1. ' As the two appeals captioned above involve common question of fact and law, they are being disposed of together through this single judgment.
2. ' The appellants were treated as temporary workers kept for the season and for the reason that the season had ended were terminated. The appellants were originally employed by CTC and were transferred to respondent on same terms and conditions. By the Cotton Trading Corporation the appellants were employed three years before their termination by the respondent. There is no evidence on the record produced by the respondent that the service period of the appellants was not continuous in the CTC. Since the appellants served with the CTC for more than 9 months they became permanent under Standing Order 1 of the Standing Orders Ordinance, 1969, before they were transferred to the respondent and thus they were not temporary workers. Learned counsel for the respondent has argued that since the respondent factory is seasonal, the appellants were reasonal workers and not permanent. There is no force in the argument. Even in seasonal factories there are permanent employees. In the absence of evidence that the service of the appellants was not continuous with the CTC it will be presumed that they were permanent employees. The reason given in the order of termination that the season had expired, therefore, was not sufficient for the termination of service.
3. ' It has been argued by the learned counsel for the respondent that the Grievance Notice and the Grievance petition were time barred inasmuch as the order of termination Exh.R/1 is dated 29-4- 1978 whereas the Grievance notice was served on 27th of January, 1979 and the Grievance petition was brought thereafter. Firstly the appellants had brought suit for perpetual injunction in the civil Court. In reply to the application for temporary injunction it was contended by the respondent on 18-5-1978 that the appellants had already been terminated. The suit was dismissed on 3-7-1978.
4. On 4-7-1978 application for copy of the order was given and copy was supplied on 17-7-1978.
5. Thereafter, the appellants brought Writ petition which was dismissed in limine on 6-12-1978. There is nothing on the record to show on what date the writ petition was brought. Learned counsel for the respondent has argued that it has been wrongly said on behalf of the appellants that the writ petition was brought on 21st of July, 1978, inasmuch as it could not have remained pending without being admitted. In the absence of any evidence as to on what actual date the writ petition was brought, it cannot be said that it was brought shortly before the date on which it was dismissed in limine. In the month of July the High Court is closed for vacation and during vacation only urgent petitions are heard. High Court reopens in the month of September. Every case is not fixed for hearing by the order of a Judge of High Court but is fixed by the office. The possibility, therefore, cannot be excluded that writ branch 9f the High Court may have fixed the writ petition late, therefore, it could be dismissed in limine on 6-12-1978 and not earlier to that. So, it cannot be said that unnecessarily the appellants had wasted time between 7-7-1978 till bringing the Writ petition.
6. Learned counsel for the respondent has also argued that only section 5 of the Limitation Act has been applicable by section 65-B of the Industrial Relations Ordinance, 1969, therefore, the period spent in the wrong forum cannot be condoned. In the civil suit no order of termination was challenged, but only injunction was sought for restraining the respondent from passing the termination order. Since the termination was not to be passed on account of any misconduct no charge-sheet was given. The appellants, therefore, had no grievance to go to the Labour Court. In these circumstances only the jurisdiction of the civil Court could be invoked, by seeking injunction against respondent. The suit was dismissed because it was contended on behalf of the respondent that the termination had already been made. Since termination order was alleged to have been passed, therefore, there was no occasion to issue any injunction. However, it cannot be said that the civil Court had no jurisdiction to entertain the suit. Learned counsel has also argued that the period spent in a wrong court in a suit or appeal can be condoned but not the period spent in a writ petition as the writ petition is neither a suit nor an appeal. This is true that by section 65(B) only section 5 of the Limitation Act has been made applicable but under the said section the delay can be condoned if cogent grounds are given. Section 14 of the Limitation Act has not been made applicable to Labour cases but in spite of it the delay can be condoned if the Court is convinced that there was sufficient ground for seeking remedy before a wrong forum because the requirement of section 5 is that there should be sufficient cause for not bringing the action in time.
7. The case of the appellant was that under the wrong legal advice they had brought the suit and the writ petition. I have already observed above that so far as the suit brought by the appellants is concerned the appellants were justified in going to the civil Court for getting a stay order. Since they were not informed about the order of termination till then they were justified in seeking perpetual injunction and the Civil Court according to the contention made rightly entertained the suit. If order of termination had been served upon the appellants before they brought the suit of course it could be said that the Civil Court had no jurisdiction as the order of termination can be challenged only in the Labour Court. So far as the writ petition is concerned the same rule applies that if sufficient ground is given grievance petition may be brought beyond the period of limitation and the court can condone the delay under section 5 of the Limitation Act. Since section 14 has not been made applicable by section 65-(B), I.R.O. Arguments of the learned counsel that writ petition is not covered by it, need not be discussed. But there appears to be not much force in the remaining arguments of the learned counsel, because in section 14 it is not mentioned that proceedings should have been brought in a Civil Court of original jurisdiction but rather the section says that if another civil proceedings have been brought whether in a court of first instance or in a court of appeal, the period spent in these proceedings would be excluded. The writ proceedings are nevertheless civil proceedings and High Court is the court of first instance so far as writ is concerned. The appellants being laymen acted upon the advice of their counsel by challenging the order of termination in writ petition. This cannot be said that writ petition was incompetent. The High Court has jurisdiction to see the vires of the termination order but may refuse to exercise its jurisdiction for the reason that another efficacious remedy is available by challenging the order before the Labour Court. The lower court was, therefore, not justified in refusing the time spent by the appellant in the suit and then in the writ petition. I cannot agree with the learned counsel for the respondent that the appellants had no need to get copies of the order of the Civil Court and of the High Court. They had to see for what reason their suit and writ petition were dismissed and without obtaining copies they could not get proper legal advice. Learned counsel for the respondent has made reference to certain irrelevant authorities which are not applicable. In PLD 1971 Quetta 33 it was observed that Commissioner under the Workmen's Compensation not being a court claim for compensation could not be treated as suit under the Limitation Act. High Court is a court, therefore, it cannot be said that writ petition brought to it is not an action brought in a court. Learned counsel has also said that no affidavit of the counsel who is alleged to have given a wrong advice to the appellants was filed alongwith the grievance petition, therefore, there is no justification for the condonation of delay. He has cited 1980 SC MR 332. In the appeal brought to Supreme Court acquittal and enhancement of sentence were prayed to be set aside. It was observed".
8. "In the circumstances of the case we do not want to depart from the practice that in such like cases on the grounds as stated the delay is not condoned by this court."
9. ' I have observed above that writ petition was competent if the High Court was inclined to exercise its jurisdiction and it cannot be said that under wrong advice writ was instituted.
10. ' Learned counsel for the respondent has argued that termination order was sent to Habib-ur- Rehman, appellant by registered post but he refused to receive it. Termination order no doubt was sent by registered post but this is wrong that he had refused to receive it. The report of the postman is that the addressee was not present at his house. Certain dates are given on the envelope and the learned counsel says that on all these occasions/dates, the postman went to the house of Habib-ur-Rehman appellant but he was not found, therefore, it was not found necessary to send the termination order again on the same address. No doubt about 21 dates are given on the envelope but the report of the postman does not show that he had gone to the house of Habib- ur-Rehman on all these dates. If he had mentioned so in his report only then it could be said that Habib-ur-Rehman could not be contacted on twenty one occasions. The report is, "The addressee is not at his residence and has not come to the post office for the delivery of the letter". The date of this report is 27th of May, 1978. Other report which appears to have been made previous to the report already referred is to the effect, "Not met". He has not mentioned that the addressee could not be found on twenty one occasions, or on the dates given below. The dates given could be added afterwards. If the postman had been examined and he had verified that he had put all those dates and that he had been going Ito the residence of Habib-ur-Rehman appellant on all those dates and that he could not be met of course it-could be said that it was not necessary for the respondent to send the order of termination again by post. If per chance Habib-urRehman was not found on 27th of May, 1978, the respondent should have again sent the letter on the same address. The case of the respondent is that before despatching the order of termination by registered post the order was attempted to be delivered to Habib-urRehman but he refused to receive it. The person who made the report was examined. R.W.1 no doubt said that he had delivered the order of termination but only the order of termination bears his signatures and not the report of refusal. So far as Ata Mohammad appellant is concerned the registered letter sent to him does not bear any report, it, therefore, does not stand proved that he refused to receive it. It, therefore, does not stand proved that the order of termination had in reality been served upon the said appellant.
11. ' As a result of the observations made above I accept the appeal and setting aside the impugned orders of termination direct reinstatement of the appellants. Since the appellants had been dragging the respondent in the Civil Court and then in the writ petition and did not come directly to the Labour Court in the circumstances they are not entitled to back benefits.