ABDUL GHIAS NOUSHERWANI (MEMBER).-- The appellant challenged the judgment dated 29-5-2013 in Case No.22 of 2012 passed by Learned District and Sessions Judge Presiding Officer 1st Labour Court Balochistan wherein application of appellant was dismissed.
2. For disposal of instant appeal the background of the matter is that appellant/applicant was appointed as UDC in the Department of respondent on 9-8-1999. After joining the service the appellant/applicant was demoted along with the three others as LDC. According to version of appellant/applicant that on 30-6-2011 he came to know that Azhar Farooq and some others officials were appointed on the same year as UDC remain on their posts and were not demoted. He further states that on the same day he submitted an application/appeal before Authority but the same has not been disposed of till 8-6-2012. Thereafter he issued grievance notice which was followed by grievance petition on 19-7-2012. After submission of written statements five issues framed but the case was dismissed on legal objection J and K.
3. The learned counsel for appellant contended that learned Presiding Officer without recording evidence decided the matter, firstly on the ground of misjoinder/non-joinder of necessary parties and secondly on point of limitation. The learned counsel further contended that on the point of misjoinder/non-joinder of necessary parties suit cannot be dismissed. In support of this contention he relied upon reported judgment 1997 CLC 2495 and 2003 MLD 1612. On the point of limitation the learned counsel contended that limitation start from the date of knowledge i.e. 3-6-2011. Secondly contended that the appellant/ applicant is in service meaning thereby it is a continuity of the cause of action. The learned counsel further contended that under Article 25 of the Constitution of Islamic Republic of Pakistan 1973 the appellant/ applicant be treated equally with that of Azhar Farooq and others who are still performing their duties as UDC. The learned counsel for respondent on the other hand contended that the appellant/applicant slept over his right for about 12 years therefore the limitation starts from the date of his demotion. Secondly contended that against demotion order no hesitation in shape of appeal/application has been taken by appellant.
4.From perusal of available record it appears that the appellant was appointed as UDC on 9-8- 1999 and just after 10 days he was demoted as LDC and still on the same post. According to appellant on 3-6-2011 he came to know about other colleagues who were appointed in the same year/batch and still they are working in capacity of UDC.Thereafter he started correspondence and ultimately filed grievance petition which was dismissed in view of legal objection J and K.
3. Taking into consideration legal objection K with regard to non-joinder and misjoinder of necessary parties. This provision mentioned in C.P.C. as Order I, Rule 9 which is reproduced as under:--- "No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so for as regards a right and interests of the parties actually before it."
' Learned counsel for appellant in this contest referred 1987 CLC 249 and 2003 MLD 1612 which fully explain provision of Order I, Rule 9 of C.P.C. Therefore the Learned Presiding Officer wrongly assumed that the point of the non-joinder and misjoinder of necessary parties the suit would be dismissed.
6. Coming on the point of limitation under objection J the learned Presiding Officer concluded on this point as under:--- "From 1999 till 2011 and 2012 the petitioner remained silent without any agitation and continuously was performing his duties with his own free will and consent. So at this very belated stage he has come before this honorable Court on 10-7-2012, by filling this application/petition, which is hopelessly time barred and is showing no solid and sufficient cause or condonation of delay. Even otherwise the application for condonation of delay has not shown any provision of law, then how the applicant can request for condonation of delay for filing of the case? Thus the Legal Objection 'J' is very much proved and accepted. So at this stage the time has come to conclude the matter that either it is time barred or not? In the light of documents relied by petitioner it is proved that petition being time barred is not maintainable. Objection 'J' is accepted."
Admittedly section 5 of Limitation is applicable in BIRA, 2010 Even otherwise on non-mentioning the ' relevant provision of law or wrongly mentioned the relevant provision of law are not fatal to the suit / proceedings. However the period of 12 years i.e. from 9-8-1999 to 3-6-2011 is a very long period: The ground mentioned in condonation application are general in nature which is reproduced as under:--- "That it came in the knowledge of the applicant as on 3-6-2011, that his colleague was not reverted and some were promoted, moreover some other people are promoted as UDC and as soon it came into the knowledge of the applicant, the applicant filed an appeal and then served a grievance notice to respondent neither appeal was decided nor the grievance was replied, hence this application."
The ground mentioned here in above is not sufficient ground for condonation of delay of 12 years.
The learned counsel for appellant/ I applicant in this behalf referred a reported judgment of honorable Supreme Court of Pakistan 1992 SCMR 365 the operative portion is reproduced as under:--- "They approached this Court, within time for the date of their knowledge of this order but somewhat late, as from the date of the order of the High Court impugned by them. What happened subsequent to the decision of the High Court and before the departmental authorities and the Service Tribunal is a long story, but neither relevant nor necessary for the present adjudication.
Considering that the appellants were not parties to the proceedings, that they are within time from the date of their knowledge and that the issue relates to the constitutional jurisdiction, they delay whatever is occurred, is condoned."
' The above authorities is with regard to Article 212 of the Constitution of Punjab Civil Servants Act. It appears that petitioner in above cited case was not a party in the proceedings so he came to know about the order passed in his absence therefore the same has been condoned. The law as well as fact of circumstances of above quoted judgment are quite different from that of in hand.
Furthermore the appellant was serving continuously in the same department with other colleagues but he slept over his right for a long period of 12 years. No such documents material has been brought on record in support of his plea that how he came to know about the others UDC's. The learned counsel contended that Superior Courts always encouraged the matter to be decided on merit rather the litigant be non-suited on technicalities including limitation but in this case the conduct of applicant also came in his way to cover the long span of 12 years. Furthermore no such material brought on record or mentioned in appeal/application for condonation to show how he came to know. Therefore this period is not a technicality rather the silence of applicant/appellant accurated some right to the others which cannot be abolished by allowing such delay. Lastly the learned counsel referred a reported judgment 2009 SCMR 187 = 2009 PLC (C.S.) 523 which is with regard to Article 25 of the Constitution, i.e. equal treatment of all similarly situated is the basic principle on which rests Justice under the law. Of course this is the basic principle of social justice but it was for the appellant/applicant to challenge the said order immediately when he was demoted in the year 1999. After 12 years he came before the court, in view of prevailing law and procedure which are not in favour of appellant/applicant. Therefore rightly the application/appeal of appellant/ applicant was dismissed on the point of Limitation by learned Presiding Officer. The appeal has no force to interfere with the decision of Learned Labour Court. Consequently the order impugned is upheld and appeal is dismissed with no order as to cost.
7. The copy of order along with original record of trial court be sent to trial court. Case after completion be consigned to record.