of section 5 it is the duty of the appellant to explain the delay for every day that elapses beyond the period allowed by the Limitation Act for filing an appeal. In this case it was necessary for the appellant to explain the delay from 27th July, 1952 to 2nd August, 1952. The appellant filed an affidavit which is dated 28th August, 1952. No attempt has been made to explain in it the delay in re-filing the appeal with a copy of the judgment of the trial Court from 27th July, 1952 to 2nd August, 1952. In. the absence of such explanation the delay cannot be condoned." (emphasis supplied)
In Sultan Muhammad v. Muhammad Ashraf and 4 others 1991 CLC 269, Abdul Majeed Tiwana, J, held as follows:--- In the instant case, no doubt, no period of limitation for filing it stood prescribed but the petitioner was supposed to file it within the conventional period of three months and initially he did it within that period. However, while re-filing, after the removal of certain objections, the counsel signified extreme indifference or negligence as he did so after about eight months without any plausible explanation for this inordinate delay. Obviously the element of reasonableness is missing in this case and principle of laches has inevitably crept in. The revision petition is, therefore dismissed in limine on account of limitation besides laches on the part of the petitioner's counsel." (emphasis supplied)
In Muhammad Ahmed v. Muhammad Ali and another PLD 1996 Lah. 158 Ihsan-ul-Haq Chaudhry, J. held as follows:--- "It is, therefore, clear that if the appellant fails to re-file the memorandum of appeal within the time allowed by the office the extra time, taken for removal of the objection would not be excluded while computing, the period of limitation."
In Naheed Ahmed v. Asif Riaz and 3 others PLD 1996 Lah. 702 Amir Alam Khan, J. speaking for the Division Bench held:--- "therefore, it can be safely concluded that the time fixed by the office under the overall supervision of the Deputy Registrar of this court is to be strictly adhered to because the limitation for filing the appeal having begun to run cannot be stopped or supplemented by act of commission or omission of the appellant unless be it a case of disability as envisaged under the law, therefore, the period of time taken beyond the time specified by the office would neither be excluded nor added to the limitation while computing the limitation for filing the appeal and if in the meanwhile the appeal had become barred by time, the only course open to the appellant would be to apply for condonation or delay by furnishing explanation therefore .... The rule of law laid down in all these judgments is to the effect that the time fixed by the Deputy Registrar/office of this Court for collecting and re-filing of the appeal should be strictly adhered to and if appeal or petition is not filed within time limited by the Deputy Registrar/office, the same shall be deemed to have been presented on the date when it is re-filed and if in the meanwhile the same had become barred by limitation, the delay in refiling the appeal shall not be condoned unless a reasonable explanation is given therefor."
20. After considering the above judgments, the case of Mst. Sabiran Bi (ibid) and the revised Rules of the Lahore High Court (2005 edition) the following legal position emerges:--- (i)That if objections are raised by the office of the Lahore High Court under the High Court Rules and Orders at the time of institution of the appeal, etc. the memo. of appeal, etc. is returned, which means that the filing of the case has been invalid and therefore the appeal cannot be considered to have been instituted for the purposes of limitation.
(ii)The said objection is to be placed on the Notice Board by the office, the same evening along with the result of urgent cases by the office for the convenience of the parties and their counsel.
(iii)If the case is not "received back" or collected from the office by the appellant within seven days of the notice displayed on the notice board the case will be put up before the Court for non- prosecution of the case as held in Mst. Sabiran Bi v. Ahmed Khan and another 2000 SCMR 847. As the case will not be allotted a number in such a situation only objection case will be put up for hearing and in case the said objection case is dismissed for non-prosecution, it will be consigned to record. However, if the party appears before the court and the objection is overruled, the question of condonation of delay is to be taken up by the court and appropriate orders passed.
(iv)If the case is "received back" by the appellant, etc. after the objections are raised by the office (before it is placed before the court as per Rule 9-A (ibid)) and the case is re-filed after meeting the objections, the period spent in removing the objections shall not be excluded for the purposes of Limitation Act, 1908 and in case the appeal, etc. is time-bared during this period of removing the objection the only course open to the appellant would be to apply for condonation of delay under section 5 of the Limitation Act, 1908. It is clarified that even the time specified for removing the objection by the Deputy Registrar (Judicial) does not stop the limitation from running.
(v)In case the appellant wishes to challenge the objections raised, the same can be done immediately under Rule 9(ii) of the Lahore High Court Rules and Orders by requesting to place the case before the Court in terms of the aforesaid Rule.
21. In the present case, the applications are time-barred by almost six months. On merits, the applications for condonation of delay filed by the employees raise the following-two grounds:--- "(2) That admittedly the impugned order was passed on 24-2-2007 and after obtaining its certified copy on 9:3-2007 the appeal was filed on 2-4-2007 which was well within tune, but now the office 'of this honourable Court has returned the file of this appeal with an objection to file the instant application, although there is no delay on the part of the petitioner, hence it is in the interest of justice that the appeal of the petitioner be fixed and heard on merit.
(3) That the valuable rights of the petitioner are involved in the matter and it is well settled law laid down by the apex courts of the country that justice demands that the valuable rights of the parties need to be agitated upon merit rather than dismissing on technical grounds. The delay if any in re- filing the titled appeal is not condoned, the petitioner shall suffer an irreparable loss and injury."
22. The said grounds do not furnish any plausible reason for condonation of delay.
23. The reasoning of the learned Tribunal on the question of limitation leaves much to be desired.
The impugned order of the learned Tribunal holds that the objections raised by the office were unwarranted inasmuch as the objection regarding court-fee and revenue stamps is concerned for the reason that court-fee is not applicable to labour cases under section 34 of Industrial Relations Ordinance, 1969, Section 45 Industrial Relations Ordinance, 2002 and section 53(4) of Industrial Relations Act, 2008. This reasoning is flawed, the said provisions provide that court-fee shall not be applicable in a Labour Court and does not extend to a labour appeal before the High Court under section 47 of Industrial Relations Ordinance (IRO) or for that matter to the learned Tribunal. In any case the respondent employees had the option to challenge the objections before the High Court under Rule 9(ii) of the Lahore High Court Rules and Order but the same was not done. The said objections were finally met by the respondent employees after a period of almost six months, no reason is forthcoming in the application for condonation of delay explaining the delay of each and every day. It has been held by the superior courts that delay of each and each and every day has to be explained. Reliance is placed on Dr. Jehanzaib Rahim v. N, Dr. Shaukat Pervez Dr. Hamida Rahim and others PLD 2007 SC 560; Almas Ahmed Fiaz v. Secretary Government of the Punjab Housing and Physical Planning Development Lahore and another 2006 SCMR 783, S.A. Jameel v.
Secretary to the Government of the Punjab Cooperative Department and others 2005 SCMR 126, Sheikh Muhammad Saleem v. Faiz Ahmed PLD 2003 SC 628. The reasons for condonation of delay IN given by the learned Tribunal are not convincing.
24. The argument of the counsel that under section 87(2)(b) of the Industrial Relations Act (IRA), the provisions of High Court Rules and Orders do not apply to appeals transferred to the Labour Appellate Tribunal is also misconceived. The said provision simply owns up the proceedings taken under the I.R.O. and deem there to be taken under the I.R.A. The said provision does not affect the obligation raised under the High Court Rules and Orders and the provision of Limitation Act, 1908.
Further, even under section 54(3) of the I.R.A. the period of limitation for filing of the appeal is within 30 days. I therefore, hold that respondent employees were not entitled to condonation of delay. The appeal filed before this Court and then transferred to the learned Tribunal is, therefore, held to be barred by time.
25. In view of the above reasons, the impugned judgment dated 24-2-2007 of the learned Labour Appellate Tribunal in all these cases is set aside and the appeals of the employees are dismissed as time-barred. The writ petitions are, therefore, allowed.
SCHEDULE "A"
Sr. No.Writ Petition No.Titled Designation
1. 4734 of 2010 B.O.P. v. PLAT and othersAsad Ali (Messenger)
2. 4735 of 2010 B.O.P. v. PLAT M. Aslam Bajwa (Driver)
3. 4736 of 2010 B.O.P. v. PLAT Arshad Hussain (Driver)
4. 4737 of 2010 B.O.P. v. PLAT and othersSyed Zameer Hussain Shah (Messenger)
5. 4738 of 2010 B.O.P. v. PLAT and othersShah Munawar Hussain Shah (Driver)
6. 4739 of 2010 B.O.P. v. PLAT and othersMuhammad) Ashfaque (Driver)
7. 4740 of 2010 B.O.P. v. PLAT and othersMuhammad Hafeez (Driver)
8 4741 of 2010 B.O.P. v. PLAT and othersTariq Ali (Messenger)(Messenger)
8. 4742 of 2010 B.O.P. v. PLAT and othersKhalid Mehmood(Messenger)
9. 4743 of 2010 B.O.P. v. PLAT and othersKhadium Hussain (Messenger)
11. 4744 of 2010 B.O.P. v. PLAT and othersNazakat Hafeez (Messenger)
12. 4810 of 2010 B.O.P. v. PLAT and othersShoaib Ahmad (Driver)