The petitioner through this Constitutional petition has sought declaration to the effect that the orders dated 16-7-1986 and 27-4-1986 passed by respondents Nos. 1 and 2 respectively are without lawful authority.
2. The relevant facts are that respondent No, 3 was employed with the petitioner as a Junior Assistant Weaving Master. The petitioner decided to close weaving section and as a result thereof services of respondent No, 3 was retrenched vide order dated 26-4-1984. The employee filed grievance petition on 26-8-1984 through Advocate. However, this petition was withdrawn by him on 2-7-1985 on the ground that petition through counsel is not competent. The second petition was submitted by the petitioner on 4-7-1985. The petitioner resisted this application. However, the learned Punjab Labour Court allowed the same vide order dated 27-4-1986. The petitioner filed an appeal before the Tribunal but the same was dismissed vide order dated 16-7-1986. Now the petitioner has impugned both the judgments of the Courts below.
3. The petition was admitted to regular hearing and notices were issued to the respondents. The respondent No, 3 alone has contested the petition while the other respondents were proceeded ex parte.
4. The learned counsel for the petitioner in support of the petition has argued that there was no legal basis for condonation of delay in filing the grievance petition. It is added that the premises for condonation are erroneous and illegal. It is submitted that section 14 of the Limitation Act was not attracted in the present matter at all, therefore, respondent No, 3 was wrongly given benefit of the provisions of this section. The other argument is that petition was filed only against the Managing Director and Personnel Manager was not impleaded as a respondent although he was a necessary party. The respondent No, 1 although held him a necessary party yet did not dismiss the petition. It is further argued that the learned Tribunal wrongly and illegally held that the appeal was incompetent. It is added that non-signing of memo. of appeal is not fatal especially when the memo. is signed by the counsel, whose power of attorney was duly appended with the memorandum of appeal. The arguments were concluded with the submission that respondent No, 3 was employed in a supervisory capacity, therefore, he was not a 'workman'.
5. On the other hand, learned counsel for respondent No, 3 has argued that the appeal was not competent because the appellant has not signed memo. of appeal. It is added that there cannot be two standards for 'employer' and `employee'. The argument in nutshell is that when the grievance petition without the signatures of the petitioner cannot be considered as validly instituted, then similarly appeal without signatures of the appellant cannot be deemed as competent. Since the employee is a weaker party, therefore, preference should be given to him.
The learned counsel on the point of limitation has submitted that regard had to be to grievance notice and not as to the grievance petition. It is added that since his client became aware of the legal position that grievance petition through a counsel is not competent, therefore, it was withdrawn.
6. I have given my anxious considerations to the arguments of the learned counsel for the parties, gone through the record, precedents and relevant provisions of law. Now I proceed to deal with the points raised by the learned counsel for the petitioner with counter reference to the arguments of the learned counsel for respondent No,
3. The first submission on behalf of the petitioner is that the petition dated 4-7-1985 was grossly barred by limitation. The submission is that the employee was not only to explain delay between 26-4-1984, when his services were terminated and 2-7-1985, when the first petition was withdrawn but he was also to render explanation as to period from 2-7- 1985 to 4-7-1985. It is added that respondents Nos. 1 and 2 wrongly excluded the first period and failed to appreciate that section 14 is not applicable while the Courts below did not advert to the other period at all. It is further submitted that there was no legal justification to withdraw the petition because the law was not interpreted by this Court for the first time in the case of Dandot Cement Company Ltd. v. Punjab Labour Appellate Tribunal and another 1985 PLC 413. But the law has been clarified by the Honourable Supreme Court long back in the case of Muhammad Hussain v. Pakistan Tobacco Co. Ltd. and another PLD 1980 SC 80.
7. On the other hand, learned counsel for the employee submitted that in the case of Muhammad Hussain ibid the principle was laid down in respect of a grievance notice and not grievance petition and that the petition was rightly withdrawn and second petition promptly filed.
8. The foremost point for determination of this issue is what is the effect of withdrawal on the limitation? The learned counsel for the petitioner has rightly submitted that section 14 of the Limitation Act is not applicable because the employee was not prosecuting his case with due diligence in a wrong forum. In fact the forum was correct. This is not all. The Courts below have failed to appreciate that the period for which the first petition remained pending cannot be A excluded. The limitation has to be computed from the date of grievance. In this behalf reference can be made to Order XXIII, Rule 2, C.P.C. which reads as under:- "In any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted."
It is, therefore, clear that the period for which the earlier petition remained pending cannot be excluded and in this way section 14 will not be applicable. In this behalf reference can be made to the cases of Mohanlal Baheti and others v. Moulvi Tabizuddin Ahmad AIR 1939 Cal. 625 and Achut Dadaji Joshi and another v. Parashram Vasudev Mogre AIR 1938 Bom. 281 while in the case of Kaliandas Balchand v. Muhammad Akbar Fatehali Khan and others AIR 1940 Sindh 125, the Court after reproducing the provisions of Order XXIII Rule 1 held as under:- "In face of the specific provision as to the law of limitation in Rule 2, it is difficult to see what room there is for the application of section 14, Limitation Act, to cases where these rules apply. This is also the view of a Full Bench of the Allahabad High Court in AIR 1934 All. 688. Order XXIII, Rules 1 and 2 apply to a case where the plaintiff on discovering that his suit must fail either by reason of some formal defect or because of other sufficient grounds for withdrawal applies voluntarily for the withdrawal of the suit and asks for permission to file a fresh suit and the Court grants his prayer.
Section 14, Limitation Act applies to a case where the Court by its own order has terminated the suit or proceeding on the ground that it has no jurisdiction to entertain it or that there is some other cause of a like nature which makes it impossible for the Court to entertain it. There is therefore, really no conflict between section 14, Limitation Act, and Rule 2 of Order XXIII, Civil Procedure Code."
This is not all. The Courts below have not attended to second part of the delay. The first petition admittedly was withdrawn on 2-7-1985 while the present petition was filed on 4-7-1985. The employee was also under legal obligation to explain the delay of two days. It is established principle of law that delay of each and every day has to be justified. This way the Courts below failed to decide the legal issue as to limitation in accordance with law. It is needless to observe that the petition was withdrawn on false pretext because the Honourable Supreme Court has clearly laid down that the grievance notice has to be served by the employee himself. The wording of subsections (1) and (4) of section 25-A being para materia, therefore, the same rule applied with full force to the presentation of the petitions, also. This Court merely based its decision in the Dandot Cement Factory on the judgment of Hon'ble Supreme Court in the case of Syed Muhammad Hussain ibid therefore, the petitioner was clearly negligent in pursuing his remedy in accordance with law. There was no justification to condone delay.
The second submission in support of the petition was that the Personnel Manager was the necessary party as he has passed the order. Although the learned Tribunal has noted the point yet failed to deal with the same. The submission is without any merit if reference is made to definition of 'employer' as given in section 2(viii). The definition is permissive and in relation to establishment it means any person or body of persons whether incorporated or not. Since the 'establishment' has been impleaded as a respondent that included I the other officials like Personnel Manager. The learned counsel for respondent No, 3 has referred to the cases of Punjab Urban Transport Board through its Secretary v. Punjab Labour Court No, 2 and another PLD 1976 Lah. 783, Habib Ullah v.
Divisional Superintendent Pakistan Railways etc. 1981 PLC 605, Abdul Salam v. Marker Alkaloids Ltd. and another 1982 PLC 664, Shafqat Ijaz Ahmad Khan v. Rahman Maize Co. Ltd. and another 1982 PLC 448 and Muhammad Shaiq v. Kohinoor Battery Manufacturers Ltd. and another 1982 PLC 175 in this behalf.
' The third submission was that the learned Tribunal wrongly dismissed the appeal of the petitioner as incompetent. It is submitted that omission to sign memorandum of appeal is not fatal especially when it is signed by learned counsel, whose power of attorney was appended with the appeal. On the other hand learned counsel for respondent No, 3 has argued that there cannot be double standard for 'employee' and employer and that rather weaker party should be given preference. The submission in other words is that since the petition has to be signed by the employee, therefore, the same principle should be applied to the appeals. The objection is too superficial and misconceived. It is not employers alone, who file appeals. It can be either of the two.
The appeal will be filed by the party aggrieved by order of Labour Court, therefore, the principle sought to be pressed into service is not applicable. The appeal is filed under section 37(B) of I.R.O., therefore, before proceeding any further it is worthwhile to refer to it. The same reads as under:-- "Awards and decisions of Labour Court:- (1)
(2)
(3) Any party aggrieved by an award given under subsection (1) or a decision given under section 25-A or section 34 or a sentence passed under clause (c) of subsection (5) of section 35 may prefer an appeal to Labour Appellate Tribunal within 30 days of the delivery or passing thereof and the decision of the Tribunal in such appeal shall be final."
'The text of the subsection reproduced above clearly repels the argument of the learned counsel for respondent No,
3. The appeal can be maintained by any party aggrieved. It is also clear that there is nothing in the subsection making the signing of memorandum imperative for the appellant. The cases of Forbes Forbes Campbell & Co. Ltd., Karachi and 3 others v. Habibur Rehman and two others 1982 SCMR 651 while the judgment of this Court reported as 1982 PLC 20 and N.A.
Shahryar v. Conforce Ltd. 1981 PLC 607 are not relevant for the decision of this case. The parallel provision is contained in Order XLI Rule 1, C.P.C., which reads as under:-- "Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded."
' It is clear from the comparison of the two provisions that while it is requirement of law that a memorandum filed under Civil Procedure Code should be signed by the appellant or his pleader whereas there is no such condition precedent in appeals under section 37 of the I.R.O. The learned counsel for the petitioner has also referred to Order III Rules 1 and 4 and placed reliance on the cases reported as PLD 1962 Lah. 830, AIR 1938 Lah. 698 and AIR 1957 Andra Pardesh 172. I need not discuss the same because this Court in recent judgment in the case of Shadoo Muhammad Khan v. Ganmoon and 2 others 1989 MLD 4624 after taking into consideration all the recent judgments and provisions of C.P.C. concluded as under:- "The result is that the defects in the pleadings, applications, memorandum of appeal with regard to presentation, signing and verification are technical irregularities relating to matter of procedure and same cannot furnish basis for rejection of plaint, application or memorandums of appeal. The same can be rectified at any stage of the proceedings."
7. The admitted position is that service of the respondent No, 3 was terminated as petitioner proceeded to close its weaving section of the Mills. The observation of the learned Tribunal that if the weaving section is closed the goods produced in the winding section can be sold to other Mills where weaving is done. This is clearly beyond the jurisdiction. It is within the exclusive discretion of the employer to run the business in the manner he thinks more suitable and beneficial. The learned Tribunal overstepped its jurisdiction while basing its decision on this observation. The respondent was incumbent of the Weaving Department. Therefore, if the Department was closed the management was fully justified to say good-bye to him.
8. The upshot of the above discussion is that this petition is allowed, the impugned orders of respondents Nos. 1 and 2, dated 27-4-1986 and 16-7-1986 are set aside.
The result is that grievance petition of respondent No, 3 is hereby dismissed. However, there is no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.