ABDUL HAMEED BALOCH, J .---The petitioner has filed the instant constitutional petition with the following prayer: In view of above it is accordingly prayed that order dated 31-08-2020 passed by Labour Appellate Tribunal Balochistan Quetta as well as judgment dated 31.08-2019 passed by learned Presiding Officer Labour Court-I, Balochistan, Quetta may kindly be set aside and grievance petition of the petitioner may kindly be accepted, in the interest of justice."
2. Succinct facts of the instant petition are that the petitioner filed grievance application wtihin the meaning of Section 41 of Balochistan Industrial Relations Act, 2010 (BIRA) against the respondents challenging Order bearing No. CEO (QESCO)/GM (Tech)/Confd 4'313/4818-25 dated 30th August, 2010 and Office Order bearing No. CEO (QESCO)/DOHR and Admn/Confd/4313/1432-38 dated 2nd May, 2011, before Presiding Officer Labour Court-I, Balochistan, Quetta, (trial court), which was contested by the respondents on legal as well as factual grounds. The learned trial Court framed issues on 13th July, 2019 and after hearing the parties the learned trial Court vide judgment dated 31st August, 2019 dismi ssed the grievance application. The petitioner being aggrieved preferred appeal before Labour Appellate Tribunal Balochistan, Quetta, (appellate Court), which was also dismissed vide judgment dated 31st August, 2020, hence the petitioner is before this court.
3. Heard. Perused the record. The record transpires that the petitioner was appointed in WAPDA as Senior Store Keeper on 2nd May, 1991. The QESCO issued show-cause notice bearing No. CEO (QESCO)/GM (Tech)/Confd 4313/835 dated 4th February , 2010. After receiving the reply of show-cause notice the respondent No. 2 vide its Office Order bearing No. CEO (QESCO )/GM (Tech)/Confd 4313/4818-25 dated 30th August, 2010 imposed penalties upon petitioner . The petitioner challenged the same before appellate authority i.e. respondent No.1, who vide Office Order bearing No. CEO (QESCO)/DGHR and Admn/Confd/ 4313/1432-38 dated 2nd May, 2011 enhanced the penalty by dismissing the petitioner from service and maintain ed the penalty of recovery of Rs.28,532,475/-.
4. The record reflects that the petitioner assailed the dismissal order before Federal Service Tribunal, Islamabad which was dismissed on 19th January , 2012. Whereafter , the petitioner approached before Honorable Supreme Court of Pakistan by filing Civil Appeal No. 1028 of 2012, which was withdrawn on 19th January , 2018. Thereafter , the petitioner filed grievance application under Section 41 of Balochistan Indus trial Relations Act, 2010 before Presiding Officer Labour Court-I, Balochistan, Quetta, which was dismissed on 31st August, 2019. The petitioner assailed the judgment of the trial court before Labour Appellate Court Balochistan , Quetta, which was dismissed vide order dated 31st August, 2020 being time barred. It would be appropriate to reproduce Section 41(1) of BIRA, 2010: "41. Redress of individual grievances.---( 1) A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or 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 three months of the day on which the cause of such grievance arises."
5. Admittedly the petitioner has assailed the order of removal from service before the trial Court after lapse of seven years without showing plausible explanation and sufficient cause. Even the petitioner did not seek condonation of delay by way of filing application neither before the trial Court nor before the appellate. The petitioner did not approach the trial Court within the stipulated period as mentioned in Section 41(1) of BIRA, 2010.
6. Section 3 of the Limitation Act is mandatory in nature. Where the suit filed beyond limitation shall be dismissed.
Though the limitation has not been taken in defence. The law does not leave the matter of limitation to the parties.
It imposes the duty upon the court. It is B obligatory upon the court to decide the question of limitation firstly . Where the court comes to the conclusion that the suit/appeal has been filed beyond the period of limitation dismiss the suit/appeal without touching merit. Reliance is placed on the case Muhammad Buta v. Habib Ahmed, PLD 1985 SC 153 , wherein it was held: "4. The words of section 3 of the Limitation Act are mandatory in nature in that every suit instituted after the period of limitation shall, subject to the provision of sections 4 to 25 of that Act, be dismissed although limitation has not been set up as a defence. If from the statement in the plaint the suit appears to be barred by limitation, the plaint shall have to be rejected also under Order VII, Rule 11, C.P.C. The law, therefore, does not leave the matter of limitation to the pleadings of the parties. It imposes a duty in this regard upon the Court itself. There is a chain of authority , and a detailed discussion of the same is not necessary , to lay down that limitation being a matter of statute and the provisions being mandatory , it cannot be waived and even if waive d can be taken up by the party waiving it and by the Courts themselves. In Sitharama v. Krishnaswami (I L R 38 Mad 374), where the defendants had pleaded the bar of limitation but the trial Court had held that they having admitted their liability for the amount in resisting the plaintiff's application in a previous suit, were estopped on general principles of law and equity from pleading that the suit was barred by limitation. It was ruled that the defendants were not estopped and it was observed that "the bar of limitation cannot be waived, and suits and other proceedings must be dismissed if brought after the prescribed period of limitation" and that "the Judge cannot, on equitable grounds, enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognized by it". The same Court in a subsequent case, Ramamurthy v. Gopayya (ILR 40 Mad. 701), reiterated that the parties cannot estop themselves from pleading the provisions of the statute of limitation. The Lahore High Court also took a similar view in Kundo Mal v. Firm Daulat Ram (AIR 1940 Lah. 75), and held that "there is abundant authorit y in support of the proposition that objections regarding limitation cannot be waived and that even if they are waived they can be taken up again by the parties waiving them or by the Courts themselves".
7. It is well settled principle of law that where suit/ appeal has been filed with delay , the party should explain the delay to the satisfaction of the court. The applicant must explain the delay of each day. On failure to explain the party could not succeed. Reliance is placed on the reported judgment of this court titled as Mst. Khair Bibi v.
Ghulam Sarwar , 2021 CLC 151 [Balochistan] . It was observed therein: "Be that as it is, in the instant case, the time was consumed by the appellants in approaching the wrong forum and it is well settled that law is for vigilant and not for indolent and one cannot be benefited on account of his own mistake. For choosing the wrong forum, there is no explanation on the part of appe llants. There is a consistent view of the Hon'ble Supreme Court that, if a litigant had not acted in a bona fide manner or he has acted without due diligence in prosecuting remedies before the wrong forum, he cannot be benefited under Section 14 of the Limitation Act. In a case of Muhammad Ishaq v. Province of the Punjab, (1998 SCMR 9), it was held that "the prosecuting remedies before wrong forum hardly amounted to a bona fide mistake and did not constitute due diligence the essential requirement of section 14 of the Limitation Act."
8. Even approaching wrong forum does not absolve the petitioner to explain the delay . Wrong advice or approaching wrong forum is not sufficient ground for condonation of delay . Reliance is placed on the case Ch. Muhammad Sharif v . Muhammad Ali Khan 1975 SCMR 259 . It was held by their lordship: "The learned Advocate who acted for the petitioner in the Courts below has, in pursuance of the order of this Court dated 2nd December , 1974, now put in an affidavit saying that after enrolment as a pleader , he worked mostly on the Rehabilitation and Settlement side and did very little work in criminal and civil Courts but in the year 170 he switched over to the regular Courts and mainly worked ill criminal Courts. He appeared in very few civil cases of small valuation which were invariably appeal-able to the District Judge. This was the first appeal of high valuation filed by him in the Court of the District Judge under a misconception that since the subject-matter was only a decretal amount in execution proceedings, the District Judge would have jurisdiction.
He was further misled into this belief by the fact that the office of the District Judge did not return the memorandum immediately , as is usually done in subordinate Courts, out the matter was dealt with on, the judicial side as a properly filed appeal. The learned Advoc ate, however on coming to now of his mistake himself applied for the return of the memorandum of appeal.
We have heard the learned counsel at length and carefully examined all the decisi ons referred to by him and have come to the conclusion that this is a clear case in which the learned Advocate showed gross lack of care and his failure in such a case to acquaint himsel f with the relevant provisions of the law relating to the jurisdiction of the Courts amounted to negligence' on his part.
The learned counsel has relied on the decision of the Privy Council in Kunwar Rajendra Bahadur Singh v. Rai Rujeshwar Bati (AIR 1937 FC 276) to support his contention that action taken "in good faith on the advice of counsel honestly given" is a sufficient cause for condoning delay the finding in that case was that the view taken by appellants' counsel was not unreasonable and he could not be doomed to leave been negligent in valuing the appeal. The facts here are altogether different. The correct value was knows.
In the case of Nazar Muhammad v. Mst. Shahzada Begum (PLD 1974 SC 22), this Court also followed the Privy Council but again that was a case in which the wrong period of limitation had been calculated even after reference to a recognized textbook on the law of limitation. There is no evidence here that the learned Advocate concerned consulted any book or law on the point."
In view of above the petition is dismissed in limine.