' This is application under Section 33 of Industrial Relations Act, 2012 filed by the applicant against respondents, United Bank Limited and its two officers.
2. Parties' counsels are. Present. Counsel for the applicant filed objections, copy whereof has been received by other side. Arguments heard.
3. Applicant filed objections against application for hearing legal objections as well as application for amendment of title of petition whereas the perusal of record shows that the matter is not yet admitted and pre admission notice has been issued to the respondents who have filed reply and counter affidavit against stay application as well as application for hearing of preliminary legal objections and in the light of above, the preliminary legal objections are heard today
4. Learned counsel for the respondents contended_ that the petition at the outset is hopelessly time-barred that the applicant whose services were terminated on 28-12-2011 and he filed a petition before this Bench of Commission on 19-06-2014 and second legal objection is that the applicant is not workman and has already availed remedy by filing Civil Suit No. 473/2012 before the Court of 1st Senior Civil Judge, Hyderabad and also third legal objection is that the petition is hit by principle of res judicata.
5. In order to substantiate the above contention the termination letter of the applicant is on record which is dated 28.12.2011 (Annex.A) and the petition filed before this Bench of Commission shows the date of presentation as 19-06-2014 whereas for filing the grievance petition Section 33(1) of the IRA, 2012 provides the period of 90 days to a worker for bringing his grievance to the notice of employer and the employer shall communicate his reply within 15 days and if the employer fails to communicate his decision within the period specified under sub-section(3) or if the worker is dissatisfied with such decision, he may take the matter to Commission within the period of sixty days whereas the petition has been filed after two years and in support of his contention he placed his reliance on 2012 TC (Labour) 293 and 2006 SCM R 783.
6. His another contention regarding non-workman is that the applicant was admittedly District Recovery Manager, OG-II, Annex.R./1 with reply statement which shows that applicant is an officer and also relied upon Employee Declaration Form which has been submitted by him shows that under Functional Title as Auto Collection Manager, therefore he does not fall within the ambit of workman and his petition is not maintainable on this ground.
7. Regarding third objection of res judicata that admittedly the applicant before approaching this Bench of Commission filed Civil Suit No. 473/2012 in the Court of 1st Senior Civil Judge, Hyderabad where his plaint was rejected vide order dated 29-10-2013 and admitted thereafter applicant preferred Appeal No. 194 of 2013 before with additional Sessions Judge, Hyderabad and for reasons not :mentioned he withdrew the same and then filed the present petition, as such for the remedy he filed Civil Suit and thereafter appeal and then coming before this Bench of Commission for same remedy which was rendered on the pleas of "master and servant" and law of contract and no objection of workman/non-workman was raised/pleaded.
8. On the other hand learned counsels for the applicant did not dispute the date of termination letter but his contention is that the applicant was advised to file the civil suit which he filed as mentioned above which was rejected under Order. VII Rule 10, CPC vide order dated 29-10-2013 passed by 1st Senior Civil Judge, Hyderabad in Suit No. 473/2012. Then he preferred appeal No. 194 of 2013 which was subsequently withdraw vide orderdated 24-05-2014 on the ground that appellant (applicant) is going td approach proper forum and his contention is that in view of above for choosing wrong forum whatever time is consumed which may be condoned. In support of his contention he placed his reliance on 2005 PLC 324.
9. Regarding second legal objection that applicant does not fall under the definition of workman, his contention is that it can only be decided after recording of evidence that what was nature of work of the applicant and there are number of decisions on this point that only designation or salary is no sufficient to hold that applicant does not fall within the ambit of workman and it is to be seen the nature of job.
10. Regarding last objection that is res judicata, for which no fault on the part of applicant. He filed case within proper time before the Civil Judge, Hyderabad and then also preferred appeal and subsequently advisec at forum for his remedy is only this Commission and at relevant time this forum was not functioning.
11. I have considered the arguments and have gone through the pleadings and case law cited by both sides.
12. First of all I will take up the objection regarding status of applicant and agree that only nature of job can decide the status of applicant that whether he is workman or not and not only the designation or salary and that requires recording of evidence.
13. Whereas the legal objection of res judicata with due respect of learned counsel for the respondents res judicata cannot apply in the circumstances of present case as res judicata can only come into picture when the subject matter is once determined/ adjudicated by a competent forum and then the same subject matter between the same parties cannot be re-adjudicated, on the principle of res judicata.
14. Regarding the plea of limitation, there is no dispute regarding termination of applicant on 28-12- 2011 and admittedly the petition before this Bench of Commission has been presented on 19.06.2014 i.e. After two years, 5 months and 13 days for which no plausible explanation has been forwarded the applicant side. With due respect of learned counsels for the applicant it is misconception that choosing wrong forum can cover the limitation but on the contrary it is well settled established law that if wrong forum is chosen by the applicants they can sue the counsel and time consumed cannot be condoned the delay of filing of petition and with due respect of learned counsels for the applicant at relevant time this forum was not functioning is totally misconception. The forum was very much available and is functioning since 1973. Moreover the grievance petitions were used to be filed before the Labour Courts but subsequently because of trans-provincial institutions the grievance petition are being filed before this Commission as provide under Section 33 of Industrial Relations Act, 2012.
15. It is well-settled law, that for condonation of delay he has to explain each day's delay and unless this is done delay Should not be condoned. Reliance is placed on 1984 PSC SC (AJ&J) (d) 629, 2002 SCM R 1903, 2003 SCM R 604 and 2004 PLC 155 (Sindh High Court). No relaxation was given in a case where there is only delay of one day and it has been held by the Honourable Supreme Court of Pakistan in case reported in PLD 2008 Supreme Court 462 that: "The appeal having been filed after one day of period of limitation, has created valuable right in favour of respondents. No sufficient cause for filing of delayed appeal; in the present case having been found, Supreme Court declined condonation of delay."
' In the light of above the petition under Section 33 of the IRA, 2012 has no merits as being hopelessly time-barred and same stands dismissed in limine.