DECISION I propose to dispose of all the 34 appeals by this single decision as the respondent in all the appeals is same and the points of Law and fact involved are also same.
2. The appellants were admittedly the workmen working with the respondents when on 23-9-1987, their services were terminated on the basis of resignations allegedly voluntarily tendered by the appellants. However, on 24-9-1987, the appellants made complaints to the Sindh Government, that they were forced to resign and to accept legal dues under the voluntarily resignation scheme launched by the management. On the basis of this complaint and under directions of Government of Sindh, the Labour Department took up the matter with the management and with the consent of the Managing Director of the respondents, an enquiry was conducted by Mr. Baqar Ali Khan, Joint Director (Labour) Headquarters at Karachi, wherein it was established that force was used in obtaining resignations from a large number of workers. In view of the above, the Managing Director of the respondents was requested by the Labour Department to take back the aggrieved workers, but, they declined to do so and thereafter the Labour Department intimated the appellants under letter, dated 10-2-1988, advising them to proceed according to Law in order to get their grievances redressed. The appellants thereafter served grievance notices upon the respondents on 10-3-1988, which was replied by the respondents, vide their letter, dated 21-3-1988, refusing to redress the grievance of the appellants and, therefore, the appellants filed their individual grievance petitions on 20-5-1988. All the grievance petitions were dismissed by the learned Labour Court on the point of limitation on the preliminary objections raised by the respondents.
3. I have heard Messrs Abdul Majecd and M.M. Jeelani on behalf of the appellants and Mr. Mushir Alam, learned Advocate for the respondents.
4. The contention of the appellants is that the cause of action accrued to them from 10-2-1988, when the management had refused to reinstate them in pursuance of the result of the enquiry held with the consent of the respondents which refusal was communicated to them by the letter of Joint Director (Labour) dated 10-2-1988. It is submitted that if this date is accepted as the date of cause of action, then, the grievance notice as well as the grievance petitions would be within time.
On the other hand, the respondents contend that the date of cause of action is 23-9-1987, when the services of the appellants were terminated on the basis of resignations voluntarily tendered by them and the grievance notice as well as the grievance petitions were time-barred.
5. It is a settled Law that where there is provision under the Rules for appeal or where the management treats any representation of the workman as appeal, date of cause of action would accrue from the date of decision of such appeal or representation. The principle underlying the decision is that the order of termination is kept under consideration and becomes final only after the decision of appeal or representation. It is submitted on behalf of the appellants, that they had moved their complaints to the Government with regard to alleged unfair practice of the management forcing them to resign, immediately on the second day of their alleged resignations and that the management, by agreeing to the enquiry, kept the question of resignation or termination of services of the appellants under consideration, till the decisions of the enquiry. It is, therefore, contended that even if there was no provision under law for such procedure, still the principles underlying aforesaid principle applicable in the case of appeals would be applicable to the case of the appellants also. In the alternative, it was further submitted, that at least this fact can be taken into consideration while condoning the delay under section 65 of the I.R.O. 1969, read with section 5 of the Limitation Act. When asked as to why the appellants did not make any application under section 5 of Limitation Act for condoning the delay, it was submitted, that the contention of the appellants is that the application was within time as the date of cause of action was 10-2-1988 and that no objection of limitation was raised by the learned Labour Court at the time when the applications were admitted. It was further submitted, that the application have been dismissed without recording evidence and that the appellants could have moved applications under section 5 of the Limitation Act, if the evidence had been recorded and if the evidence so warranted.
6. In 1984 PLC 1296, the learned Labour Appellate Tribunal Punjab had held that the time spent in a wrong forum was to be excluded from the period of limitation. In that case the petitioner approached the N.I.R.C. under bona fide belief that the had jurisdiction and filed grievance petition before the Labour Court only after the dismissal of the petition by the N.I.R.C., for want of jurisdiction.
It was held to be within time. In another case, reported in 1980 PLC 106, the learned Punjab Labour Appellate Tribunal held that the termination was still under consideration, while the appeal was pending and became final when the appeal was dismissed and then alone the petition under section 25-A, I.R.O. 1969, would have been competent. In 1980 PLC 655, in the case of .Noor Muhammad v. Messrs Shah Textile Ltd., Karachi, the employer while defending the application of a workman before the Authority under the Payment of Wages Act, 1936, undertook to take the workman back in service. It was held by this Tribunal that the cause of action for the purpose of limitation for grievance notice, in circumstances, would start from date of refusal to comply with the settlement and not from original date of termination. It is submitted that in instant case also, the date of cause of action would arise from the date, the management had refused to comply with the settlement as the result of the enquiry held by the Joint Director with consent of the respondents.
7. Considering all the facts and Law discussed above, in my opinion decision of the learned Labour Court even on the point of limitation without recording evidence, appears to be premature. The learned Labour Court had neither given any finding nor it has considered the contention of the appellants that the cause of action accrued to them from the date of refusal of the respondents to take them back in accordance with the decision of the Joint Director Labour in the enquiry held with the consent of the parties. It is necessary even before deciding the question of limitation, that the parties be allowed to lead evidence to show as what were the terms of reference of enquiry and on what conditions the management had agreed while participating in the enquiry. For this purpose, the evidence of Mr. Baqar Ali Khan, Joint Director Labour is very essential. 1, therefore, set aside the impugned orders and remand the cases back to learned Labour Court to decide the cases on merits after evidence is recorded. It will be open to the parties to lead evidence with regard to limitation which question also the learned Labour Court is to decide after evidence is recorded.
8. Mr. Musheer Alam, the learned Advocate for the respondents have raised a plea that the applications were not maintainable because the appellants had resigned and had taken their dues. It is also question of fact, which the Labour. Court would decide only after evidence is recorded. Therefore, I would refrain from expressing my opinion on this aspect of the case.
9. One appeal bearing No, KAR-307/89 filed by appellant, Shoeb Ahmed was filed after the period of limitation. An application for condonation of delay is moved on the ground of his illness supported by an affidavit and medical certificate. There is no counter-affidavit in rebuttal. As such, the dealy in filing this appeal is condoned.