The appellant assailed the judgment dated 31/12/2012 in case No 13/2012 passed by Learned District & Session Judge/presiding Officer Labour Court 1st Balochistan Quetta wherein the application of respondent was allowed.
2. The case of respondent/applicant is that he was appointed by the respondent as Helper on 30/6/1996 and at that time his date of birth according to his National Identity Card was mentioned as 1963. It is further stated that thereafter he obtained computerized National identity card Bearing No, 51602-5490615-3 wherein by mistake of NADRA his date of birth was mentioned as 1952 instead of 1963. According to applicant/respondent he approached the NADRA authority but they refused to correct his date of birth. Resultantly he filed a civil suit Bearing No, 32/2010 before the Court of Qazi Sarawan District Mastung and such favorable decree passed on 26/4/2010 with direction to NADRA authorities for correction of his date of birth. It is further stated that the appellant/respondent through memorandum dated 4/1/2012 retired him due to attaining the age of 60 years inspite of the fact that in view of judgment/decree passed by Civil Court a new computerized National Identity Card issued by NADRA wherein date of birth was corrected as 1963.
Lastly it is stated that he issued grievance notice sent through TCS and on refusal he approached the Learned Labour Court with the prayer that the letter dated 4/1/2012 issued by respondent/appellant be set aside and his services may be restored according to his date of birth mentioned in Computerized National Identity Card issued by NADRA.
3. Contrary to above the case of respondent/appellant is that the date of birth of applicant/respondent was mentioned in Computerized National Identity Card Bearing No, 51605- 5490615-3 as 1/1/1952. It is further stated that the same has also been annexed with the application by the applicant/respondent according to that he attained the age of 60 years as per Services Rules, he was to be retired accordingly.
4. The Learned Presiding Officer after framing required issues recorded the evidence produced by the parties allowed the application of applicant/respondent with following observation/directions.
"As such the Issues No, 1 and 2 have been settled in favour of petitioner, thus the Issues No, 3 and 4 are resolved in affirmative and petitioner is entitled for the relief claimed for. I, therefore do accept the petition of the petitioner and the letter dated 4/1/2012 is hereby set aside and declared illegal and unlawful. Further the service of petitioner is restored with all back benefits as Helper, while respondents are directed to reinstate the service of petitioner according to correct Date of Birth 1963, mentioned in Computerized National Identity Card issued by NADRA, which has been brought on the record of the Department without any delay"
5. This appeal was admitted subject to limitation for the reason that the judgment impugned was passed on 31/12/2012. The appellant applied for certified copy of judgment on 12/2/2013 which was prepared and delivered on the same date and instant appeal was filed on 15/2/2013. In this regard an application under Section 12 of Limitation Act has been filed for condonation of delay but it appeared that Section 12 was mentioned inadvertently. However it is to be deemed to be filed under Section 5 of Limitation Act which is reproduced as under to examine the same with the ground mentioned in application and arguments advanced at the time of hearing, "[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"
6. The learned counsel for appellant contended that the impugned judgment was passed on 31/12/2012 and that date was last working day because on the next day winter vacations of Courts were to be commenced, therefore certified copies has not been obtained within the prescribed time. This ground also taken in the application. Further it is stated that appellant/company having its Head Office at Karachi and instant appeal has to be filed after obtaining approval from Karachi.
On the other hand the learned counsel for respondent submitted that the ground taken by appellant is not a sufficient cause as required by the law. Further contended that the delay of each and every day has not been stated/explained neither in application nor by the learned counsel for appellant in his arguments.
7. Under Section 54(2) of BIRA, 2010, thirty days are provided for filing appeal before Tribunal against the judgment/order of Learned Labour Court. For the cost of reputation judgment impugned announced on 31/12/2012 but the appellant/applicant submitted application for obtaining certified copies of the impugned judgment on 12/2/2013 and the same was prepared and delivered to appellant/applicant on the very day whereof he filed appeal before this Tribunal on 15/2/2013 along with application under consideration.
8. The learned counsel for appellant taken the ground for condonation of delay inter alia that due to winter vocations of the Courts and having its head office at Karachi which are not sufficient grounds for condonation of delay. If the ground of winter vacation be taken into consideration (which is not a sufficient ground) even than record does not support this contention. Firstly admittedly the winter vacation was for one month but instead of any early date of February filed application for certified copy of judgment on 12/2/2013. Meaning thereby the application for obtaining certified copies and instant appeal are hopelessly time-barred. From record it appears that the appellant/respondent was represented by one Major Asif Hussain (R) S/O Ishaq Deputy Chief Manager Sui Southern Gas Company Quetta and the authority letter has been issued by Harron Rasheed S/O Musa Jan Deputy General Manager (DD) Sui Southern Gas Company Quetta.
Meaning thereby if the counsel has proceeded to enjoy winter vacation than it was obligatory for the representative to apply for certified copies and it was also prime duty of the Deputy General Manager to make arrangement for filing the appeal in time. Furthermore the instant appeal filed by one Mr. Shahms-ud-Din Khan Assistant Manager(legal) Sui Southern Gas Company Quetta who was authorized by one Mr. Muhammad Arif Latif S/O Sheikh Latif Deputy Chief Manager (Legal Services) Sui Southern Gas Company Ltd. From perusal of this authority letter it appears that the appellant company has a large branch of legal services. Admittedly they were aware about the decision of case and filling of appeal. In view of above discussion appeal is hopelessly barred by time.
9. However in view of authorities' of Honorable Apex Courts a person may not be non-suited on technical grounds including point of limitation ra4r the case is to be taken on merit. The respondent/applicant produced PW-I Manzoor Ahmed who fully support the case of applicant/respondent and nothing came on record favorable to appellant/respondent. PW-II Munawar Ali is the representative of NADRA who verified the National Identity Card wherein the date of birth of applicant/respondent is mentioned 1963. Apart from above evidence it was objected that the grievance notice has not been served. On this behalf an issue also framed. On this issue PW-IV Malik Ahmed Aziz representative of courier service produced the record of his office which confirmed that grievance notice has been received by one person namely Latif on 20/2/2012. This witness has not been cross-examined. The applicant/respondent also interred in witness box and supported his case but in spite of lengthy cross-examination nothing favorable brought on record.
The appellant/respondent only recorded the statement of representative namely Major Asif Hussain who is inagreement with the plea of applicant/respondent that at the time of his appointment his date of birth was mentioned in identity card as 1963 but thereafter obtaining the Computerized National Identity Card the same has been mentioned as 1952. He also in cross- examination admitted that in view of the decree passed by Civil Court NADRA corrected the date of birth. In cross-examination he admits, {{URDU TEXT}} Again stated, {{URDU TEXT}} With regard to grievance notice the representative in cross-examination stated, {{URDU TEXT}} Again stated, {{URDU TEXT}} In view of above evidence the case of applicant/respondent is also strong and according to law he was entitled for relief claim before Learned Labour Court.
10.What discussed herein above upshot is that the judgment dated 31/12/2012 in case No, 13/2012 passed by Learned District & Sessions Judge/Presiding Office Labour Court 1st Balochistan Quetta in not open for any interference by the Tribunal. Therefore the above said judgment is upheld.
Consequently appeal is dismissed having no merit/force. However the parties are left to bear their own costs.
11.The copy of order along with original record of trial Court be sent to trial Court. Case after completion be consigned to record.