ABDUL GHIAS NOUSHERWANI (MEMBER).--- The respondent/applicant challenged his dismissal order which read as under:--- "Now therefore, having considered the record of proceedings, the Authority in exercise of Powers vested under rule 5(1)(iv) read with Rule 3 of Government Servant (Efficiency and Discipline) Rules, 1973 hereby imposed major penalty "Dismissal from Services" as prescribed in Rule 4(1)(b)(iv) of said rules upon Muhammad Ibrahim Postman (BPS-7) with immediate effect. The criminal case bearing F.I.R. No.14/2011 against him is under trial before Honorable Anti-Corruption Court Quetta and recovery of Embezzled amount Rs.578,232 may be made through court of law. His name is struck off from the strength D.O. Quetta."
' According to judgment impugned and order sheet dated 7-9-2012 the notices of respondents/appellant were ordered to be served for 17-9-2012. On that date of hearing record reveals that inspite of several calls the respondents did not appear though the notices were served upon respondents. Therefore they were proceeded ex parte. Thereafter ex parte evidence in shape of affidavit submitted before learned Labour Court and the application of respondent/applicant was allowed by means of impugned judgment dated 20th November 2012 in Case No.27 of 2012 by Learned Presiding Officer 1st Labour Court Balochistan and concluded as under:--- "keeping in view all the documents, circumstances, statements of witnesses, petitioner and the bail order, I, reached to the conclusion that the Department-Respondents have had tried to save the main culprit/accused and have implicated the petitioner Muhammad Ibrahim Post man of Post Office Killa Abdullah. The reply of the Show-Cause is involving many persons in the misappropriation and embezzlement of the money relating to the Benzir Income Support Program (BISP). I, therefore do accept the application-petition filed by Muhammad Ibrahim Post Man Son of Gul Baran in the interest of Justice. The order-decision passed by respondents dated 7-6-2011 and 14-7-2012 are hereby set aside with direction to restore the petitioner on his back/last A position with all back benefits in the interest of Justice. The matter is before the Federal Investigation Agency, after the decision of Competent Court respondents are at liberty to deal with the applicant-petitioner Muhammad Ibrahim accordingly."
2. The learned counsel for appellant/respondent stated that the notices have not been served properly and ex parte judgment/order was passed without lawful authority for the reason that the establishment of post office runs under statutory rules and regulations and such matter does not fall under the jurisdiction of Labour Court. Next contended that the respondent/applicant was involved in a criminal case for embezzlement of Rs.570232 of Benzir Income Support Program (BISP).
' On the point of limitation the learned counse' states though an application for condonation of delay is accompanied with the appeal but the judgment impugned is void against which no limitation runs.' In support of his submissions referred two orders of Labour Court 1st Balochistan dated 28-8-2007 and 17-5-2008 wherein it were held that the Labour Court had no jurisdiction with regard to matter of post office. Another judgment of Federal Service Tribunal Karachi bench also referred wherein the employee of post office approached the Federal Service Tribunal being civil servant. The learned counsel for respondent strongly supported the judgment impugned and submitted that post office is an establishment as defined under provisions of Standing Order Ordinance, 1968 and other relevant Labour Laws. Further contended that under Standing Order Ordinance the respondent/applicant fall within the definition of worker/workman. Lastly contended that instant appeal is hopelessly barred by time and no reasonable cause mentioned iii application for condonation of delay.
3. This appeal has been admitted on 17-9-2013 subject to limitation. Apparently there is a delay of long period. In such situation it is necessary to resolve such delay because the point of limitation is a pure question of law.
4. The grievance application was filed before learned Labour Court on 7-9-2012 and on 17-9-2012 the appellant/respondents were proceeded ex parte. After completion of ex-parte evidence judgment was announced on 20-11-2012. Record reveals that on 18-7-2013 application for obtaining certified copy was submitted on behalf of respondents and the same was prepared and delivered on 23-7-2013. Civil Miscellaneous Application No. 24 of 2013 is an application on behalf of appellant/ respondents for condonation of delay. The facts mentioned in the-application for condonation of delay at Para No.2 is relevant which is reproduced as under: "That in fact recently received the notice with regard to pass the judgment during the pendency of the Application of the respondent. However, immediately application was moved for obtaining the certified copy and received the same. The matter was brought into the notice of the Higher Authorities of the Postal Services. In fact, no notice was served upon the appellants, but it has transpired after obtaining the copy of the judgment that the notice of the service issued by the Learned Trial Court was man-overed by the respondents, rather has mixed up with some officials, whose are trying to extend the benefit in favour of the respondents and obtain the ex-parte judgment fraudulently by concealing the facts."
' From above Para it reveals that notices were not served upon appellant/respondents rather notices of the trial court was man-overed by the respondent/applicant and some officials mixed up and tried to extend the benefit in favour of respondent/applicant and got ex parte judgment fraudulently by concealing the facts. For a delay of condonation section 5 of Limitation Act is applicable in BIRA, 2010 which read as under, "[Section 5] 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 enforce may be admitted after the period of limitation prescribed therefore, 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.
Explanation--- The fact that the appellant or applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period of limitation may be sufficient cause within the meaning of this section."
In view of examples of sufficient cause and delay of each and every day which has not been explained for the reason that Para No.2 of application does not disclosed the role of some officials who tried to extend the benefits to respondent/applicant as well as their names has not been mentioned. It was also not mentioned that how the notices were man-overed. In such view the same is not a sufficient cause.
5. For the sake of arguments if the period from date of announcement of judgment i.e. 20-11-2012 and after delivery of certified copy of impugned judgment dated 23-7-2013 be excluded for the reason that the appellant/respondents were unaware about the impugned judgment even than after obtaining the certified copy of impugned judgment there is a delay of 54 days and this period has not been explained. For the cost of repetition the certified copy of impugned judgment received on 23-7-2013 and appeal filed before this Tribunal on 17-9-2013 but no explanation offered neither in said application nor during the course of arguments.
6. Learned counsel for appellant/respondents based his arguments with regard to limitation and contended that the judgment was passed without law full jurisdiction is a void order against which no limitation runs.
7. Again for the sake of arguments if this plea be considered even then it is settled principle of law that void order be set aside by process of law within reasonable period. In a reported judgment in PLD 2003 Karachi 691 it is held, "Void Order:-- ----Effect of void order---Principles---Void order is nullity in the eye of law and does not confer any rights on the parties---Party adversely affected by void order should take resort to proper proceedings for getting the same set aside in accordance with the provisions of law as and when it comes to the knowledge of the affected party."
' Similar view taken by honourable Supreme Court of AJ&K in another judgment reported in 2003 YLR 1752 wherein held:--- "A void order must be challenged within a reasonable time if the same adversely affects the interest of a person. Indolence and negligence of such person cannot be excused."
' As stated above that if it presumed that the appellant/respondents became in knowledge about the impugned order after receiving certified copy on 23-7-2013 but came forward and filed instant appeal on 17-9-2013 without any reasonable ground. Similarly in a reported judgment 2010 PLC 104 it is held:--- "Ss. 3 and 5---Limitation---Limitation would shut the door and bar the remedy---Statutes of limitation were statutes of response---It was in the interest of Society and the community at large that after a certain lapse of time the citizens and the parties must be allowed ease of relaxation of their vigils."
' In a similar case with regard to condonation of delay the honorable Supreme Court of Pakistan in PLD 2003 Supreme Court 628 held:--- "When the delay in filing the appeal was seemingly due to mere negligence and carelessness of the appellant who failed to pursue his case with due diligence, he was not entitled to any indulgence by the Supreme Court---When on the day period of limitation expired, copies of the impugned judgment were available with the appellant and appeal could have been filed in time, delay regarding time consumed between preparation of copies and its delivery was condoned but each day after expiry of period of limitation, having not been satisfactorily explained appeal was liable to be dismissed as time-barred--- Involvement of valuable rights would not furnish a proper ground for condonation of delay in a civil matter---Door of Justice was ' closed after the prescribed period of limitation had elapsed and no plea of injustice, hardship or ignorance could be of any avail unless the delay of each day was properly explained and accounted for."
The point of limitation and condonation of delay is a pure question of law and Courts are under legal obligation to take notice of the same if the point has not been raised by the parties.
Honorable Supreme Court of Pakistan in PLD 2002 Supreme Court 403 observed as under:--- "(b) Limitation--- ' ----Question of limitation---Duty of Court---Scope---Bounden duty of Court to notice the question of limitation, irrespective of the fact whether the question had been agitated or not---Any order or judgment passed by Trial, Appellate or Revisional Courts should be indicative of the fact that the Courts concerned were not only aware but were conscious regarding the question of limitation to be dealt with the same diligently with application of mind prior to dilating upon and deciding the controversy on merit because disposal on merit alone was not sufficient to presume that the delay was condoned."
The law, judgments of superior Courts and discussion made hereinabove the appeal is hopelessly barred which accurated a right in favour of respondent/applicant. Therefore cannot be condoned without any sufficient cause.
8. The upshot of above discussion is that the appeal filed after limitation period cannot be proceeded ahead. Consequently the order impugned is upheld and appeal is dismissed with no order as to cost.
9. The copy of order along with original record of trail Court be sent to trial Court. Case after completion be consigned to record.
Appeal dismissed.
2014 PLC 341 [Sindh Labour Appellate Tribunal] Before All Muhammad Baloch, Member MCB BANK LTD. through VP and Attorney versus GHULAM MUHAMMAD MEMON Labour Appeal No,KAR-275 of 2011, decided on 20th August, 2013.
(a) Industrial Relations Ordinance (XCI of 2002)--- ----Ss. 48(1), (3) & 62--Industrial Relations Act (IV of 2008), Ss.55(3), (4) & 70---Recovery of back benefits---Salary/wages payable prior to dismissal---Labour Court granted the wages accrued from the date of dismissal of the respondent/workman---Employer challenged the order of Labour Court before Labour Appellate Tribunal---Contention of the employer/petitioner was that claim of respondent/workman as to salary/back benefits prior to dismissal was illegal and therefore the order of Labour Court was not justified--Validity--Amount in question was not payable under any settlement, award or decision of the, Labour Court, but the same pertained to the period prior to the dismissal of respondent employee---Labour Court had wrongly allowed the payment to respondent employee/workman---Order of Labour Court was set aside---Appeal was accepted.
[p. 343] A Syed Niaz Hussain Shah Bukhari v. Oil and Gas Development Corporation 2003 SCMR 228 rel.
(b) Sindh Industrial Relations Act (XXIX of 2013)-- ----Ss. 48, 62 & 63---Revisional jurisdiction of Labour Appellate Tribunal---Scope---Order of Labour Court passed under S.62 of Industrial Relations Act, 2013 was challenged before Labour Appellate Tribunal in appeal--Validity--Section 48 of the Sindh Industrial Relations Act, 2013 had provided an appeal against an award, decision or sentence given or passed under S.34, 43 or 45 but had not provided any appeal against the order passed under Ss.62 & 63 of the Sindh Industrial Relations Act, 2013---Appeal against the decision under S.62 was not maintainable---Section 48(5) of Sindh Industrial Relations Act, 2013 had provided remedy of revision to the aggrieved party, so under the law revision was available to the party but not the appeal---Sindh Labour Appellate Tribunal had found that the Labour Court had committed an error, therefore appeal filed before the Tribunal was converted into revision and the same was allowed. [p. 344] B Shoukat Ali Choudhry for Appellant.
Respondent in person. Date of hearing: 19th August, 2013.
DECISION ALI MUHAMMAD BALOCH (MEMBER).--- By this order, I would like to dispose of the above- mentioned appeal filed by the appellant against the order dated 15-10-2011 passed by the learned Presiding Officer, Sindh Labour Court No,1, Karachi, in Application No,41 of 2011 under section 62 of the Industrial Relations Ordinance, 2002 (replaced). I have heard Mr. Shoukat Ali Chaudhry, learned Advocate for the appellant, and Mr. Ghulam ,Muhammad Memon, the respondent in person. I have gone through the record and proceedings of the case, synopsis of arguments filed by the Advocate of the appellant and verbal arguments advanced by both the parties and have come to the following conclusion.
' Perusal of the record reveals that the respondent Ghulam Muhammad Memon was dismissed on 23-2-2001. He filed grievance Application bearing No,97 of 2001, wherein he challenged his dismissal exactly in the following words: "The Hon'ble Court may be pleased to set aside the order of dismissal of respondents from service dated 23-2-2001 and direct the respondent to reinstate the respondents in service with all back benefits and continuity in service."
' The relief sought in the Application was very clear. The back benefits allowed by the Labour Court accrued from the date of dismissal of the date of reinstatement. Neither there was any prayer nor any decision of Labour Court in respect of any payment for period before date of dismissal. If any amount on account of salary/wages was payable to the respondent prior to date of dismissal, the same cannot be considered as back-benefits, therefore, the amount claimed by the respondent is beyond the scope of decision of Labour Court, and does not fall within the term "back-benefits". The record further shows that the wages/salary effective 23-2-2001 of the respondent as per order of the High Court was deposited with the Nazir of High Court and the same was withdrawn by the respondent without any protest and demure. Therefore, the respondent's claim as to salary till May, 2001 is totally illegal, beyond the scope of section 70 of I.R.A., 2008.
' Mr. Shoukat Ali Chaudhry, Advocate, in his arguments stated that if the amount mentioned in the impugned order (for the period prior to dismissal) was payable to the respondent, he could have filed an application under section 15 of the Payment of Wages Act, 1936, before the Authority appointed under the Payment of Wages Act, which is the proper forum and not under section 70 of the I.R.A. 2008, before the learned Labour Court.
In view of the above state of law, I am in agreement with submission of the learned Advocate of the appellant. The learned Labour Court has wrongly allowed the payment of Rs,189,756 to the respondent by exercising its powers under section 70 of I.R.A. 2008, because the amount in question was not at all payable under any settlement, award or IA decision of the Labour Court, but this pertains to the periods prior to the dismissal of the respondent/employee.
' Furthermore, the period of 4 months 22 days during which the respondent did not perform his duty not at all payable to him. The appellants in Para 7 of their affidavit-in-evidence have specifically stated that during the period effective 1110-2000 to 23-2-2001 the respondent did not perform his duty. This statement of the respondent was not challenged during the cross-examination of the respondent's witness. The respondent neither made any statement in his evidence that he did perform his duty during the said period nor produced any other evidence, therefore, on the basis of principle "no work no wages", the appellants are not liable to pay the salary of the respondent for the said period of 4 months 22 days. Mr. Shoukat Ali Chaudhry, Advocate on this point referred to the case of Syed Niaz Hussain Shah Bukhari v. Oil and Gas Development Corporation reported as 2003 SCMR 228 (231), when it has been held as under:-- "We have considered the arguments of the learned Counsel for the parties and have carefully examined the record, which shows that the period for which recovery of refund of the salary was effected from the respondents- was the period for which he did not work. By now, it is settled law that when there is no work there is no pay. The respondents did not perform his duty as mentioned hereinabove and recovery was rightly effected from him."
' Mr. Ghulam Muhammad Memon, the respondent, supported the impugned order of the learned Labour Court and further pointed out that the instant appeal is barred by time as the same has been filed beyond the period prescribed under the law. In reply to this objection of the respondent, Mr. Shoukat Ali Chaudhry, Adv, has explained that October 15(sic), 2011 (Saturday), when the impugned order was announced/ declared holiday on account of sad demise of Begum Nusrat Bhutto (Madre Jamhuriat.). October 16, 2011 was Sunday, the appellants came to know about the impugned order on October 17, 2011 and on the same day they applied for certified copy of the said order. Copy of the impugned order was delivered to the appellants on October 20, 2011. The time/limitation for filing appeal starts effective October 21, 2011 and expired on November 19, 2011, whereas the memo of appeal was presented on November 18, 2011 i.e, within 30 days from the date when the learned Labour Court re-opened on October 17, 2011 after two holidays (i,e, October 15 and October 16, 2011).
Though the merits have led me to conclude in favour of the appellant but the law of Industrial Relations does not provide any appeal against the order passed under section 62 or 63 in the present Sindh Industrial Relations Act, 2013, as section 48 of Sindh Industrial Relations Act, 2013, provides an appeal against an award, decision or sentence given or passed under section 34, 43 or 45, therefore, the appeal against decision under section 62 is not maintainable but section 48(5) provides remedy of revision to the aggrieved party, so under the law, Revision is available to the party but not the appeal, therefore, I am using power of Member, Sindh Labour Appellate Tribunal, under section 48(5) being come to know that the learned Labour Court has committed an error; hence I covert this Appeal into Revision and as per above discussion, allowed the same.
' In the above explanation as to limitation forwarded by Mr. Chaudhry fully conform with the record of the case, therefore, the instant appeal was filed within the time prescribed by law.
' In view of what has been discussed above, this appeal is accepted and the order dated 15-10-2011 of the learned Labour Court to the extent of deposit of Rs,189,256 is set aside.