Asad Ali and 9 others vs The Bank Of Punjab and others

IJAZ UL AHSAN, J.---Through this single judgment, we propose to decide Civil Appeals No.335-L of 2011 to Civil Appeal No.344-L of 2011 as common questions of law and fact are involved in these appeals and they are directed against a consolidated judgment of the Lahore High Court, Lahore dated 01.06.2010.

2. Briefly stated the facts necessary for disposal of this lis are that the Appellants, who were employees of the Respondent Bank were dismissed from service on 17.07.2004. Such dismissal was challenged by them by way of filing grievance petitions before the Labour Court, Lahore. The said petitions were dismissed on 07.01.2005. Against this order of dismissal of grievance petitions, the Appellants preferred appeals before the Lahore High Court, Lahore, under the Industrial Relations Ordinance, 2002. Such appeals were disposed of vide order dated 23.06.2006 and the matters were remanded to the Labour Court, Lahore.

3. In the second round of litigation, the grievance petitions of the Appellants were once again dismissed by the Labour Court vide order dated 24.02.2007. Against the said order, the Appellants once again filed appeals under Section 47 of the Industrial Relations Ordinance, 2002 on 20.04.2007 before the Lahore High Court, Lahore. However, this time some objections were raised on the said appeals by the Judicial Branch (Office) of the High Court the same day. The appeals were returned to the Appellants who were granted three days to remove such objections. They never challenged the objections raised by the office. However, the Appellants consumed six months to remove the objections and re-filed the appeals on 06.10.2007. These appeals were put up for hearing before the Court. The Court issued notices to the Respondent-Bank.

4. During pendency of appeals before the learned High Court, the Industrial Relations Act, 2008 ("IRA, 2008") was promulgated on 15.12.2008. Consequently, in terms of Section 86 of IRA, 2008 the appeals in question were mechanically transferred by the concerned Branch to the Punjab Labour Appellate Tribunal ("the Tribunal") without noticing the fact that they had been filed much after expiry of the period of limitation. The appeals came up for hearing before the Tribunal and were allowed through judgment dated 16.12.2009. The Respondent-Bank was aggrieved of such order and approached the learned High Court in its constitutional jurisdiction. The High Court through the impugned judgment dated 01.06.2010 allowed the constitutional petitions and set aside the judgment of the Tribunal.

5. The appellants were aggrieved of the said judgment of the learned High Court and challenged the same before this Court by way of Civil Petitions for Leave to Appeal. Leave to Appeal was granted by this Court vide order dated 22.06.2011 in the following terms:- "3. We have heard the petitioners who are present in person and perused the available record.

From perusal of the record, it appears that the Punjab Labour Appellate Tribunal duly considered the objection raised by the respondents on the point of limitation and by a well-reasoned order condoned the delay and the matter was remanded to Labour Court to decide the same on merit.

4. Having considered the matter from all angles in the light of material on file, we find that the judgments of the courts below are at variance, therefore, leave to appeal is granted, inter alia, to consider whether the High Court rightly non-suited the petitioners on the ground of limitation, as the same was condoned by the Labour Appellate Tribunal and the matter was remanded to the Labour Court to decide it on merit."

6. The learned counsel for the Appellants submits that the High Court erred in law in ignoring the fact that the Tribunal had duly considered the question of limitation and had condoned the delay by recording valid and legally sustainable reasons. He maintains that the High Court neither had reason nor justification to interfere in exercise of powers by the Tribunal which vested in it. He further maintains that in terms of Sections 86 and 87(2)(b) of IRA, 2008 the High Court Rules and Orders are not applicable to the cases arising out of Labour Laws and as such it had misdirected itself in passing the impugned judgment. He submits that there are various pronouncements of this Court where it has been held that if an appeal is filed within time .but the office raises objections and is returned, it does not become barred by time if it is not filed within the time specified in the memorandum of objections issued by the concerned officers of the High Court. He further submits that the law favours decisions on merits rather than relying on technicalities and the Tribunal has remanded the matter to the trial Court for its decision on merits in accordance with law. Therefore, the Respondent-Bank has no cause or justification to complain against such order.

7. The learned counsel for the Respondent-Bank on the other hand has defended the impugned judgment. He argues that the period of limitation under Section 47 of the repealed IRO, 2002 is 30 days. He submits that the appeals were initially filed within time, however, objections were raised by the office of the High Court and the appeals were duly returned to the Appellants for removal of the objections within three days and re-filing the same. He maintains that admittedly the appeals were re-filed after six months and therefore, at the time of re-filing, such appeals had already become barred by time. He further maintains that applications for condonation of delay under Section 5 of the Limitation Act, filed by the Appellants did not disclose any plausible reason for the delay nor was each day of delay explained which is the requirement of the law. He further submits that there is no denial of the fact that at the time the appeals were filed before the High Court, the jurisdiction to hear such appeals vested in the High Court in terms of Section 47 of IRA, 2008. As such, the High Court Rules and Orders were squarely applicable and in case the objections raised by the office were not removed within the specified time, the period of limitation continued to run and expired on expiry of the period of 30 days provided by the Statute. There is also no denial of the fact that the appeals were re-filed after expiry of period of limitation and as is evident from the applications for condonation of delay, no plausible reason for such delay was offered. He, therefore, maintains that the Tribunal had adopted incorrect reasoning and applied incorrect principles of law to condone the delay and the learned High Court through the impugned judgment had rightly interfered to correct the same. He further maintains the Tribunal had wrongly relied upon Section 36(4) of the Industrial Relations Ordinance, 1969, Section 45(4) of the Industrial Relations Ordinance, 2002 and Section 53(4) of the Industrial Relations Act, 2008 to conclude that no Court fee was payable in respect of matters filed in Labour Courts and therefore, the objections raised by the office of the High Court were of no avail. He points out that in the first place, the appeals were filed before the High Court and had to meet the requirements of the High Court Rules and Orders. Further, the office objections also included various other objections, including an objection that the memo of appeals had not been signed by the learned counsel of the Appellants and the same was not accompanied by his power of attorney. Further; there were 6 other objections to which the Tribunal did not advert to.

8. We have heard the learned counsel for the parties and gone through the record with their assistance. The core issue requiring decision by us is if an appeal is filed within time but the office returns the same by raising some objections and giving a specified time to remove such objections and re-file the same, whether it would become barred by time if the objections are not removed within the time specified by the office and the appeal is not re-filed within the period of limitation. It is an admitted fact that the appeals were filed within time. However, the office of the High Court raised a number of objections and returned the appeals to the Appellants for removing such objections and re-filing the appeals within 3 days. The memo of objections was given on 02.04.2007 and the appeals were admittedly returned. There is no denial of the fact that the appeals were finally re-filed after six months i.e. on 06.10.2007 when the objections were removed.

Unfortunately during that period, the appeals filed by the Appellants had become barred by time.

As per procedure of the High Court such time barred appeals along with applications for condonation of delay were put up before the Court and notices were issued by the Court to the Respondent-Bank. However, during pendency of the appeals, IRA, 2008 was promulgated on 15.12.2008 and in terms of Section 86 thereof the appeals were automatically transferred to the Tribunal which not only proceeded to condone the delay but also decided the appeals on merits by allowing the same and remanding the matter to the trial Court to decide the same afresh on merits.

9. We have gone through the reasoning adopted by the Tribunal in condoning the delay. It held that the objections raised by the office of the High Court were unwarranted and in this context relied on Section 36(4) of the industrial Relations Ordinance, 1969, Section 45(4) of the Industrial Relations Ordinance, 2002 and Section 53(4) of the Industrial Relations Act, 2008 and that no Court fee was payable for filing, exhibiting or recording any documents in any Labour Court. It was further held that none of the objections raised by the office of the High Court had any legal backing under the Labour Laws. With due deference to the reasoning adopted by the Tribunal, we find that at the relevant time when the appeals were filed, the matter fell within the jurisdiction of the High Court and the objections were raised in terms of Rules and Orders of the Lahore High Court. Therefore, the Tribunal neither had the power nor the jurisdiction to determine whether or not the objections raised by the office of the High Court were validly raised and were tenable. The provisions of law cited by the Tribunal were relevant to appeals filed before the Tribunal or the Labour Court and not before the High Court. Further, the Tribunal lost sight of the fact that the appeals became barred by time much before they were transmitted to the Tribunal. As such, the Tribunal lacked jurisdiction either to condone the delay or to revive the appeals which had already become barred by time on account of the fact that the period of limitation provided in law for filing such appeals had expired.

Further, the reasons recorded by the Tribunal for condoning the delay went beyond the mandate of law or the powers that vested in the Tribunal.

10. In addition, a perusal of the applications for condonation of delay filed by Appellants before the High Court which were essentially placed before the Tribunal after transfer of the cases did not disclose any sufficient cause for condonation of delay, let alone explaining every day of delay which is a necessary requirement to seek condonation of delay. It is settled law that limitation is not a mere technicality (or a hyper technicality as it had been termed by the Tribunal). Once limitation expires, a right accrues in favour of the other side by operation of law which cannot lightly be taken away.

11. There is another aspect of the matter. We have specifically asked the learned counsel for the appellants, if the Appellants had filed an appeal against the objections raised by the office of the High Court in case they were of the view that such objections were unjustified. He has candidly conceded that no such appeal was filed and as a matter of fact objections were removed after six months and the appeals were re-filed whereafter the matter was transferred to the Tribunal. This essentially means that the Appellants never questioned the power of the office of High Court to raise objections or challenge the validity of the objections and accepted the same thereby effectively waiving their right to raise any objections regarding validity of the office objections or the power of the office to do so. After such waiver, they could not have argued before the Tribunal that the objections were invalid and therefore the same should be overruled by the Tribunal notwithstanding the fact objections raised by the office of the High Court under the High Court Rules and Orders. We are at a loss to understand the source from which the Tribunal derived the power to sit in judgment over the validity of objections raised by the office of the High Court under the High Court Rules and Orders.

12. The record indicates that the Tribunal allowed the applications for condonation of delay filed by the Appellants. It may be noted that condonation of delay was sought by the Appellants on the following grounds: "2. That admittedly the impugned order was passed on 24.02.2007 and after obtaining its certified copy on 09.03.2007 the appeal was filed on 02.04.2007, which was well within time, but now the office of this honourable court has returned the file of this appeal with an objection to file the instant application, although there is no delay on the part of the petitioner be fixed and heard on merit.

3. That the valuable rights of the petitioner are involved in the matter and it is well settled law laid down by the Apex courts of the country that justice demands that the valuable rights of the parties need to be agitated upon merit rather than dismissing on technical grounds. The delay if any in re-filing the titled appeal is not condoned, the petitioner shall suffer an irreparable loss and injury."

13. We have carefully considered the grounds and examined the reasoning adopted by the Tribunal in allowing the applications for condonation of delay. The reasoning of the Tribunal has no nexus or connection with the grounds taken in the applications for condonation of delay. Further, it is clear and obvious to us from the record that the appeals before the High Court as well as the Tribunal were clearly barred by time and the Tribunal committed patent error in condoning the delay and proceeding to decide the matter on merits and remanding the case to the trial Court for decision afresh. We find ourselves in agreement with the conclusion drawn by the High Court that the grounds for condonation of delay pleaded by the Appellants were neither plausible nor furnished sufficient basis for the same. This is without prejudice and in addition to our view that the order of the Tribunal was without jurisdiction.

14. In the context of controversy before us; namely whether limitation stops running if an appeal is filed within time, even if it is returned for removing objections and re-filing the same, reference may usefully be made to a judgment of this Court reported as Lahore Development Authority v.

Muhammad Rashid (1997 SCMR 1224), where this Court has clearly and categorically held as follows: "Learned counsel appearing in support of this petition has not addressed us on the dismissal of the revision petition on the ground of limitation. On perusal of the impugned judgment, however, we find that dismissal of the revision petition as time-barred is unexceptionable. Revision petition was originally filed in the High Court on 29-12-1994. The Deputy Registrar (Judicial) raised certain objections and returned the revision petition on 4-1-1995 with the direction to remove the objections within seven days. Revision petition was, however, re-filed by the petitioner on 10-10- 1995. Office raised an objection that the revision petition when re-filed had become time-barred by 247 days and the petitioner was, therefore, asked to file an application for condonation of delay and it was then that the petitioner moved an application, under section 5 of the Limitation Act seeking condonation of delay. By that time, the revision petition, as observed by the learned Judge, had become barred by 300 days. Be that as it may, the delay was sought to be condoned on two grounds, viz that due to the change of office, the case file got mixed up in the heap of other files and could not be traced despite best efforts of the officials and the law as to limitation for filing the revision petition was misconstrued by the petitioner as previously no limitation was prescribed therefor. The application was supported by an affidavit of Deputy Director (Legal)/General Attorney of the petitioner. Both the grounds were repelled by the learned Judge holding that the objections raised by the Deputy Registrar of the High Court were not of such a nature as would require recourse to the office of the petitioner and in any case, it was not believable that the file could not be located for about a year. Note was also taken of the fact that no affidavit of the officials who were stated to have made the efforts to locate the file was placed on record nor was it shown as to what action was taken against the officials who failed in the discharge of their duties in locating the file. With respect to the second ground, it has been observed by the learned Judge that ignorance of law is no excuse and in this case, the change in law regarding the limitation for filing a revision petition was known to all the members of legal profession. The circumstances pointed out by the learned Judge quite clearly show that the petitioner's officials acted with gross negligence in re-filing the revision petition. They took almost one year in doing what they were required to do in seven days' and the explanation offered by them for this inordinate delay has not been found to be convincing by the learned Judge and rightly so in our view. It has not been denied that the High Court Rules and Orders empowered the Deputy Registrar to raise the objections and fix the time for removing the same. That being so, revision petition re-filed long after the expiry of the period specified by the office was rightly dismissed as time-barred. Even on merits, the view taken by the two Courts below consequent upon the findings recorded by them on the basis of the admitted documentary evidence was not open to any legitimate exception."

15. The said principle of law has repeatedly been laid down, followed, approved, affirmed and reiterated in a large number of judgments of this Court as well as the High Courts. Starting from the judgment of the Lahore High Court Lahore reported as Ghulam Hussain v. Bahadar (PLD 1954 Lahore 361) till judgment of this Court reported as Lahore Development Authority v. Muhammad Rashid (1997 SCMR 1224), there is consistency in the principle that if objections raised by the office are not removed during the period allowed by the office and g meanwhile the limitation period expires, the petition would become barred by time. There are two subsequent judgments of this Court reported as Mst. Sabiran Bi v. Ahmad Khan (2000 SCMR 847) and Farman Ali v.

Muhammad Ishaq (PLD 2013 SC 392) which are incorrectly understood to have decided that so long as the initial institution is within the limitation period, removal of objections raised by the Office after expiry of the limitation period does not render the petition to be barred by time. The said judgments have been rendered in a different set of facts and circumstances, do not lay down the entire law on the subject and are distinguishable on points of law as well as facts.

16. Be that as it may, since the LDA case (ibid) was decided by three learned Judges, it has to be followed instead of the two subsequent judgments rendered by two learned Judges. In addition to the above, following judgments also hold that if objections raised by the office are not removed within the time specified by the office and in the meanwhile limitation for filing the appeal expires, the appeal would be rendered time-barred: Lahore Development Authority v. Muhammad Rashid (1997 SCMR 1224); Naheed Ahmad v. Asif Riaz (PLD 1996 Lahore 702); Ghulam Hussain v. Bahadar (PLD 1954 Lahore 361); Ellahi Bakhsh and 8 others v. Ahmad Bakhsh and 2 others (1999 YLR 777); Ghulam Dastgir Khan Lak v. Hayat (2000 CLC 781); Muhammad Idrees v. Abdul Rehman (2001 YLR 2294); Mazhar lqbal v. Muhammad (2001 YLR 819); Protein and Fats International (Pvt.) Ltd. v. Capital Assets Leasing Corporation Limited (2005 CLD 857); and Controller Land Acquisition v. Fazal-ur-Rehman (7009 SCMR 767).

17. In cases in which certain objections are raised by the office which rendered the institution of the case in itself invalid or incompetent should be held to be time-barred unless the objections or deficiencies pointed out by the office are, met within the time specified by the office in this regard which in turn should be within the limitation period prescribed by the law. It is trite law that what cannot be done directly can also not be allowed to be done indirectly. If what, is filed within the limitation period cannot be said to be a valid appeal, in the presence of deficiencies/objections pointed out by the office, it should be held to be hit by limitation if the objections/deficiencies are remedied beyond the period of limitation.

18. Under the High Court Rules and Orders, Volume 5, chapter 1, Judicial Business, Part A(a) Rule 1(a)

(iii) and (v), Rule 9(i)(d), (e) and Order XLI Rules 1 and 3, C.P.C. an appeal is to be rejected/returned in case it is not signed by the party or his counsel or is not properly stamped according to law - time is to be specified for removing the objections. Under Rule 9(ii) the order of the Deputy Registrar (judicial) returning the memorandum of appeal may be challenged before the Chief Justice or Judge nominated by the Chief Justice On administrative side whose decision shall be final and shall not be assailed in any other proceeding before the High Court. Even this remedy was not availed by the appellants in the instant matter wherefore the present appellants are estopped from raising any objection with respect to their Labor Appeal being time-barred. Rule 11 is also relevant in this regard. It provides that: "No petition, memorandum of appeal or other document, which ought to bear the stamp under the Court Fees Act, 1870, shall be received in the Court until it is properly stamped".

Rule 13 is especially instructive in this regard with respect to limitation and provides that: "Attention is drawn to the provisions of sections 4 and 28 of the Court Fees Act, and it must be understood in connection with section 5 of the Limitation Act that an improperly stamped document even though received, filed or used in the Court remains invalid, unless it is proved to the satisfaction of the court that it was so filed or used through mistake or inadvertence, and time is extended for making up the deficiency in the Court Fee."

19. Amongst the objections raised in the Labour Appeal in the instant matter were the objections that signature of the Counsel was missing and no Power of Attorney had been filed. Cases reported as Sakhi Muhammad v. Taj Begum (1985 CLC 734);- Ramzan v. Sohrab Khan (PLD 1990 Lahore 314) and Chhita v. Mt. Jaffo. (AIR 1931Allahabad 767) hold that appeal not signed by counsel or not accompanying a duly signed Power of Attorney cannot be considered as an appeal. Cases reported as Divisional Personal Officer, P.R. v. Chairman (1987 CLC 1397); Official Receiver, Aligarh v. Hira Lal (AIR 1935 Allahabad 727) and Sheikh Palat v. Sarwan Sahu (AIR 1920 Patna 581) hold that if the appeal when filed did not bear the signatures of the Counsel and also did not have attached to it a duly signed power of attorney, and these defects were made good after the expiry of the limitation period as a result of objections raised by the office, the appeal would be time- barred.

20. In addition, the objections raised in the instant matter, were the objections that court fee and revenue stamps were deficient. According to Shahna Khan v. Aulia Khan (PLD 1984 Supreme Court 157), if deficiency is pointed out by the office in respect of court fee and time is granted for making good the deficiency but the party fails to make good the deficiency within the time specified by the office, question of limitation might then arise and in terms of Siddique Khan v.

Abdul Shakur Khan (PLD 1984 Supreme Court 289) discretion to extend further time would be refused if the conduct of the appellant is considered to be contumacious and the appeal will be rejected.

21. In a case reported as Ghulam Hussain v. Mukarab Khan (1974 SCMR 364) the appeal to the High Court was deficiently stamped. In the meantime, the appeal was transferred to the Additional District Judge because of change in law. The appellant prayed for extension of time for making up the deficiency in court fee. Such extension in time was refused. Appeal to the High Court was also rejected. This Court held that a valuable right had accrued to the respondent of which he could not be deprived when the petitioners did not show due diligence and care in the prosecution of their appeal.

22. The learned counsel for the Appellants has relied upon Farman Ali v. Muhammad Ishaq (PLD 2013 SC 392). We have gone through the-said judgment and find that it has not been held that even if objections are removed after the period of limitation expires, the petition will not be considered to be time-barred. All that has been held is that in case objections are not removed within the time specified by the office, the case is to be fixed before the High Court and the High Court will consider the question of limitation.

23. In the instant matter, because of the conduct of the appellant, firstly, in failing to remove the objections within the time period fixed by the office, secondly, in failing to seek any extension in time for making good the deficiencies pointed out by the office, thirdly, in continuing to show stubbornness for the next five months by disregarding the objection of the office and finally in removing the objections and re-filing after expiry of the limitation period by six months, a vested right accrued to the respondents to urge the point of limitation and to have the appeal dismissed as being time-barred. The Labour Appellate Tribunal having denied this right to the Respondents and having travelled beyond its jurisdiction and in the process having acted illegally, it was only natural that resort had to be made by the Respondents by filing of a writ petition in the Lahore High Court for redressal of its grievance in this regard.

24. The learned counsel for the Appellants has also referred to Sabiran Bi v. Ahmad Khan (2000 SCMR 847). Perusal of the said judgment shows that it has been held that where defects have not been removed, by the concerned party or his advocate within the time specified by the office, the presiding officer of the court can consider the maintainability of proceedings in view of the provisions of Order VII, Rule 11 or identical provisions available in the Code of Civil Procedure or the law under which the proceedings were instituted. That being so; even in terms of Sabran Bibi's case once a defect is not removed within the time specified by the office the matter has to be decided by the High Court. And this is exactly what was done in the instant matter.

25. While going through Sabran Bi's case, we notice that distinction has been drawn between a situation where after raising of objections by the-office the petitioner does not receive back the file and a situation where the petitioner receives back the file. The cases cited in which the petitioner had received back the file after raising of objections by the office and had not returned the same within the time allocated by the office and which were therefore held to be time-barred, were held to be distinguishable from cases where the file had not been received back. It was held that where the file had not been received back would not be held to be time-barred and such cases should be fixed before the court for appropriate Orders for non-prosecution or any order in terms of Order VII, Rule 11 of the Civil Procedure Code. It is also instructive to note that the LDA judgment which as aforesaid was of three learned Judges of this Court was distinguished on the ground that it pertained to a situation where the file had been taken back by the Counsel, meaning thereby that in the instant case where the file had been taken back, even according to Sabiran Bi ibid, the matter had to be decided in terms of the LDA case ibid, which holds that failure to remove the objections within the time fixed (where the file had been received back) renders the appeal to be time-barred if in the time period between the raising of objections and removal thereof the period of limitation expires.

26. Sections 86 and 87 of the IRA relied upon by the appellants do not rescue the Appellants. As noted in the impugned judgment the said sections merely enable the Tribunal to own up the proceedings instituted in the High Court but the said sections do not validate any incompetently filed or invalid appeals. Due to filing of an incompetent and invalid appeal, a vested right in limitation accrued to the respondent bank which could only have been taken away by express legislation which is not the case here. It is trite law that a vested right can only be taken away through express legislation and certainly not by implication.

27. The learned counsel for the Appellants has not been able to convince us that the judgment of the learned High Court suffers from any legal defect or jurisdictional error or flaw that may persuade us to interfere in the matter.

28. For the aforenoted reasons, we do not find any merit in these appeals. The same are accordingly dismissed.