MIANGUL HASSAN AURANGZEB, J:- Through the instant writ petition the petitioner, Fauji Fertilizer Bin Qasim Limited ("FFBL"), impugns the order dated 10.07.2020 passed by the learned Full Bench, National Industrial Relations Commission ("N.I.R.C."), whereby the petitioner's appeal against the order dated 28.01.2020 passed by the learned Member, N.I.R.C., was dismissed. Vide the said order dated 28.01.2020, learned Member, N.I.R.C. allowed the grievance petition filed by the private respondent against the petitioner's decision not to extend the duration of his service agreement beyond 09.03.2017.
2. Learned counsel for the petitioner submitted that the grievance notice had been issued by the private respondent with a delay of 59 days; that the service agreement expired on 09.03.2017 but the grievance notice was issued on 05.08.2017; that along with his grievance petition, the private respondent also filed an application for condonation of delay; that at no material stage was any order passed by the learned Member, N.I.R.C. condoning the delay in filing of the grievance petition; that unless the delay in filing the grievance petition was condoned, the learned Member, N.I.R.C. could not have gone into the merits of the grievance petition; that the learned Member, and the learned Full Bench, N.I.R.C. concurrently erred by not appreciating that the private respondent's status was that of a contract employee; that under Section 12(1) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, the petitioner could terminate the employment of a permanent workman for any reason other than misconduct with one month's notice or one month's salary in lieu of notice; that since the petitioner had not passed an order for terminating the services of the private respondent, the need for issuing a notice or conducting an inquiry did not arise; that the refusal on the petitioner's part to extend the validity of the service agreement did not in any manner stigmatize the private respondent; that the learned Member, N.I.R.C. erred by deciding a number of grievance petitions through a consolidated order when no order for the consolidation of the grievance petitions had ever been passed; that evidence in each of the petitions had been separately recorded and each case had its own peculiar facts; and that the learned Member, N.I.R.C. only considered the documents exhibited in only one of the grievance petitions while deciding all the petitions. Learned counsel for the petitioner prayed for the writ petition to be allowed in terms of the relief sought therein.
3. On the other hand, learned counsel for the private respondent submitted that the petitioner had not filed a reply to the respondent's application for condonation of delay; that since all the respondents fall in the same category, there was no need for the learned Member, N.I.R.C. and the learned Full Bench, N.I.R.C. to give separate judgments; that in the prayer of the grievance petitions, the private respondents had sought a declaration that the respondents are permanent employees of the petitioner; that on account of having served as workmen for more than 90 days, the respondents had acquired the status of permanent workmen and their services could not have been terminated without adopting the procedure prescribed in Standing Order 12 of the Industrial and Commercial Standing Order Ordinance, 1968; and that the respondents simply want the petitioner to give them treatment to which the permanent employees are entitled under the law.
Learned counsel for the private respondent prayed for the writ petition to be dismissed.
4. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance.
5. The record shows that on 01.12.2009, respondent No.2, Muhammad Waheed Rabbani, was appointed as part of the Special Security Team at the petitioner's head office for a fixed period on contract basis. The duration of respondent No.2's employment was extended from time to time.
Vide letter dated 22.08.2016, the petitioner extended the duration of respondent No.2's employment to 09.03.2017. Respondent No.2's employment contract was not extended beyond the said date.
This caused respondent No.2 to submit a grievance notice on 05.08.2017 to the Managing Director of the petitioner. Having not received response to the said notice, respondent No.2 on 29.08.2017 filed a grievance petition before the N.I.R.C., Islamabad praying for a declaration that he was a permanent employee of the petitioner. Furthermore, a direction was sought for respondent No.2's services to be regularized. Along with the said grievance petition, respondent No.2 filed an application for condonation of delay. The proceedings before the N.I.R.C. culminated in the consolidated judgment dated 28.01.2020 whereby respondent No.2's grievance petition was allowed and the petitioner was directed to reinstate respondent No.2 and treat him as a permanent workman. Furthermore, the petitioner was directed to pay respondent No.2's back benefits if he was not gainfully employed elsewhere during the pendency of the grievance petition.
6. The petitioner's appeal against the order dated 28.01.2020 passed by the learned Member, N.I.R.C. was dismissed by the learned Full Bench, N.I.R.C. vide order dated 10.07.2020. The said concurrent orders have been assailed by the petitioner in the instant writ petition.
7. It is an admitted position that the cause for respondent No.2's grievance accrued on 09.03.2017 when the petitioner did not extend the duration of his employment contract. Admittedly, the grievance notice was submitted by respondent No.2 on 05.08.2017. For the purposes of the clarity, Section 33(1) of the Industrial Relations Act, 2012 ("I.R.A.") is reproduced herein below:- "33. 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 ninety days of the day on which the cause of such grievance arises."
8. The date on which respondent No.2 served his grievance notice to the petitioner was admittedly beyond the period of 90 days prescribed in Section 33(1) of the I.R.A. It can safely be concluded that respondent No.2 did not bring his grievance (i.e. the non-extension of the tenure of his employment contract beyond 09.03.2017) to the notice of the petitioner within a period of 90 days of the date on which the cause for his grievances arose, and therefore the requirements of Section 33(1) of the I.R.A. were not fulfilled by respondent No.2.
9. Assuming that respondent No.2 had served a grievance notice on the petitioner within the time limit prescribed in Section 33(1) of the I.R.A., respondent No.2 could have filed a grievance petition before the N.I.R.C. within a period of 60 days from the expiration of fifteen days from the date when the grievance notice was served on the petitioner. For filing a grievance petition before the N.I.R.C., the proviso to Section 33(4) of the I.R.A. provides a limitation period of sixty days from the date of the communication of the employer's decision or the expiry of fifteen days of the issuance of the grievance notice. A grievance petition before the N.I.R.C., without the service of a grievance notice on the employer within the limitation period provided in Section 33(1) of the I.R.A., is not maintainable. This Court, in the case of Pakistan Telecommunication Company Limited Vs. Muhammad Dilpazeer Abbasi (2016 PLC 367), has held inter-alia as follows:- "A worker/ workman can file a petition for redressal of grievance in the mode or in accordance with the procedure provided in section 33 of the Act. In this behalf a worker/workman is required to bring to the notice of his employer in writing the grievance within 90 days of the cause by which grievance arises and if the employer, under subsection (4) of section 33 fails to make/communicate decision within 15 days of the grievance or the decision rendered is not satisfactory then the matter can be agitated before the Commission. Under proviso to subsection (4) a worker/ workman who desires to take the matter to the Commission shall do so within a period of 60 days from the date of commencement of the employment or as the case may be from expiry of the period mentioned in subsection (2) or subsection (3) as the case may be."
10. In drawing the said conclusion, this Court relied upon the case law titled Khushal Khan Vs. Muslim Commercial Bank Limited (2002 PLC (C.S.) 907, Allied Bank of Pakistan Limited Vs. Muhammad Iqbal Sipra (2007 PLC Labour Cases 398), and Abdul Rauf Vs. Muhammad Shafiq (2006 PLC Labour Cases 135). In the said case, one of the reasons why this Court set-aside the concurrent orders of the learned Member and the learned Full Bench, N.I.R.C. was that there was nothing on the record to establish that the employees (petitioners before the N.I.R.C.) had served a grievance notice on their employer within the time limit prescribed in Section 33(1) of the I.R.A.
11. In the case at hand, respondent No.2 had filed the grievance petition before the N.I.R.C. on 29.08.2017 which is far in excess of the sixty-day time limit prescribed in the proviso to Section 33(4) of the I.R.A. for filing a grievance petition. Respondent No.2's grievance petition was accompanied with an application for condonation of delay. In the said application, it has clearly been pleaded that respondent No.2's employment contract was extended to 09.03.2017. Furthermore, it is pleaded that respondent No.2's employment contract was orally terminated on 09.04.2017. Even if 09.04.2017 is considered as the starting date of the limitation period for serving a grievance notice, the grievance notice dated 05.08.2017, was time barred.
12. Through the said application for condonation of delay, respondent No.2 had sought the condonation of delay in filing the grievance petition and the delay in serving the grievance notice.
Section 85 of the I.R.A. makes the provision of Section 5 of the Limitation Act, 1908 applicable in computing the period within which an application is to be made, or any other thing to be done under the I.R.A. It is well settled that a Court is empowered to condone if the applicant comes up with sufficient cause for not instituting proceedings within the time limit prescribed by law. In respondent No.2's application for condonation of delay, I have prima facie not been able to identify a sufficient cause for the delay in serving the grievance notice or filing a grievance petition to be condoned. For the purposes of clarity, paragraph 2 of the said application is reproduced herein below:- "2. That the petitioner along with 8 others filed a case No.4B(29)/2017 before NIRC for regularization, NIRC granted stay order on 06-03-2017. Contract of the petitioner was extended from time to time till 09-03-2017 and was asked to fill the Performa under third party contractor which he refused, therefore, petitioner has been terminated in violation of order of NIRC, during pendency of his case. Oral termination order is illegal and is void ab-initio. Against oral termination dated 09-04-2017 applicant filed grievance notice dated 05-08-2017. The respondent kept the applicant on hello hopes that he [shall] be given fresh contract."
13. Before a Court or a Tribunal can proceed to decide a time barred petition or application on merits, it is imperative that the application for condonation of delay is decided. Only once the hurdle of limitation is crossed by the petitioner or applicant could a Court or a Tribunal decide the case on merits. There is nothing on the record to show that the learned Member, N.I.R.C. had condoned the delay in filing the grievance petition before proceeding to decide the same on merits. The learned Full Bench, N.I.R.C. also did not notice this crucial element in the case.
14. In the case of Government of Balochistan Vs. Muhammad Naseer (2009 PLC (C.S.) 513), the Hon'ble Supreme Court has held as follows:- "11. Examination of various judgments of this Court as noted above clearly shows that unless the competent authority condones the delay with conscious application of mind, the question of limitation will remain open for consideration of learned Service Tribunal. As held in Ahsan Ali and others v. District Judge and others PLD 1969 SC 167, there is no waiver of the question of limitation, particularly if a question of limitation in filing the appeal or representation before the departmental authority is raised before the learned Service Tribunal, it is bound to examine it and record its decision. The concept of implied condonation of delay does not fit in the scheme of law of limitation because an application has to be made for seeking condonation, showing sufficient cause to the satisfaction of the forum concerned who may either grant the prayer or decline it. It may also be remembered that discretion has to be exercised in a just and legal manner and it cannot be exercised arbitrarily or fancifully. The vice of accepting the implied condonation of delay is that in the absence of the grounds and reasons for condonation of delay, it is not possible for the Court of appeal to examine the question as to whether the delay was rightly condoned.
Thus, in this case, the learned Tribunal in assuming that the delay stood condoned impliedly, was, clearly in error."
15. Additionally, in the case of Mst. Nazia Fazal Vs. Pakistan International Air Lines Corporation through its Managing Director (2020 PLC 233), this Court held as follows:- "12. It is well settled that a Court or a tribunal is bound to notice and consider the question of limitation, irrespective of the fact whether or not it was agitated by the respondent. The question of limitation could not waived, and even if waived could be taken up again by a party waiving it, and even by the Court itself. Law to this effect has been laid down in the judgments reported as 2007 SCMR 621, 2006 SCMR 170, 2003 SCMR 1815, and PLD 1985 SC 153."
16. In view of the above, the instant petition is allowed; the impugned orders dated 28.01.2020 and 10.07.2020 passed by the learned Member and the learned Full Bench, N.I.R.C. are set-aside; and the matter is remanded to the learned Member, N.I.R.C. who shall first decide the question whether the grievance notice had been served by respondent No.2 within the time limit prescribed in Section 33(1) of the I.R.A. and then decide, if need be, whether the delay in filing the grievance petition ought to have been condoned on the basis of the grounds taken in respondent No.2's application for condonation of delay. There shall be no order as to costs.