1. This appeal arises from the decision, dated 3rd May, 1981 passed by the learned Presiding Officer, Labour Court No, 3, Lahore at Ferozewala whereby the grievance petition of the respondent was accepted an he was directed to be re-instated with full back benefits. The reason given for the termination is that his services were no more required. The respondent instead of serving a grievance notice within time and bringing grievance petition, approached the Martial La Authorities 'whereupon some correspondence occurred between the Management and D. M. L. A. The appellant was asked to re-instate the respondent but to no purpose. The respondent gave grievance notice on 25th of July, 1979 and brought the grievance petition on 11th october 1979.
2. ' The only point argued before me by the learned counsel for the appellant is of limitation.
3. According to the appellant the grievance notice was time-barred and no application for condonation of delay was made. The order of termination was passed on 21st of September, 1978.
4. The case of the appellant is that the termination order was attempted to be served upon the respondent through R. W-2 but he refused to receive the same. The order of termination was got published in Pakistan Times also. The respondent made application to the D. M. L. A. On 1st October, 1978, whereupon the D. M. L. A. Inquired from the appellant if the respondent had re-instated or not.
5. It has been argued by the learned counsel for the appellant that the respondent stated in his statement that he had got information of the termination of his service from the D. M. L. A. On 1st October, 1978, therefore, from the said date, the grievance notice was time-barred. I have gone through the statement of the respondent recorded by the learned lower Court as well as the one made by him during the enquiry but I have not been able to find any such statement of the respondent that he had learnt about the termination of his service from the D. M. L. A. On 1st October, 1978. However, the respondent in his statement recorded during the enquiry said that when he met the Managing Director on 21st September, 1978 he informed him that his services had been terminated. The learned counsel for the respondent has on the other hand argued that the statement of R. W-2 is not believable that he had delivered the order of termination of services to the respondent and that the latter had refused to receive the same. He says that the respondent had worked during the day time in the office, therefore, termination order could be served upon him there and there was no necessity of serving the order of termination by R. W-2 upon the respondent at 12 mid-night. R. W-2 stated that at 8-00 p. m. On 20th November, 1978, Mukhtar Peon had brought the letter and the register to him asking him to deliver the letter to the respondent when he came to him, and that at 12 mid-night the respondent came to him and he offered the letter to him but he refused to receive it. R. W-2 was subjected to lengthy cross-examination but it was not enquired from him why the termination letter had not been offered to the respondent during day time on 20th of September, at his working place. Without giving opportunity to explain why letter of termination was not attempted to be delivered during day time, the evidence produced by the appellant could not, about the service of termination letter at mid-night, be ignored. The duty of the respondent was to check the Security Guards to see if they were performing duties or not. Obviously, he was required to make surprise visits at night to check the work of the Security Guards working under him. Since the respondent had to make rounds at night, therefore, the letter of termination was handed over to R. W-2 to be delivered to the respondent when he had come to him at night. There was therefore nothing special nor this is unbelievable that the letter of termination was served upon the respondent at mid-night. After duty hours, the respondent may not be available, therefore, the latter was delivered to him at night. Learned counsel says that the peon who took the order to R. W-2 was not examined to corroborate the statement of R. W-2. The answer is simple, that it was not necessary to examine the peon to burden the file. The learned counsel has also stated that since R. W-3 did not make any report on the letter that the respondent had refused to receive it, no weight should be given to his statement doubt fit.
6. W-2 did not make any report on the letter but this is not sufficient' to ignore his evidence. P. W-2 was not a process server therefore did not know that making of refusal on the letter was necessary.
7. Even if argument of the learned counsel of the respondent is accepted that R. W-2 falsely stated that he had offered the letter to the respondent at night, since the respondent stated before the Enquiry Officer in his statement that when he visited the Managing Director on 21st November, 1978, he had informed him that his services had been terminated, he knew the factum of his termination.
8. The Managing Director is a responsible officer and person in authority, therefore, his information was sufficient for the respondent to believe that in reality his services had been terminated. The period of limitation though started running from 22nd November, 1978 and as the grievance notice is, dated 25th July, 1979, it was hopelessly time-barred The. Period of limitation of giving grievance notice ended on 22nd December, 1978. The respondent instead of giving grievance notice in time and coming to the Labour Court directly moved the Martial Law Authorities hoping that he would be got reinstated through their good offices but he was not justified in adopting that course. The Martial Law Authorities had no jurisdiction to direct the re-instatement of the respondent, therefore, period wasted by the respondent in going to the Martial Law Authorities cannot be condoned.
9. However, the finding of the learned lower Court that the respondent is covered by the definition of 'workman' is correct. No doubt, the duty of the respondent was supervisory but his pay was not more C than Rs, 800, therefore, be does not come in exception (6) of Section 2 (xxviii) of the I.R.O.
10. As a result of the observations made above I accept the appeal and setting aside the order of the learned lower Court dismiss the grievance petition of the respondent for reason that the grievance notice and grievance petition, were time-barred.