1. GHULAM MUSTAFA MUGHAL, C.J.--- Through this petition filed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, judgment and order passed by the learned Labour Appellate Tribunal dated 27-6-2013 has been challenged for having been passed without lawful authority.
2. ' Precise facts of the case are that private respondent, herein, was regular employee of the United Bank Limited. He was proceeded for misconduct under the Staff Service Rules and ultimately was dismissed from service in 1997. The said respondent filed an application under sections 2(13), 18, 30 and 63 of the Azad Jammu and Kashmir IRO, 1974 (hereinafter to be referred as IRO) before the Labour Court, Muzaffarabad on 3-9-1996, which was dismissed on 25-3-1999. Respondent herein, preferred an appeal before Labour Appellate Tribunal on 27-3-1999, which was also dismissed on 6-12-2000. The judgment and order of the Labour Appellate Tribunal was challenged through writ petition under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974 before this Court on 21-2-2001 and the same was dismissed by a division bench of this Court vide judgment dated 11-4-2008. The respondent herein, preferred an appeal before the apex Court on 24-6-2008.
3. The apex Court vide judgment and order dated 4-10-2012 accepted the appeal and vacated all the orders passed by the subordinate Courts and remanded the case to the Labour Court for fresh decision on merits. The learned District Judge/Labour Court after necessary proceedings accepted the petition vide judgment and order dated 12-1-2013. Feeling aggrieved from the judgment, petitioner herein, filed an appeal before the learned Labour Appellate Tribunal on 12-2-2013: which was dismissed on account of limitation vide judgment and order dated 27-6-2013 passed by the learned Labour Appellate Tribunal. The judgment and order passed by the Tribunal has been challenged through the captioned petition on the ground that Tribunal has not appreciated the record and relevant provisions of law as well as arguments advanced on behalf of the petitioner in its true perspective. It is further stated that the time requisite for obtaining copy of the judgment was liable to be excluded while computing the limitation because the Court was closed for Sunday and Monday. It is further stated that after excluding these 2 days the appeal before the Tribunal was within the prescribed period of limitation and was liable to be decided on merits.
4. ' The petition has been contested by the respondents by filing written statement wherein they have pleaded that petition has rightly been dismissed because the same was filed after the prescribed period of limitation. It is further pleaded that matter relates to special law i,e, the Industrial Relations Ordinance, hence, Limitation Act does not apply. It is contended that as the petitioner has not filed an application for condonation of delay under section 5 of the Limitation Act hence, was not entitled to condonation of delay.
5. ' Mr. Muhammad Idrees Mughal, the learned Advocate appearing for the petitioner vehemently argued that the judgment of the learned Labour Appellate Tribunal is against the facts and law because the appeal before him was not time barred hence, it was enjoined upon the Tribunal to decide the case on merits. The learned Advocate further argued that the learned Tribunal has not considered section 5 of the Limitation Act in its true perspective and erroneously held that provisions of sections 4 to 18 of the Limitation Act has been specifically excluded by IRO. The learned Advocate contended that judgment of the Labour Court was announced on 12-1-2013 without dictating the order and signing the same as was required by section 45(1) of IRO, He further contended that petitioner applied for copy of the judgment but it was told that judgment has not been handed down. The learned Advocate also submitted that copy of the judgment was supplied to the petitioner on 15-1-2013 and appeal has been filed before the Appellate Tribunal on 12-2-2013.
6. The learned Advocate further submitted that assuming for the sake of argument, judgment was announced after dictating the same on 12-1-2013 even then, the day on which the judgment was announced was liable to be excluded because the provisions of section 12 have not been specifically excluded by section 29 of Limitation Act and the following 2 days were holidays. It was Sunday on 13-1-2013 and the next date 14-1-2013 was declared holiday due to sad demise of Syed Ejaz Gillani, ex-Assistant Advocate-General Azad Jammu and Kashmir therefore, at least these two days were liable to be given to the petitioner in view of section 5 of Limitation Act as well as the other enabling provisions of the said Act. The learned Advocate placed reliance on the following cases:---
(1) Muhammad Amin v. Muhammad Hameed and 2 others (2001 MLD 525)
(2) Haji Abdullah through his legal heirs and another v. Jaffar through his legal heirs (1987 CLC 664).
7. ' Raja Amjad Ali Khan the learned Advocate appearing for the respondents vehemently argued that judgment of a special tribunal can only be set aside when it is shown that Tribunal has exceeded the jurisdiction conferred on it by law or has not excised the jurisdiction vested in it or judgment is arbitrary or contrary to any other provision of law. The learned Advocate further argued that in the instant case appeal was filed after prescribed period of limitation therefore, the learned Tribunal has not committed any illegality while dismissing the appeal, therefore, the petition is liable to be dismissed. He contended that only section 5 of the Limitation Act is made specifically applicable to the proceedings under IRO vide section 77 of Ordinance hence, the other provisions relied upon by the learned Advocate for the petitioner cannot be resorted to. The learned Advocate placed reliance on following cases:---
(1) Muhammad Aslam and another v. Muhammad Rashid (2006 SCR 11).
(2) Muhammad Nazir and others v. Khan Afsar Khan and others (1993 SCR 112).
(3) Mahboob and another v. Muzaffar Din (1992 SCR 338).
(4) Muhammad Iqbal Khan and another v. Parveen Shakir (2013 SCR 85)
(5) Muhammad Arshad Khan v. Muhammad Kaleem Khan and 7 others (PLD 2007 SC (AJ&K) 14).
(6) Azad Government of the State of Jammu and Kashmir and other Haji Summandar Khan and others 1995 MLD 1350.
8. ' We have heard the learned counsel for the parties and gone through the record of the case.
9. ' The learned Tribunal has dismissed the appeal of the petitioner on the ground of limitation while concluding as under:--- "It will be seemed that the first part of section 42 expressly postulates that an appeal before the Labour Appellate Tribunal, can be filed within 30 days of the delivery of decision. A reading of the impugned decision dated 12-1-2012, reveals that representative of appellant moved an application for certified copy of the impugned decision on 15-1-2013, which was supply to the said representative on the same day. As per section 12 of Limitation Act, 1908, which postulates that in computing period of limitation prescribed for any suit, appeal or application the time requisite for obtaining a copy of the order appealed from cannot be excluded as section 77 of the Azad Jammu' and Kashmir Industrial Relations Ordinance, 1974, excluded other provisions except Section 5 of the Limitation Act, 1908. Even otherwise as application for copy of impugned decision was moved on 15-1-2013 which was delivered to the representative of appellant on the same day, therefore, period for obtaining copy is not deductible. As the impugned decision was passed by the trial Court on 12- 1-2013, against which instant appeal was filed on 12-2-2013. However, 30 days period was expired on 11-2-2013, therefore, appeal is barred by one day. The appellant neither moved an application for condonation of. delay nor explained any reason, whatsoever, in the memorandum of appeal for one day delay. The appeal, therefore, must be buried at its initial stage without adverting the other legal points, as hit by law of limitation."
10. ' It is an admitted position between the parties that section 5 of the Limitation Act is applicable to the appeals and other proceedings which are to be preferred under IRO. Section 5. of Limitation Act has been amended in Azad Jammu and Kashmir vide Act No,IV of 1997. For appreciating the controversy in its true perspectives both (Un-amended)
5. Extension of period in certain cases. Any appeal or application for a revision or a (Amended)
11. Extension of period in certain cases any suit, appeal or application for a revision or a ' (Un-amented) and amended provisions of the Limitation Act are reproduced as under:--- ' review or judgment or for leave to appeal or any other application to which this section may be made applicable by or under any enactment of the time being in force 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 review of judgment or for leave to appeal or other application may be admitted after the period of limitation prescribed therefore, when the plaintiff, appellant or applicant satisfies the Court that he had sufficient cause for filing the suit, preferring the appeal or making the application within such period.
12. The above-reproduced provision of law clearly shows that a Court or Tribunal to whom the appeal is preferred after prescribed period of limitation can admit the same for regular hearing provided that the party shows sufficient cause for not filing appeal or other proceedings within statuary period because the words "to which this section may be made applicable by or under any enactment of the time being in force" have been deleted by amending provision which means that section 5 would be applicable to the proceedings even under special law. The question as to whether appellant/petitioner herein, was in possession of sufficient cause has not been considered by the learned Tribunal in view of the amended provision of law. A perusal of the record further reveals that Muhammad Fareed Sulehria respondent herein, applied to the Labour Court for copy of the judgment on 12-1-2013. There is a note of the Clerk of the Court on the application that judgment has not been handed down. The copy of the judgment was supplied to both the parties on 15-1-2013. It is also an admitted position that on 13-1-2013 it was Sunday and 14-1-2013 was declared as holiday by this Court due to sad demise of Syed Ejaz Gillani, Assistant Advocate- General therefore, two days even otherwise, were to be given to the petitioner for the purpose of limitation. Under section 45(1) of IRO it was enjoined upon the District Judge to announce the judgment after dictating and signing the same in the open Court. The mandatory provision has not been complied with by the learned Presiding Officer which put the parties in an ugly position. We are also of the view that section 10 of the General Clause Act, escaped the notice of the learned Appellate Tribunal which reads as under:--- "10. Computation of time.--- (1) Where, by any [Central Act] or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open: ' Provided that nothing in this section shall apply to any Act or proceeding to which the Indian Limitation Act, 1877, applies.
(2) This section applies also to all Central Acts and Regulations made on or after the fourteen day of January, 1887."
13. The above-reproduced provision of law clearly extends the benefit of holiday and the same can be treated as sufficient cause for admission of the appeal after prescribed period of limitation. An identical proposition has been examined in the following cases:---
(1) Safeer Travels (Pvt.) Ltd. through Chief Executive Safeerul Islam v. Muhammad Khalid Shafi through Legal Heirs (PLD 2004 SC 690);
(2) Sher Muhammad and 6 others v. Gul Fraz (1989 CLC 1344);
(3) Shafqat Hussain Shah v. Sakina Begum and others (1987 CLC 664);
(4) Muhammad Iqbal Khan and another v. Parveen Shakir (2013 SCR 85);
(5) Agricultural Development Bank of Pakistan Ltd. v. Noor Muhammad and 2 others (PLD 1985 Quetta 74):
(6) PLD 1957 W.P. Lahore 92 ' In the first case referred to herein-above at page 694 in para 7 it was observed as under:--- "In our view, even where provisions of section 9 of the West Pakistan General Clauses Act, 1956, or section 10 of General Clauses Act, 1897, in terms do not apply, the principles underlying said provisions can be invoked in appropriate cases in aid of justice, equity and good conscience. The legal maxim lex non cogit ad impossibilia is also attracted in such cases. The petitioner could not be penalized, as it was not possible to deposit the rent on the last date fixed by the Rent Controller on account of being bank holiday and public holiday. The impugned judgment of the High Court is not sustainable at law. The deposit of rent by the petitioner on the day following the holiday would be deemed to be a valid deposit as if made on the last day fixed by the Rent Controller in terms of section 16(1) of the Ordinance, 1979.
14. ' In the second case in para 8 of the report, it was observed as under:--- "It can be seen that the principle of section 9 of the General Clauses Act was applied basing on some earlier cases examined by different Courts. Accordingly, same here as well will have to be followed and the first day, i,e, day on which the order was made 25-10-1984 will not be counted and computation will be made from the next day, i,e,, 26-10-1984."
15. ' In the third case at page 666 it was held as under:--- "It is well-settled that the day on which an application for copy is made and the day on which the copy is granted are both part of the time requisite for obtaining the copy and thus, the petitioner was entitled to have both these days excluded while computing the period of limitation."
16. ' In Muhammad lqbal Khan's case in para 7 it was concluded that:--- "While reiterating the view express in our above referred three judgments, we may observe that although the Family Court Act is a special law and period of limitation is provided in the Act and Rules, the provisions of Limitation Act, 1908 are not applicable being general in nature but there may be an exception in a case i,e, under section 18 of the Limitation Act, which deals with the effect of fraud, if a particular case is covered by section 18 of the Limitation Act based on fraud and a party successfully proves that he/she was precluded from filing application/appeal/ suit, by means of fraud being kept away from the knowledge of such right, what is the effect of such fraud on application/ appeal/suit, can be considered by the Court."
17. ' In PLD 1985 Quetta 74 in para 5 of the report it was observed as under:--- "The statutes of limitation are statutes of repose. There was a serious risk of injustice arising if the period of limitation should be strictly applied, hence, the necessity for some provision to protect a bona fide applicant from the consequence of some mistake which had been made by his advisors in presenting his claim. With this object in view, some provision like section 14 of the Limitation Act were formulated and provided in the Limitation Act and it has to be applied liberally. Under section 5 of the Limitation Act two matters have got to be reconsidered (1) whether there was sufficient cause is not preferring the matter within time prescribed by law, and (2) whether there are circumstances which would justify the Court/Tribunal in exercising the discretion that is granted under that section for excluding the time."
18. ' Again the learned Division Bench observed that:-- "Sufficient cause should receive a liberal construction so as to advance substantial justice when no negligence nor inaction nor want of bona fide is imputable to the applicant."
19. ' Recently in a case titled Muhammad Siddique v. Muhammad Aslam and others (PLJ 2014 SC (AJ&K) 31) in para 16 it was observed as under:--- "From the foregoing we conclude that the respondent was entitled for exclusion of time actually spent in obtaining copies of judgment and decree from the date of application, i,e, 24th June to 9th August, 2003, the date when the copies were issued. Although the respondent moved applications for condonation of delay, but in view of conclusion drawn by us that after deducting the period of 47 days consumed in obtaining copies, the appeals before the High Court were within time, hence, the question of condonation of delay does not arise."
20. ' Similarly in Muhammad lqbal Khan's case referred to herein-above it was observed that though the provisions of sections 5 to 14 have been excluded but in certain cases where fraud is committed the benefit of the said provisions can be extended on the principle of General Law. We have examined the provisions of section 29 of Limitation Act as well as IRO. Section 5 of the Limitation Act has been made applicable to the proceedings before the Labour Court as well as Labour Appellate Court but sections 4 to 12 have not been specifically excluded. Where a provision has not been excluded specifically then theory of implied exclusion cannot be radially accepted. In a case titled Abdul Hameed Alvi v. A.D.B.P. Faisalabad, etc. (1989 PLC 474) it was observed that adoption of section 5 and non-adoption of section 14, Limitation Act (XI of 1908) cannot support contention that section 14 would not apply to the proceedings under IRO. In another case titled Muhammad Sajid v. Messrs Hussain Spinning Mills, Karachi (1993 PLC 70) it was held that time during which the Tribunal remained closed would be excluded from the time for filing of appeal in view of section 4 of Limitation Act. Although section 4 of the Limitation Act was not applicable. In that case reliance was placed on 1975 SCMR 452.
21. ' There is another ground which constitute sufficient cause for admission of appeal before the Labour Appellate Tribunal by giving two days to the petitioner because the judgment has been announced by the Labour Court without dictating and signing the same in the open Court as is evident from note written on the application by the Clerk. The provisions relating to the dictating the judgment of the Labour Court are mandatory in nature which enjoins upon him firstly to dictate the judgment and sign the same and thereafter announce in the open Court. This failure of the Labour Court also constitutes a sufficient cause in our view. Even as Labour Court has to act as Civil Court and for that purpose relevant provisions of the C.P.C. which are not inconsistent with any provision of special law, can be followed. In a case titled Nisar Ahmad v. Presiding Officer, Punjab Labour Court No,2 Lahore and another (PLD 1976 Lahore 1162) at page 1168 it was observed as under:--- "The ration decindend of the above judgments appears to be that if law requires that the judgment should be in writing, be announced publicly and signed, then an oral order may be merely an intention of the court as to what judgment is going to be, but that certainly is not a valid, operative and a final judgment in the eye of law. That judgment can be altered at any time before it is announced and signed and even fresh proceedings can be started. It, however, could not be applied to a case where the law required a judgment to be in writing and to be announced and signed in public after notice to the parties. Itliof_interest to notice that in the present case, there was not even a short written order on the record but only an oral announcement. None of pre- requisites of a valid judgment as laid down in the CPC were thus fulfilled."
22. ' Again in para 10 of the report it was observed as under:-- "An examination of the above provisions of law and the judgment would go to show that where a law provides for writing, announcing and signing a judgment, all that must be done in that way, in order to give validity to the judgment. All official acts are to be done in writing and more, so in case of judgment and orders of Court and Tribunals, particularly when there are specific provision as to how they are to be written and delivered. There are separate provisions for altering or amending judgment after it has been signed. These provisions make it absolutely clear that after a judgment has been announced and signed, a judge cannot alter or review it except in accordance with law.
23. The Court is then functus officio as the previous proceedings stand concluded. These restrictions, however cannot apply to an oral announcement as it is not in a crystallized form. It is to be written out and it can be changed, amended or modified any number of times before it is actually finalized."
24. ' As stated above even respondent herein, moved an application to the Presiding Officer for copy of the judgment and the clerk reported that judgment is not prepared for delivery. Copy was admittedly issued to both the parties on 15-1-2013. The next day was Sunday a general holiday.
25. Monday was also declared holiday by this court therefore, at least petitioner herein was entitled to two days. Counting these days into his credit the appeal was within time and even otherwise, there was a sufficient cause for admission of the appeal after prescribed period of the limitation in view of the circumstances listed above.
26. ' The upshot of the above discussion is that petition is accepted. The judgment of the learned Labour Appellate Tribunal is vacated and it is held that appeal was filed within limitation. The learned Appellate Tribunal shall now decide the appeal on merits. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.