ABDUL GHIAS NOUSHERWANI, MEMBER - This appeal is directed against the judgment dated 22.8.2011 passed by learned District and Sessions Judge 1st Labour Court Balochistan whereby the application filed by the appellant was dismissed.
2. On 15.2.2012 the representative of respondent No. 2 produced the order of learned Labour Court dated 6.3.2010, wherein the name of respondent No. 2 was struck off and counsel for appellant conceded the same fact and made a request that the name of respondent No. 2 be deleted in the memo, of appeal. The request was allowed.
3. For disposal of appeal briefly stated facts of the case are that the appellant was appointed as clerk on temporary basis who was later on declared as a permanent workman in the companies of respondent in 1985 with the initially name and. Title Sandoz (Pakistan) Limited. However the same name & title changed in different time and presently it is known as NOVARTS Pharma Pakistan Ltd.
And M/s. Parazelsus Pakistan (Pvt.) Ltd. Distributor. Thereafter on 27.2.2008 he was terminated.
4. The learned counsel for appellant contended that the respondent company at various occasions appointed the appellant with the name & style of different companies with mala fide intention. Secondly submitted that the appellant was terminated without adopting legal process.
Thirdly suomitted that the delay in filing of grievance notice & grievance petition covered under Sections 5 & 14 of Limitation Act. On the other hand the learned counsel for respondent mainly contended that grievance notice has been issued after 16 months of his termination and sufficient cause has not been mentioned for the purpose of condonation of delay under Sections 5 and 14 of Limitation Act.
5. In view of available material on record and submissions made by the counsel of parities in my humble view the moot question for disposal of appeal is the legal point of Limitation for filing of grievance notice and grievance petition in view of approaching a wrong forum.
6. From perusal of record it is admitted that the appellant was terminated on 27.2.2008 whereafter on 17.3.2008 he filed a suit for declaration & permanent injunction before Civil Judge-IV, Quetta which was dismissed for non-appearance of appellant. On 22.8.2008 a restoration application was submitted which was dismissed on 16.4.2009. Against above-mentioned orders of learned Civil Judge appeal filed before Additional District Judge-1, Quetta which was too dismissed on 18.6.2009 for want of jurisdiction.
7. On 27.6.2009 the counsel for appellant issued grievance notice on the instruction of appellant on refusal of grievance notice, the appellant filed grievance petition on 18.8.2009 which was dismissed by learned Labour Court with the following observations.
"In view of the above submissions & circumstances of the case as well as without discussing the other issues I am inclined to dismiss the instant application being time-barred."
8. The learned counsel for appellant contended that the learned Labour Court wrongly dismissed the grievance application, on the point of limitation because issue No. 1 has been decided in favour of appellant declaring him as a workman. The learned Labour Court decided the issue No. 1 in the light of evidence recorded in the Court while issue Nos. 2 & 3 with regard of legal position i.e. Maintainability of grievance petition and prerequisites provision of grievance notice. Therefore the submission of learned counsel with this regard is not sustainable.
9. The learned counsel for appellant contended that the appellant was wrongly advised by the then counsel to approach the Civil Court therefore such delay covered under Sections 5 & 14 of Limitation Act. In support of his contention he relied upon authority 1987 CLC 1307 wherein the condition/principle laid down with applicability of Section 14 of Limitation Act. He referred 1984 PLC 1258 wherein the case was not fixed for announcement of order and later on copy of order was not received by the petitioner therefore such period was excluded. 1984 PLC 1182 referred by the learned counsel wherein the petitioner himself withdrawn the suit and on this ground delay was condoned. Again with regard to applicability of Section 14 of Limitation Act. The learned counsel referred 1984 PLC 1044, 1986 CLC 126, PLD 1991 Supreme Court 957 & PLD 2000 Supreme Court 94.
The above citation referred by learned counsel for appellant are not helpful for the reasons that no application under Sections 5 & 14 of Limitation Act has been filed alongwith grievance notice nor with that of petition. However as stated herein above that grievance petition was filed on T8.8.2009 and thereafter on 15.2.2010 an application filed under Section 5 of Limitation Act which was neither decided by learned Labour Court nor the same has been argued by the learned counsel for appellant before this forum. Secondly in view of Section 84 of BIRA only Section 5 of Limitation Act is applicable. The learned Labour Court and this Forum are working under BIRA, 2010 wherein only Section 5 of Limitation Act is applicable which does not cover the case of appellant therefore the above-referred authorities with regard to applicability of Section 14 of Limitation Act not useful to him.
10. The learned counsel for appellant again made an unsuccessful attempt by referring 1992 MLD 833 wherein the appeal of petitioner was returned by the Appellate Court for presentation to proper forum without any proceedings, but the case in hand dismissed by the Civil Court as well as by Appellate Court after initiating proceedings.
11. The learned counsel contended that the termination order of appellant is illegal and void therefore question of delay does not arise. In support of his contention he referred 1987 PLC 196 passed by 4th Labour Court Sind wherein the learned Judge while condoned the delay himself was not sure by quoting the following, "S. 25-A-Grievance Petition-Limitation for, from notice of grievance-Grievance petition, held, would be perfectly in time within three months of cause of action-Where order of termination was illegal or void ab initio, it was however, doubtful whether limitation would operate."
However this authority of Labour Court is neither a guideline nor binding upon this Tribunal. With this regard he referred PLD 2006 Quetta 30 the facts & circumstances of referred authority are quite different with the case in hand. The referred authority pertain to the jurisdiction of Revenue Court. Similarly 2002 SCMR 122 is with regard to rectification of decree by executing Court for the reasons that Judgment & decree passed by Honourable Supreme Court and after attainting finality cannot be modified by executing authority.
12. Coming on the point of condonation of delay under Section 5 of Limitation Act which is reproduced as under: "Extension of Period in certain case.-- Any appeal or application for [a revision or] a review of judgment or for leave to appeal or any other application to which this section may be made applicable [by or under any enactment] for the time being in force may be admitted after the period of limitation prescribed therefor, when the appellant or applicant satisfies the Court that he had sufficient cause for not preferring the appeal or making the application within such period."
Benefit under Section 5 of Limitation Act can only be availed if a party has acted in good faith and with due diligences. Each case proceeds on its own facts, therefore diligences & good faith would be determined on the facts of each case and no formula of inflexible or universal application can be laid down in abstract form. Due diligences and good faith appearing in Section 14 of Limitation Act but the same is not applicable under Section 84 of BIRA, 201G. The Honourable Supreme Court of Pakistan in PLD 2000 Supreme Court 94 observed that the question of condonation of delay has to be examined on the basis of Section 5 and not Section 14 of Limitation Act. It is further observed that it is to be remembered that expressions "Due Diligences" and "Good Faith" appearing in Section 14 do not figure in Section 5 and conditions prescribed in the latter Section for its applicability is "sufficient cause" but what is sufficient cause is not capable of connotation with exactitude and would differ from case to case.
13. The facts of the case of appellant as stated in grievance application is the result of wrong advice of counsel he approached the Civil Court. The grounds mentioned in application under Section of 5 of Limitation Act are reproduced as under: "3. That after termination of the applicant without due process of law as enumerated in IRO, 2002, Standing Order Ordinance, 1968 and other laws of the land, the applicant knocked every door to get his grievance redressed before a competent Court of law diligently within time as according to IRO, 2002 before expiry of one month. It is further added that during pursuing that before competent Court of law the applicant left no stone unturned to pursue the Justice with due care and attention having good faith notwithstanding the fact that the applicant belongs to Naudero Sind.
4. That before the other Court of law, the respondent were also very much in attendance after duly noticed from the Court. It is worth nothing that after the instructions of the competent Court of law, as it was a continuation of the earlier suit, the current application has been filed before this Honourable Court.
5. That while pursuing the redressal of his grievances the applicant filed this application within time as provided in IRO, 2002, after the clear instruction of the earlier competent Court of law however, if any delay has occurred, this application is submitted before this Honourable Court, which could not be appended inadvertently, even otherwise without prejudice above narration no question arises regarding limitation in the peculiar circumstances of facts and law of this very application before this Honourable Court."
14. The learned counsel for respondent referred a judgment of Supreme Court (AJ&K) reported in 1992 MLQ page 1280 wherein held: "The benefit of the period spent by a litigant in purusing a remedy in wrong forum can only be extended to one who chooses the forum with due care or caution. He has to show that he was misled by some practice of the Court on an erroneous Judgment. If a litigant spends time in pursuing a remedy under a mistaken advice the period spent by him goes waste and no consideration can be shown in such a situation. On this point the law is settled as is apparent from a recent Judgment of this Court in, Masud Ahmed v. United Bank Limited. (Civil Appeal No. 46 of 1991) decided on 23.11.1991 (1992 SCMR 424)."
15. The grounds mentioned in application under Section 5 of Limitation Act cannot be deemed as "sufficient cause", in view of law, facts, circumstances and proceedings of the case.
16. Adverting to the question of termination order of appellant being illegal and void therefore the question of Limitation does not arise highly agitated by the counsel. No rule of universal application was that in an cases of void orders, question of limitation was to be treated mere technicality and a litigant was entitled to invoke the jurisdiction of a Court or Tribunal of competent jurisdiction at his sweet well at any time without showing any exceptional circumstances for the delay. The Honourably Supreme Court of Pakistan in 2004 PLC (Supreme Court) 468, held: "Case was decided on 27.11.1994 copy whereof was received by Civil Servant on 4.12.1994. Appeal was filed on 1.7.2000 without any plausible justification. Service Tribunal dismissed appeal being time-barred while observing that if original order was presumed to be illegal or void, even then there was no escape from prescribed period of limitation. Validity. Finding of Tribunal being well- founded did not warrant any interference. Such was a case of individual grievance. No question of law of public importance was involved. Supreme Court dismissed petition and refused leave to appeal."
17. Another important aspect of the case is that from perusal of record it revealed that the grievance notice dated 27.6.2009 issued on instruction of appellant by the counsel namely Arbab Tahir, Advocate which is the violation of provision of Section 41 of BIRA wherein it is mandatory that the grievance notice be issued by the workman himself or through his shop steward of collective bargaining agent. The Honourable Supreme Court of Pakistan in a reported Judgment in PLD 1980 Supreme Court 80 held: "Section 25-A. (1)-Words and phrases-Word "himself in Section 25-A(1) does not involve concept of agency-Grievance notice served by Advocate on behalf of his client-Held not conformity with requirement of law:- On this score too the grievance application was liable to be dismissed.
18. Due to law, authorities quoted and discussion made herein above I see no force in appeal.
Consequently appeal is dismissed with no order as to cost.
19. The copy of order alongwith original record of Trial Court. Case after completion be consigned to record.