DECISION This is an appeal against the order passed by the learned Presiding Officer, Sind Labour Court No, I, Karachi, on 3-10-1988, whereby he dismissed the grievance petition under section 25-A of I.R.O., 1969, which was filed by the appellant.
2. The brief facts of the case are, that the appellant was working as Gangman with respondent K.P.T. when his services were terminated on 14-111983 on the ground that a charge of theft had been proved against him in the domestic enquiry. The appellant filed an appeal against the order of dismissal on 2-12-1983. He filed second appeal on 8-4-1984. He received the reply to the appeal on 9-7-1986 whereafter on 28-7-1986 he served grievance notice against the respondent and filed grievance petition on 1-9-1986. The respondent resisted the grievance application on the ground that grievance notice was time-barred and that the appellant was rightly removed after charge of theft was proved against him in the domestic enquiry.
3. I have heard Mr. M.M. Jeelani,'counsel for the appellant and Mr. Abdul Rehman, Advocate for the respondent K.P.T.
4. The learned Labour Court dismissed the grievance petition of the appellant mainly on the ground of limitation. The order of termination is admittedly dated 14-11-1983 and grievance notice is dated 28-7-1986. The grievance notice is obviously time-barred unless it is shown, that the intervening period was consumed by the appellant in seeking the remedy allowed to him under the law.
5. Mr. M.M. Jeelani had contended that the appellant had two rights of appeal while according to Mr. Abdul Rehman there is only one right of appeal. The relevant provision with regard to right of appeal is contained in subsection (2) of section 23 of the Karachi Port Trust Act, 1886. It provides:-- "(2) In the case of an order passed by a Head of Department or other Officer in exercise of the power delegated to him under subsection (1) an appeal shall lie to the Chairman and in case of any other order under that subsection to the Federal Government and the orders of the Chairman or Federal Government, as the case may be, in such appeal shall be final."
The plain reading of this provision would clearly show, that there is only one right of appeal but two authorities have been made competent to hear appeals in cases orders are passed by specified subordinate Officers and in case of any other order. In the instant case admittedly, the order of termination of service of the appellant was passed by K.P.T. Board and as such admittedly the appeal would lie to the Government. It appears, that the appellant had mistakenly filed the appeal in the first instance before the Chairman, K.P.T. but he was advised vide letter Ex. A.W. 1/7, dated 27- 3-1984' to file appeal with Government of Pakistan. Consequently he filed appeal with the Government of Pakistan on 8-4-1984. According to the appellant the appeal was replied to vide letter dated 9-7-1986, photostat copy of which has been produced as Annexure 'A' to the grievance petition. According to the respondent his appeal to the Government was decided on 5-7-1984 vide Ex. A.W. 1/6. The appellant in his cross-examination has admitted that his second appeal was rejected vide letter dated 5-7-1984.
6. It is, however, contended by Mr. Jeelani that this letter was not communicated to the appellant. In paras. 5 and 6 of the Reply Statement filed by the respondent, it is averred that the appeal to the Government of Pakistan was rejected on 5-7-1984 and the decision was conveyed to him. In his evidence the appellant had not specifically denied the receipt of this communication but had stated in Para. 9 of his affidavit-in-evidence that decision was conveyed to him by letter dated 9- 7-1986.
7. It may be pointed out that decision dated 5-7-1984 shows the subject `Appeal' against order of dismissal from service whereas subject in the letter dated 9-7-1986 is request for reinstatement in service'. Reference is also made to the application of the appellant dated 6-4-1986.
8. It appears that after his rejection of appeal the appellant had been moving applications requesting for reinstatement or converting his removal from service into compulsory retirement.
One of this application has been produced as Ex. A.W. 1/8 and is dated 20-3-1985.
9. Mr. Jeelani, learned counsel for the appellant has relied upon certain case law to show that the time taken in pursuing Departmental Appeal has to be excluded from the limitation and the date of cause of action is to be taken from the date of decision is communicated to the appellant. There appears to be no dispute as to this position of law, therefore I need not discuss this case law. He has also relied upon 1984 PLC 632 wherein the learned Punjab Labour Appellate Tribunal had observed that 'since no rule had been shown that there was no provision of representation, and the fact that the representation had been entertained it may be presumed that there may be such a provision. The petition was, therefore, held not to be barred by time. In that case the Departmental Appeal was rejected on 7-5-1976 and the representation was rejected on 9-91976. Apart from the fact, that in the instant case, the Departmental Appeal was rejected on 5-7-1984 whereas grievance notice was given nearly after two years with due respect, I am unable to agree with the learned Labour Appellate Tribunal Punjab that by merely making representation the time of limitation could be extended. In the proceedings under the LR.O. a period of three months is specifically fixed under section 25-A in which the worker has to serve notice of grievance upon his employer from the date of cause of action. As pointed out above there is provision of Departmental Appeal but there appears to he no provision of Departmental Representation. If we accept the contention, that by merely making representation, the limitation period could be extended then the intention of the legislature. in fixing the period of limitation would be frustrated and mandatory provision of section 25-A would become redundant. When a person makes applications or representations to any Department of Government, it has to be replied and it cannot be said that because it was replied to therefore period of limitation would be extended and it would give new cause of action under Section 25-A to the appellant.
10. There is no specific denial on the part of the appellant, that he had received the decision of the appeal vide Ex. A.W. 1/6 though the copy of this order is endorsed to the appellant. He admittedly has been receiving other communications viz. the letter A.W. 1/7 and order dated 9-7-1986.
Therefore it does not appeal to reason as to why he should not receive this order A.W. 1/6 rejecting the appeal. Even in the application dated A.W. 1/8 which was moved in March, 1985 it is not alleged, that he had not received any decision of the appeal but it rather indicates that he had knowledge of rejection of appeal, a he has requested for conversion of the removal of service into compulsory retirement. The burden of proof was upon the appellant to prove non-receipt of Ex. A.W. 1/6 as the official acts are presumed to have been correctly and properly performed.
11. In view of the admission of the appellant in the cross-examination which is referred to above and the circumstances of case as discussed I have no hestitation in holding that the appellant had knowledge of dismissal of appeal in July, 1984 and that his grievance notice dated 28-7-1986, which was given after two years of cause of action, was not maintainable as it was not made within the time prescribed under Section 23-A I.R.O., 1969.
12. In view of the above discussion I am of the opinion that the grievance notice and consequent grievance application filed by the appellant were time-barred and has rightly been rejected by the learned Labour Court. As such the appeal stands rejected.