' SHAHID KARIM, J.--- The facts in this petition are simple and easily resolved, however, they have been rendered complicated by the judgment of the courts below which have merely proceeded on the question of limitation and have dismissed the grievance petition of the petitioner.
2. The relevant facts for our purposes and most of which are not denied by the parties are that the petitioner was recruited as a permanent workman by the respondent-Habib Bank Limited (HBL) on 20-9-1979 and served the Bank for 23 years until 22-7-2003 when an order for his termination was passed. The subject order for the purpose of this petition is reproduced as under:- "In view of your involvement in heinous crime (murder case) and the chances of your acquittal in this matter are bleak the competent authority has decided to terminate your services under rule 15 of the HBL (Staff) Service Rules, 1981 with immediate effect.
' You will be paid three months' substantive pay in lieu of notice as required under the said rule."
3. As is evident from the order of termination reproduced above, the petitioner was involved in a criminal case and was in jail while this order for termination was passed. The petitioner was convicted by the trial court and an appeal was filed with this Court and ultimately on 27-3-2008 the petitioner was acquitted of the charge by this Court and was released on 10-4-2008. The petitioner obtained the copy of the judgment of this court on 6-5-2008. According to the petitioner, he obtained a copy of the order of dismissal on 6-5-2008 and filed a grievance notice through his advocate on 20-5-2008 (first notice). The first grievance notice was not responded to by the HBL and, therefore, the petitioner filed a grievance petition after two and half months on 4-8-2008 but the said petition was not received by the staff of the labour court on the ground that first grievance notice had been invalidly served as it was filed through an advocate whereas it should have been filed by the petitioner personally. The petitioner was, therefore, constrained to send a second grievance notice dated 19-9-2008 (second notice) which, too, was not responded to by HBL, therefore, the petitioner moved grievance petition before the Labour Court No,1, Lahore. The Labour Court No,1, Lahore declined to entertain the petition of the petitioner and vide order dated 9-1-2009 returned the petition to be filed at the competent forum. Under instructions from his lawyer, the petitioner submits that he was compelled to file a Constitutional petition in this Court on 26-1-2009 challenging the order of Labour Court No,1, Lahore but the said petition was dismissed by this Court on 3-3-2009. Finally, the petitioner filed his grievance petition before the Labour Court No,3, Ferozwala on 24-4-2009, which was dismissed on 7-11-2009 being statute barred on account of limitation. The appeal filed by the petitioner before the Punjab Labour Tribunal, Lahore was also dismissed on 9-5-2011. These orders by Labour Court No,3, Ferozwala dated 7-11-2009 and by the Punjab Labour Appellate Tribunal, Lahore dated 9-5-2011 have been impugned in this petition (impugned orders).
4. The above facts are not disputed by the parties and, therefore, the only question that remains to be decided and which was in issue in the instant petition was whether the discretion exercised by the courts below in refusing to condone the delay in the filing of the grievance petition by the petitioner was validly exercised and was in consonance with the principles settled by the superior courts.
5. The learned counsel for the petitioner has premised her arguments on the primary submission that the original order of termination passed by HBL was a void order having been passed by incompetent authority and it is a principle vouched by responsible authority that limitation does not run against a void order. Secondly, the learned 'counsel for the petitioner submits that the period of limitation should have been condoned in favour of the petitioner as the petitioner had acted in good faith and there was no attribution of malice or bad faith to the petitioner. Thirdly, it was the case of the learned counsel that during this period, there was an uncertainty regarding the law to hold the field and the first grievance notice was served under Industrial Relations Ordinance, 2002 (Ordinance, 2002) and in the meantime the Industrial Relations Act, 2008 was promulgated.
Finally, the learned counsel for the petitioner submits that technicalities should not come in the way of the courts and matters relating to the rights of the parties should be decided on merits rather than being thrown out due to technicalities.
6. Conversely, learned counsel for the respondent-HBL stated that first grievance notice was time barred and was incompetently filed. It had to be served within one month of the acquittal as per the provisions of Ordinance, 2002 and, therefore, there was no cause for condonation of delay. He submits that the petitioner was grossly indolent in pursuing his remedies and was not entitled to the concession of section 5 of the Limitation Act, 1908. Finally submits that there was no application of condonation of delay filed by the petitioner and, therefore, the courts below were well within their right to have refused to condone the delay.
7. From the chronology of facts which has been reproduced above, it is evident that the instant case is an unusual one and there were intervening events which ought to have been considered by the courts below in adjudicating the plea for condonation. It is not in every case that we find extraordinary circumstances of the nature that permeate the present petition. It is not denied that the petitioner was involved in a criminal case and was in jail while the order for termination was passed against him. This fact has not been considered to be of much importance by the courts below and both the courts have considered the period of his incarceration as validly taken out of consideration. Therefore, this is not in issue or on which the parties are at loggerheads or that the courts below had any doubt with regard thereto. It was the period after the acquittal of the petitioner that became relevant for the purposes of reckoning the period of limitation for the courts below. It is not denied that the petitioner obtained the copy of the order of his termination on 6-5- 2008 and he filed the first grievance notice, albeit through his advocate, on 20-5-2008. There is nothing in law which would make it mandatory for the grievance notice to be served personally by the petitioner and a notice served through an advocate cannot be deemed as valid grievance notice. Be that as it may, the petitioner considered the notice to have been validly served since the HBL did not respond to the notice and neither did it inform the petitioner that the notice was not valid from a legal perspective and, therefore, he was required to issue a grievance notice personally. Therefore, the petitioner was well within his right to assume that the notice was validly served and, therefore, after two and half months of the said notice, approached the Labour Court by filing a grievance petition which was returned to him and the objection that the first grievance notice was not validly served came to light for the first time. He, therefore, promptly served the second grievance notice on 19-9-2008 and filed the grievance petition before the Labour Court No,1, Lahore on 8-10-2008. The plea that has been put forth for filing the grievance petition at Labour Court No,1, Lahore was that he had enmity in the area of Ferozwala and due to threat to his life chose to file the petition at Labour Court, Lahore and it was precisely for this reason that he approached this Court also with the same prayer to have his petition entertained by labour court, Lahore. These facts and the grounds put forth by the petitioner which seem valid at first blush have not been taken into consideration by the courts below nor have the courts given an opportunity to the petitioner to lead evidence in support of his plea for condonation. Finally the grievance petition was filed at the labour court, Ferozwala on 24-4-2009.
8. From the resume of events, brought forth in the preceding paragraph, it is pretty much evident that the petitioner has not at all been indolent in his approach to the proper forums for the redressal of his grievance. He may have filed petitions at a wrong forum or he may have been misled into applying with a certain forum lacking territorial jurisdiction but the fact remains that during all this period, he was following his remedies with all due diligence and bona fide. If the courts below have taken the time of his incarceration out of consideration, the subsequent period for the purpose of condonation was not of much significance and had the facts and the law applicable thereto, been properly appreciated, the courts in my opinion should have condoned the delay which was not very significant.
9. The courts below have not considered in its proper perspective the tenor of section 78 of the Ordinance, 2002, which is reproduced for facility:-- "Limitation.-- The provisions of section 5 of the Limitation Act, 1908, shall apply in computing the period within which an application is to be made, or any other thing is to be done, under this Ordinance."
10. Under the provision of section 78 of the Ordinance, 2002, which was the law applicable at the relevant time, section 5 of the Limitation Act, 1908 has been made applicable to compute the period within which an application has to be made or any other thing is to be done under the said Ordinance. Under this provision, the courts were empowered to condone the delay not only for grievance petition filed by the petitioner but also the grievance notice served upon the respondent-HBL by the petitioner. This provision fell for determination by the Hon'ble Supreme Court of Pakistan in Tan veer Hussain v. Ravi Ryan Limited through Managing Director and others (2007 SCMR 737) and the relevant part at page 739 is reproduced as under:--- "8. It is an admitted fact that a grievance notice by an employee to the employer, prior to the institution of a grievance petition before the Court, is issued under section 25-A of the IRO. The added phrase, "any other thing is to be done, under this Ordinance", laid down in unambiguous terms that section 65-B of the Ordinance, or for that matter section 5 of the Limitation Act, is applicable to anything or arty other thing required to be done under the Ordinance. The Legislature never uses the words either superfluously or meaninglessly. Each and every word of enactment is, therefore, to be construed strictly in accordance with the ordinary use and meaning thereof. We, therefore, hold that the provisions of section 65-B of the Ordinance are applicable to any application or anything to be done under the Ordinance. The Courts of the Labour hierarchy, therefore, had the jurisdiction to condone the delay in filing the grievance notice, provided always, if sufficient cause within the contemplation of section 5 of the Limitation Act, is available. Such jurisdiction has wrongly been denied to the appellant."
' Reference may also be made to the case Managing Director, Sui Southern Gas Company Limited, Karachi v. Ghulam Abbas and others (2003 PLC (C.S.) 796) wherein the Supreme Court while discussing the ambit of discretionary power of the Tribunal relating to condonation of delay, observed as under:- "Besides above reference, decision of tire cases, on merits have always been encouraged instead of non-suiting the litigants for technical reasons including of limitation. In this behalf good number of precedents can be cited where question of limitation was considered sympathically after taking into consideration the relevant facts. Reliance is placed on the cases of Muhammad Yaqoob v.
Pakistan Petroleum Limited and another 2000 SCMR 830, Messrs Pakistan State Oil Company Limited v. Muhammad Tahir Khan and others PLD 2001 SC 980, Teekam Das M. Haseja, Executive Engineer, WAPDA v. Chairman, WAPDA 2000 SCMR 142. There are cases where even delay has been condoned by the Tribunal without receiving application from the appellant but no interference was made by this Court on the premises that Service Tribunal had passed order in exercise of its discretionary powers. In this behalf reference may be made to the case of WAPDA v. Muhammad Khalid 1991 SCMR 1765. Relevant para therefrom reads as under: "As regards the question that no application for condonation of delay had been filed by the respondent the matter being one of the discretion, the finding of the Tribunal cannot be set aside on a technicality alone."
11. The above observations were followed and relied upon by the Supreme Court in 2008 SCMR 1516.
I would here refer to another judgment of the Hon'ble Supreme Court of Pakistan relating to labour laws and in which it has been held that the labour laws are to be construed liberally and favourably to the interest of the employees. In Forbes Forbes Campbell & Co. Ltd., Karachi and 3 others v, Habibur Rehman and 2 others (1982 SCMR 651), the following observations are apt for our purposes:- "We consider that the provision of Labour laws should be construed liberally and as they have been enacted to benefit workers, they should be construed in a sense favourable to the interests of the employees and not used as a trap. Therefore, we are inclined to agree with the High Court that it was only who had terminated her services, which should, in the circumstances of this case, be regarded as the formal grievance notice envisaged by the relevant law."
12. While the Labour Court No,3 in its order has held the first grievance notice to be an invalid notice no reasons have been given by the labour court for such a finding. The relevant provision of law viz section 46(1) of the Ordinance, 2002 is as follows:--- "46. Redress of individual grievance.--- (I) A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law of any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his Shop Steward or collective bargaining agent, within one month of the day of which cause of such grievance arises."
13. Upon a reading of the said provision, the construction put on the said provision by the courts below is not competent. The provision merely provides that a notice be given to the employer by the worker in writing either himself or through his shop steward or collective bargaining agent. It does not say that a notice served by a workman through any other person will be treated as an invalid notice. It does not bar the worker from serving notice otherwise than through means which have been delineated in the said provision. It is trite principle that everything that is not prohibited is permitted under the law. Therefore, the construction put by the courts below on the provision of section 46(1) are not borne out from a perusal of the said provision nor was any authority cited in support of the said orders. Likewise, the Punjab Labour Appellate Tribunal, Lahore has merely endorsed the order passed by the labour court and has not applied its independent mind to the facts and circumstances of the case. In a nub, the courts below have not taken the controversy raised in this petition in its proper, factual and legal perspective and have also not alluded to unusual and extraordinary circumstances of this case.
14. The superior courts have, in numerous judgments, held that the question of limitation is to be determined by the courts irrespective of the fact whether it is raised before them or not as also that the condonation can be ordered even if there is no application before the court. I would here refer to a judgment of the Hon'ble Supreme Court of Pakistan viz Managing Director, Sui Southern Gas Company Limited, Karachi v. Ghulam Abbas and others (PLD 2003 Supreme Court 724) in another context. The Hon'ble Supreme Court of Pakistan in that judgment was pleased to hold that "decision of the cases on merits have always been encouraged instead of non-suiting the litigants for technical reasons including the limitation."
14. Learned counsel for the respondent-HBL has relied on the judgments of Hon'ble Supreme Court of Pakistan in support of his arguments. In Muhammad Husnain Munir and others v. Sikandar and others (PLD 1974 Supreme Court 139), Zulfikar Khan Awan v. The Secretary, Industries and Mineral Development, Government of the Punjab, Lahore and 8 others (1974 SCMR 530), the issue determined was that this Court in its Constitutional jurisdiction can only interfere if the impugned orders are without jurisdiction and without lawful authority. The learned counsel cited Hakim Muhammad Buta and another v. Habib Ahmad and others (PLD 1985 Supreme Court 153) and Almas Ahmad Fiaz v. Secretary Government of the Punjab Housing and Physical Planning Development, Lahore and another (2006 SCMR 783) for the proposition that the question of limitation is the obligation of the courts to determine irrespective of the fact whether the question has been raised or not. He cited Messrs Nida-e-Millat, Lahore v. Commissioner of Income Tax, Zone- I, Lahore (2008 SCMR 284) to submit that the limitation created a right in the opposite party and a duty is cast upon the person claiming condonation to explain the delay. Further he cited Raja Khan v. Manager (Operation) Faisalabad Electric Supply Company (WAPDA) and others (2011 SCMR 676) which lays down that if the petition is time barred, then merits need not to be discussed.
16. There is no cavil with the propositions, laid down in the judgments cited by the learned counsel for the .Respondent-HBL. However, each case turns on its own facts and since the issue of limitation is a mixed question of law and fact, it is incumbent upon the courts to afford a proper opportunity to the person claiming condonation to explain the delay. Moreover, the courts have, particularly in labour matters, to take a pragmatic and liberal view on the question of limitation and cannot be bogged down or circumscribed by strict rules of technical and legal formalities. The superior courts have always taken a liberal view of such matters in the context of labour laws as the workers and workmen who belong to a class where opportunity of literacy are few and far between and it is not expected of them to be well versed in the intricacies of formal law.
17. In view of the discussion above, this petition is accepted. The impugned orders are set aside. The case is remanded to the Labour Court No,3, Ferozwala for decision on merits.