' The appeal captioned above is directed against the decision dated 26-6-1988 recorded by the learned Presiding Officer, Punjab Labour Court No, 4, Faisalabad, whereby the grievance petition of the appellant for his reinstatement in service was dismissed on the ground that the petition returned by the National Industrial Relations Commission (NIRC) was not presented to the Labour Court but instead a fresh petition was brought and that the same was time-barred.
2. In the beginning the grievance petition was presented to the N.I.R.C. Since the High Court had decided that not the Labour Courts but N.I.R.C. Had jurisdiction in bank cases. After the Supreme Court gave the finding that the Labour Courts were competent to decide such cases, a notice was issued by the N.I.R.C. To the appellant on 18-11-1987 to consider the point whether the petition could be decided there. The appellant made a prayer for the return of the petition but instead of presenting the said petition to the Labour Court brought a fresh petition. He, however, afterwards filed that petition before the learned lower Court which at the stage of evidence was exhibited as Exh. P-15.
3. It has been argued by the learned counsel for the appellant that since the respondents did not reply to the fresh grievance petition but replied to the petition which after return by the N.I.R.C. Was produced before the learned lower Court, therefore, it cannot be said that the petition returned by the N.I.R.C. Was not produced before the Court. The date on which the petition was exhibited in evidence is 17-3-1988 but since reply to this petition was filed by the respondents on 6-2-1988, it means that prior to the said date the said petition was before the learned lower Court. Under section 14 of the Limitation Act the period spent in the N.I.R.C. Which was not competent to decide the case is to be excluded and then it is to be seen if there was any time left for the appellant to present the returned petition before the learned lower Court in time. The date of grievance notice is 3-2-1987 and its reply Exh. P-49 is dated 9-3-1987. There is no evidence on what date this reply was actually received by the appellant. Within two months of the receipt of reply the grievance petition could be made. The grievance petition was presented to the N.I.R.C. On 14-2-1987 and the order of its return is dated 10-12-1987 Since before the receipt of the reply the grievance petition was brought, it could be brought within two months and fifteen days of the service of grievance notice, which means that the grievance petition could be presented tipto 19-4-1987. Since it was presented on 14-2-1987 it means that two months and four days before the expiry of the period the petition was brought. So two months and four days were still at the disposal of the appellant on the date on which the petition was presented to the N.I.R.C. The date of the order of return is 10-12-1987 and if the period of two months and four days is added to it, the date comes to 15-2-1988 which could be the last day, but since on 6-2-1988 when the reply to the said petition was filed by the respondents the petition returned by the N.I.R.C. Was already before the learned lower Court, it was well within time.
4. Learned counsel for the respondents has argued that section 14 of the Limitation Act is not applicable, because it cannot be said that the appellant acted bona fide in pursuing the case before the N.I.R.C. Upto the last. He says that the Supreme Court ruling came six months before the order of return of the petition, therefore, it can be presumed that everybody including the appellant had come to know of the said case-law. I do not find arty force in the arguments of the learned counsel for the respondents. Admittedly, the appellant was not pally to the cases decided by the Supreme Court, therefore, he cannot be said to have its knowledge. The presumption of knowledge is attached to the notifications published in the official gazette and not to the decisions of the superior Courts reported in journals. Even the N.I.R.C. Had called upon the appellant vide notice Exh.
P-56 dated 18-11-1987 to consider the point whether the case could be heard by it. Since the N.I.R.C.
Which is a judicial forum could not come to know of the Supreme Court ruling before 18-11-1987, how could it be said that the said ruling had come to the knowledge of the appellant soon after it was delivered by the Supreme Court.
5. The other argument of the learned counsel for the respondents is that since section 14 of the Limitation Act has not been adopted by section 65-B of the Industrial Relations Ordinance, 1969 while adopting section 5 of the Limitation Act, the said section is not applicable. This argument also has no force. In section 5 of the Limitation Act it is clearly mentioned that it would apply to special cases if it has been made applicable, whereas there is no such bar contained in section 14 of the Limitation Act. Learned counsel has made reference to section 29 of the Limitation Act, but that too is not helpful to him because its provision is to the contrary. Clause (a) of subsection (2) of section 29 of the Limitation Act reads as under:- "The provisions contained in section 4, sections 9 to 18 and section 22 shall apply only in so far as and to the extent to which they are not expressly excluded by such special or local law."
' It is clear from the provision reproduced above that section 14 of the Limitation Act is not applicable if its applicability has been expressly excluded by any special or local law. Since there is no provision in the Industrial Relations Ordinance, 1969 to the effect that section 14 shall not apply, by virtue of section 29(2)(a) of the Limitation Act, it is applicable.
6. Learned counsel for the respondents has also argued that since the fresh petition was brought which was not competent, the mere production of the petition returned by the N.I.R.C. Was not sufficient. On the face of it the argument has no force. Since within limitation proper application, which after return by the N.I.R.C. Should have been presented before the Labour Court, had coma before the said Court, the mere fact that in the beginning fresh petition was brought was no bar. Of course, if the petition returned by the N.I.R.C. Had either never been produced before the learned lower Court or had been produced after the expiry of the limitation, it could be said that no proper petition was before the learned lower Court.
7. Learned counsel for the respondents made a miscellaneous application after arguments were heard and date for announcement of the orders was fixed, to the effect that the grievance petition was premature having been presented six days before the expiry of 15 days of the seen of notice.
Learned counsel for the parties have been heard on the point. So far dual position is concerned, the contention of the learned counsel for the respondents is correct that the grievance petition was presented to the N.I.R.C. Six days before the expiry of 15 days. Learned counsel for the respondents relies upon PLD 1983 SC 436, which supports his argument that a case presented before the expiry of a period fixed by law is premature and thus is not competent. On the other hand, learned counsel for the appellant has argued that no doubt the petition was premature when it was presented to the N.I.R.C. but since it was returned and was brought in the Labour Court afterwards when period of 15 days had expired, it was not premature. He argues that since the N.I.R.C. Was not competent to hear the case, therefore, all the proceedings made there are to be ignored and thus the mere fact that the grievance petition was premature when it was filed in the N.I.R.C. Is not sufficient for holding that it continued to be premature when it came before the Labour Court. In support of his argument he relies upon number of rulings such as AIR 1950 Pat. 473, AIR 1930 Lah.
394, AIR 1929 Lah. 877, AIR 1928 Born. 421 and AIR 1929 P C 103. A perusal of these rulings shows that they support the argument of the learned counsel for the appellant. Therefore, the mere fact that when the petition was presented to the N.I.R.C. It was premature is not sufficient to say that it continued to be premature when it came before the proper Court i,e, the Labour Court. ##TSE# The petition returned by the N.I.R.C. Was not presented within the remaining six days for which it was premature when it was filed before the N.I.R.C. But rather it was produced before the Labour Court after six days as has been discussed above while dealing with the point of limitation. As mentioned in the earlier paragraphs reply to the petition returned by the N.I.R.C. Was submitted by the respondents and the said reply is not to the fresh petition which the appellant had in the beginning presented to the Labour Court. In the fresh petition paragraph 4 is missing, whereas it appears in the petition returned by the N.I.R.C. And brought by the appellant in the Labour Court. A perusal of the written statement shows that it bears the reply to paragraph 4. This shows that on the date on which the case was adjourned for filing the reply, the said grievance petition was already on the file of the Labour Court and that date is 26-1-1988. Since by that time the remaining period of six days for which the petition brought to the N.I.R.C. Was premature had expired, by no stretch of imagination it can be said that the said petition was premature even when it came before the Labour Court. Learned counsel for the respondents has argued that if it be taken that the proceedings made in the N.I.R.C. Do not exist in the eye of law, then section 14 of the Limitation Act would not apply and only section 5 of the Limitation Act will be applicable. This argument also is devoid of force. The period spent in the Court who had no jurisdiction is to be excluded under section 14 for the same reason that the Court having no jurisdiction whatever proceedings it made would be deemed to be non-existent. Thus section 14 of the Limitation Act applies.
8. The learned lower Court has made passing remarks about the merits of the case but has not discussed the evidence in support of its finding, therefore, that finding cannot be accepted as correct. The learned counsel for the respondents has requested that if the case is to be remanded, it should be sent to some other Labour Court since Labour Court No, 4 has already expressed its opinion about the merits of the case and by the said expression the respondents stand prejudiced.
The request appears to be proper and has not been opposed by the learned counsel for the appellant.
9. As a result, the appeal is accepted and setting aside the impugned decision of the learned lower Court and treating that a proper grievance petition was before the learned lower Court and that it was within time, the learned lower Court is directed to decide the remaining points in controversy between the parties including the merits of the case. The case is transferred to the file of the learned Punjab Labour Court No, 5, Sargodha.