MUHAMMAD AAMIR NAWAZ RANA, J.---The petitioner has called in question the order dated 12.04.2021 passed by Single Member, National Industrial Relations Commission at Quetta (hereinafter referred to as "NIRC") whereby the Grievance Petition of respondent No.4. was allowed, and also challenged the order dated 30.12.2021 passed by Full Bench of NIRC, in which the order passed by Single Member of NIRC was upheld.
2. Laconically, the relevant facts for consideration are; the respondent No.4, who was initially appointed as Joint Plant Operator, subsequently promoted as Assistant Plant Operator, and was performing his duties as Plant Shift Operator, was served with Charge Sheet by the petitioner company that he, being member of the Hiring Committee, had misguided the committee and awarded a contract for hiring Caravans to a company which was in fact owned by his father. It was further alleged that he had signed various documents on behalf of his father which, according to petitioner, amounted to forgery and cheating; it was also alleged that he had issued two vouchers in the name of company of his father and had committed misconduct. The inquiry was initiated against the respondent No.4, and he was awarded punishment of reduction to lower scale. Apart from that respondent No.4 was directed to pay Rs.3,965,000/- vide order dated 28.02.2018 passed by Senior Human Resource Officer, of Human Resource Department of petitioner. The respondent No.4 had challenged the said order initially by issuing grievance notice and, thereafter, by filing petition under Sections 31, 33 read with section 54(E) of Industrial Relations Act, 2012 (hereinafter referred to as "IRA, 2012") before the National Industrial Relations Commission, Quetta Bench, Quetta. The petition was allowed vide order dated 12.04.2021. The relevant excerpt of the said order is reproduced: "18. In view of what has been discussed above, I, therefore, allow the petition as prayed for, declare the impugned Charge Sheet No. HRS(C)/CHRO/201 7/916 dated 12-05-2017, Show-Cause Notice No. HRS (C)/CHRO/201 7/1 721 dated 20-10-2017 issued by Chief HR Officer/Authorized Officer, OGDCL (Human Resource Department), Head Office, Islamabad, Inquiry report dated 18-10-2017 by Sr. HR.
Officer (C)/ Inquiry Officer, OGDCL (Human Resource Department) Head Office, Islamabad, Inquiry Proceedings! findings No. HRS (C)/CHRO/201 7 dated 14-12-2017 Chief HR Officer/ Authorized Officer, OGDCL (Human Resource Department) Head Office, Islamabad and Office Memorandum No. APO 410- 1 79/E-214479 dated 28-02-2017/ made by Senior HR Officer (C) OGDCL (Human Resource Department) H.R Section (C), H.O Islamabad whereby major penalty was imposed upon the petitioner and consequent relieving order of the petitioner from Uch Gas Filed dated 01-03-2018 issued by Field Manager, Uch Gas Filed are set aside. Consequently, the respondents are directed to release/ make payments of all the withheld benefits, salaries etc to the petitioner as well as other facilities for which he was legally entitled for including his outstanding days off/ leaves.
Furthermore, the respondents are warned to be careful in future and not to indulge themselves in such affairs of unfair labour practices. Petition is disposed of in the above terms."
3. The petitioner had filed appeal under section 58 (2) of the IRA, 2012 before Full Bench of NIRC at Karachi which was dismissed vide order dated 30.12.2021 as mentioned above.
4. The petitioner being aggrieved from the order dated 30.12.2021, approached the High Court of Sindh at Karachi by filling Constitution Petition No. D-1057/2022, but the same was also dismissed vide order dated 20.10.2022 being not maintainable due to lack of jurisdiction. Hence this petition.
5. Learned counsel for the petitioner mainly contended that since the respondent No.4 does not qualify the definition provided in IRA 2012 of worker, therefore the Member NIRC as well as Full Bench of NIRC had no jurisdiction to entertain the petition so filed by the respondent No.4; further contended that the Full Bench of National Industrial Relations Commission has also committed illegality by ignoring this aspect. According to learned counsel even on merits the charges against the respondent had been proved through disciplinary proceedings, therefore the Member NIRC had wrongly decided the matter in favour of respondent No.4 by allowing his petition.
6. While controverting the contention of learned counsel for petitioner, Mr. Aulfqar Ali Malik Advocate appearing for the respondent No.4 submitted that respondent No.4 had been victimized by the petitioner's company since the respondent No.4 was taking active part in the Workers Trade Union and was Joint Secretary of All Pakistan OGDCL Mazdoor Ittihad Union (CBA). According to learned counsel false allegations were levelled and without adopting due course of law, defective inquiry was conducted by petitioner company against the respondent No.4. Even during inquiry nothing against the petitioner has come on record. The signatures of petitioner alleged on certain documents were not sent for any forensic analysis. While concluding his arguments learned counsel referred number of documents from record which included Ex-P/16-A, Ex-P/17-A, Ex-P/18-A and Ex-P/19-A to Ex-P/19-A(VII); in order to prove that respondent No.4 squarely falls within the definition of `worker' as provided in IRA, 2012.
Arguments Heard. Record perused.
7. It may be observed that the impugned order was passed on 30.12.2021, whereas the instant petition has been filed on 03.01.2022 after delay of about one year. Though the laches per se is not bar to the constitutional jurisdiction but nevertheless it is also settled proposition that the delay defeats equities or equity aids the vigilant and not the indolent. The question of delay by filing constitutional petition cannot lightly be ignored unless until a satisfactory explanation has not been given by the petitioner. In this regard reliance is being placed on the case of Muhammad Tahir-ul-Qadri v. Federation of Pakistan[1], whereby it has been observed that: "22. It is now a settled position in our system of administration of justice that relief is not to be denied to the litigants on technical consideration. However, in peculiar circumstances where the Courts, owing a duty to preserve and protect the Constitution, consider that on the one hand, the object of a case and the relief sought from the Court as under Article 184(3) by one person alone as against public at large. The question of maintainability of proceedings would arise that of suffering from an infirmity/hurdle to effect the result of such proceedings and cannot be left unnoticed by the Court. A constitutional bar of limitation is not applicable to the proceedings under Article 199 or Article 184 of the Constitution, however, insistence is placed on initiating proceedings promptly and within a reasonable time to avoid the question of laches.
23. The doctrine of laches has been discussed in detail by this Court in the case of State Bank of Pakistan v. Imtiaz Ali Khan [2012 PLC (C.S.) 218]. Relevant portion from the judgment is reproduced here:-- "30....Laches is a doctrine whereunder a party which may have a right, which was otherwise enforceable, loses such right to the extent of its enforcement if it is found by the Court of a law that its case is hit by the doctrine of laches/limitation. Right remains with the party but it cannot enforce it. The limitation is examined by the Limitation Act or by special laws which have inbuilt provisions for seeking relief against any grievance within the time specified under the law and if party aggrieved do not approach the appropriate forum within the stipulated period/time, the grievance though remains but it cannot be redressed because if on one hard there was a right with a party which he could have enforced against the other but because of principle of limitation/laches, same right then vests/accrues in favour of the opposite party.
It is settled principle of our jurisprudence as well that delay defeats equity and that equity aids the vigilant and not the indolent. In the case of Jawad Mir Muhammadi v. Haroon Mirza (PLD 2007 SC 472), a full Bench of this Court has held that lathes per se is not a bar to the constitutional jurisdiction and question of delay in filing would have to be examined with reference to the facts of each case; question of delay/lathes in filing constitutional petition has to be given serious consideration and unless a satisfactory and plausible explanation is forthcoming for delay in filing, constitutional petition, the same cannot be overlooked or ignored subject to facts and circumstances of each case.
In this very case reference has also been made to words of Lord Camden L. C. from the judgment of Smith v. Clay (1767) 3 Bro. C.C. 639n at 640n wherein it has been observed that "a Court of equity has always refused its aid to stale demands, where a party has slept upon his right and acquiesced for a great length of time; nothing can call forth this Court into activity, but conscience, good faith, and reasonable diligence, where these are wanting the Court is passive, and does nothing". Cited judgment also refers to a book titled Snell 's Equity by John Meghee 13th Edition, wherein at page 35 it has been observed that "the doctrine of laches in Courts of equity is not an arbitrary or a technical doctrine; where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted in either of these lapse of time and delay are most material".
In Member (S&R)/Chief Settlement Commissioner v. Ashfaque Ali (PLD 2003 SC 132), this Court has held that "writ jurisdiction is undoubtedly discretionary and extraordinary which may not be invoked by a party who demonstrates a style of slackness and laxity on his part: law is well-settled that a party guilty of gross negligence and laches is not entitled to the equitable relief. "
In S.A. Jameel v. Secretary to the Govt. of the Punjab (2005 SCMR 126), this Court while addressing the question of laches has observed that "there is marked distinction between delay in filing of a legal proceedings within the period specified under the provisions of Limitation Act, 1908 and undue time consumed by a party in filing of Constitutional petition, for which no statutory period is prescribed under the law; in the former case. delay of each day is to be explained by furnishing sufficient cause for enlargement of time and condonation of delay within the contemplation of section 5 of the Limitation Act whereas in the later case lapse of time or the question of lathes has to be examined on equitable principles for the reason that the exercise of Constitutional jurisdiction is always discretionary with the Court and the relief so granted is always in the nature of equitable relief in case if the Court finds that the party invoking writ jurisdiction of the High Court is guilty of contumacious lethargy, inaction, laxity or gross negligence in the prosecution or a cause for enforcement of a right, the Court would be justified in non-suiting such person on the premise of laches" (emphasis provided). Hon'ble Mr. Justice Rana Bhagwandas (as he then was), also relied upon the following para of Pakistan Post Office v. Settlement Commissioner (1987 SCMR 1119):-- "There is absolutely no justification to equate laches with statutory bar of limitation. While the former operates as a bar in equity, the latter operates as a legal bar to the grant of remedy. Thus, in the former, all the dictates of justice and equity and balance of legitimate rights are to be weighed, in the latter, subject to statutory relaxations in this behalf nothing is left to the discretion of the Court. It is a harsh law. Thus, passage of time per se brings the statute of limitation in operation, but the bar of laches does not deny the grant of right or slice the remedy unless the grant of relief in addition to being delayed, must also perpetuate injustice to another party. It is also in this very context that the condonation of delay under section 5 of the Limitation Act will be on different harder considerations than those in a case of laches. For, example, while it is essential to explain and condone the delay of each day vis-a-vis statutory limitation, there is no such strict requirement in cases of laches."
The doctrine of laches was also under discussion and dealt with by Privy Council in the judgment reported as John Objobo Agbeyegbe, v. Festus Makene Ikomi (PLD 1953 PC 19) where the Lord Oaksey quoted the following para from Erlanger v. New Sombrero Phosphate Company (1878 LR 3 AC at page 1279):-- "In Lindsay Petroleum Company v. Hurd (LR S PC 239) it is said: 'The doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where, by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases lapse of time and delay are most material. But in every case if an argument against relief, which otherwise not amounting to a bar in any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy."
In the instant case doctrine of laches will have double force against the respondent-employees because in the first instance they could not prove or show the infringement of any right as held by us in the T preceding paras hereinabove and secondly because they are guilty of laches in approaching the legal forum in for redressal of their grievance, if at all they had a legal and genuine grievance."
In the case of Muhammad Azhar Siddiqui v. Federation of Pakistan (PLD 2012 SC 774), this Court has held that the Supreme Court retains the discretion to deny petitioners who approach the Court after undue delay or with unclean hands and the question as to whether a particular case involves the element of public importance is to be determined by the Court with reference to the facts and circumstances of each case. In the case of Dr. Akhtar Hussain Khan v. Federation of Pakistan (2012 SCMR 455) this Court after relying upon the judgment of the Indian Supreme Court in the case of Air India Ltd. v. Cochin International Airport Ltd. [(2002) 2 SCC 617] has held that in the event 'of some irregularity in the decision making process, the Court must exercise its discretionary power of judicial review with circumspection and only in furtherance of public interest and not merely for making out a legal point. It should always keep the larger public interest in mind to interfere or not to interfere."
8. The petitioner though alleged that he had filed Constitution Petition against the order of the Full Bench NIRC Karachi before the Sindh High Court, but subsequently on the basis of objection of territorial jurisdiction the Sindh High Court at Karachi had dismissed the petition for want of territorial jurisdiction. According to learned counsel since the petitioner had been pursuing the remedy, therefore the instant petition does not suffer from laches.
Wrong advice or approaching wrong forum is not sufficient ground for condonation of delay. This has been a consistent view of the Hon'ble Supreme Court that if a litigant has not acted in a bona fide manner or he has acted without due diligence in prosecuting remedies before a wrong forum, he cannot be benefited under Section 14 of the Limitation Act. In a case reported as Muhammad Ishaq v. Province of the Punjab[2], it was held that "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. Similarly, in the case reported as Abdul Ghani v.
Ghulam. Sarwar[3], it was held that "defence given by a lawyer that remedy in a wrong Court was prosecuted, is not a good ground for exclusion of time for limitation either under section 5 or section 14 of the Limitation Act." In the case of Chaudhry Muhammad Sharif v. Muhammad Ali Khan and others[4], it was held by the Apex Court 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 himself with the relevant provisions of the law relating to the jurisdiction of the Courts amounted to negligence' on his part".
9. The petitioner's objection that since respondent No.4 does not qualify the definition provided for 'Worker' in IRA, 2012, therefore the fora-below had no jurisdiction to entertain the grievance petition of the petitioner; we have considered this objection but in view of documents produced by the respondent No.4 i.e. Ex-P/16-A, Ex-P/17-A, Ex-P/18-A and Ex-P/19-A to Ex-P/19-A(VII), we did not find any substance in this objection. The said documents manifest that petitioner being worker is taking active part in the union activity and in this regard the petitioner had remained General Secretary of All Pakistan OGDCL Mazdoor Ittihad Union (CBA), so this objection with regard to jurisdiction of fora- below is turned down.
10. Even on merits the petitioner could not make out any case. For our satisfaction we have perused the relevant record. It is admitted fact that respondent No. 4 was not member of the Hiring Committee as no proof in this regard has been produced by the petitioner company during inquiry, rather Muhammad Azhar, Farukh Muhammad and Taj Muhammad are mentioned as the members of the Hiring Committee. So, if respondent No. 4 was not even member of the Hiring Committee then how he has influenced the members of Hiring Committee? And in case the allegations leveled against respondent No.4 have some substance then why no proceedings were initiated against the notified member of the Hiring Committee. Considering the fact that all these aspects have thoroughly been examined by the fora-below and despite complete appraisal of the relevant record we could not find any' infirmity in the reasoning rendered by the Member of NIRC and to that mater of Full Bench of NIRC.
For the forgoing reasons, the petition being devoid of merits is dismissed.
2. 1998 SCMR 9
3. PLD 1977 SC 102