DECISION ' This is an appeal directed against the impugned order of the Labour Court, dated 7th November, 1983, whereby he had dismissed the grievance petition of the appellant filed by him under section 25-A, I. R.
0., 1969.
2. The facts are that the appellant was an "Assembler" with the National Motors Limited, since 1974.
He was also the Publicity Secretary of the Collective Bargaining Agent at the time when he was arrested on 19th March, 1981 and detained under Martial Law Order 82 of 1978. He was not intimated of any charge or the allegation. On 24th March, 1981, the appellant was issued a charge-sheet for absence from duty from 19th March, 1981, without any intimation regarding the cause of absence and he was informed that if he does not resume his duties or send a proper medical certificate in case of his illness, disciplinary action will be taken against him. This charge-sheet was received by the appellant's wife on 31st March, 1981. Reply to this charge-sheet was sent to the respondents by the wife of the appellant, which is Annexure 'A' to the reply statement of the respondents. The respondents wrote to the appellant that if he failed to resume his duties on 17th June, 1981, his services would stand terminated. But the detention was extended for 3 months more and the appellant informed the respondents accordingly. But the respondents, vide their letter, dated 20th July. 1981, wrote to the appellant that his services have been terminated with effect from 17th June, 1981. The appellant was released on 7th June, 1982. After his release, he submitted a notice of grievance, Annexure `E'. The respondents replied on 24th June, 1982, Annexure 'F' that his grievance notice was rejected. Therefore, the appellant filed the grievance petition before the Labour Court on 19th August, 1982, within two months of the submission of the grievance notice by the appellant.
3. The respondents' case was that the grievance petition was hopelessly time-barred and application, which was made by him to the Labour Court for condoing the delay was rejected.
4. I have heard the learned counsel Mr. Ali Amjad for the appellant and Mr. S. Qamaruddin Hassan on behalf of the respondents.
5. The Labour Court dismissed the grievance petition on the point of limitation only and I have also heard the arguments of the learned Advocates on this point. The evidence furnished by the parties in the Labour Court is before me. Appellant filed an affidavit in his evidence and he was cross- examined. On behalf of the respondents, an affidavit of Mr: Herold A. Meik was filed who was also cross-examined. I proceed to discuss the merits in the light of the arguments advanced by the learned counsel on this behalf not only on the point of limitation, but on the merits of the case entire. The appellant filed an application under section 65-B, I. R.
0., 1969, praying for condonation of delay in submitting the grievance notice on the grounds revealed in the affidavit. The appellant in his affidavit has stated that he did not receive in Jail the letter of termination, dated 17th June, 1981, written by the respondents. He has further made his submission in the affidavit that he was taken to the Interrogation Cell by the authorities and during this Interrogation and afterwards he was not in a position to take up the matter with the respondents or to make any application. He further stated that on his release on 7th June, 1982, be was under treatment of Dr. Rana for re-active depression. The circumstance in the ease of the appellant is a peculiar one. He was detained for 90 days in the first instance and for 90 days in the second instance and went into interrogation of the authorities for his political activities and although nothing came out and he was ultimately released. During this period, one can imagine and visualize that the detainee would have suffered immense mental depression. The mental ailment due to the solitude and interrogation had created depression. He was sent to hospital. His affidavit may be considered due to the admitted facts that he was a detainee and was not free person to answer the proceedings or the charge-sheet sent to him by the respondents. He could not have answered those charge-sheet. His detention was very unfortunate but he was prevented by those circumstances which were not under his control. This fact may be taken into account. The application under section 65-B was opposed by the respondents on the ground that there was no satisfactory proof by the appellant of his alleged ailment and no medical certificate has been produced and also his grievance notice to the respondents was not in time. One can even otherwise concede that mentally the appellant was aggrieved due to the long detention and apart from that he had produced the Medical Certificate from Asghar General Hospital, which is on the panel of the respondents. Medical Certificate produced by the appellant is not doubted. The medical certificate as produced on record shows that he was suffering from reactive depression.
The re-active depression is as bad as it would be aggravated form of acute depression and as such the condonation should have been granted by the Labour Court, the delay in filing of the notice on 13th June, 1982. There was a delay of few days for which he has got the relevant Medical Certificate. The provisions of section 5 of the Limitation Act has been applicable in computing the period within which an application is to be made, or any other thing is to be done, under this Ordinance (I. R.
0., 1969). The submissions made by the learned counsel are that the words nothing to be done has been purposely used by the Legislature precisely in order to cover a situations like the present one in respect of the submission of the grievance notice. Any other view of the matter will reduce the words to a mere redundancy which could not be attributed to any Legislarure.
6. I may resume the above arguments of the learned counsel, namely, that the long detention in Jail 5/6 months he was suffering from re-active depression to give a grievance notice. These two periods could legally be condoned and are accordingly condoned. He submitted the grievance petition after two months from rejection of the same by the respondents. Therefore, the grievance petition was within time.
7. The arguments of the learned counsel for the respondents are not tenable inasmuch as he could not file the grievance notice on termination of his service during his detention. He could not have done so and the arguments are fallacious.
8. Now 1 come on merits of the case. The affidavit of the relevant parties are on record and the arguments of the learned counsel are heard by me also. Standing Order 12(3) provides as under :- '... In case a workman is aggrieved by the termination of his services or removal, retrenchment, discharge, or dismissal, he may take action in accordance with the provisions of section 25-A of the Industrial Relations Ordinance, 1969 and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance."
' In determining the grievance this Tribunal has very wide powers as is clear from the wording of subsection (5) of section 25-A, I. R.
0., 1969, which is in the following words :- "In adjudicating and determinating a grievance under subsection (4) the Labour Court shall go into all the facts of the case, and pass such orders as may be just and proper in the circumstances of the case."
' It is, therefore, submitted by the learned counsel for the appellant that the criteria in the decision/determination of the individual grievance is the propriety and justice in a particular case which gives a wide judicial discretion to this Tribunal.
9. The appellant has taken a plea that he was an Assembler in the National Motors and no other Assembler has been appointed in his place by the respondents. The witness of the respondents, Mr. Herold A. Meik in his cross-examination has stated that some one within the Plant has been appointed against the post of the appellant. However, when he was pressed further he took the position that Mr. Hashmi, the Factory Manager must be knowing the name of the person appointed against the post of the appellant. He has admitted in his cross-examination that- "EVen after the replacement there could still be a vacancy of Assembleler in Production Department,"
It appears that there is a vacancy or a surplus vacancy with the respondents. From the evidence it appears that a long-standing practice in the respondent establishment was to grant special leave of absence without pay to under-trial prisoners. Such leave of absence to employees who are under trial is also not entirely unknown in the history of the sub-continent as is well known the Government employees are suspended on half pay for the period they are under-trial prisoners or till their cases are decided by the competent Court of Law. Such a long-standing practice as has been established to have existed almost unbroken gives rise to a vested right which becomes embedded in the terms and conditions of service of the appellant and other workmen of the respondents. As held in AIR 1966 (?) 282 : "The service of the respondent workman could not have been terminated without holding a proper enquiry. The circumstance that he happened to be detained has no justification for not following the relevant statutory provision and not following a principle of natural justice."
' It was submitted in the arguments of Mr. Ali Amjad for the appellant that where a person is detained under the Martial Law against which he cannot make any representation or seek any remedy whatsoever, it will be a complete travesty of justice to deprive him first of his liberty and then on that ground to deprive him also of his livelihood. The arguments were further enforced by submitting that this is such a violation of natural justice which should not be countenanced by any Court of Law.
10. The respondents have failed to show or prove that the vacancy was filled up.
11. In the result, I accept the appeal and set aside the order of the Labour Court and also decide the appeal on merits. The appellant be reinstated forthwith with full back benefits.