DECISION ' This is an appeal against the order, dated 11-2-1990, passed by learned Presiding Officer, Sindh Labour Court No, IV, Karachi whereby the grievance petition filed by the appellant was dismissed.
2. The brief facts of the case are that the appellant was admittedly a workman employed by the respondents. On 16-7-1988 he is allowed to have picked up a quarrel with kiln foreman Taj Muhammad, who was also President of C.B.A., and used abusive and filthy language against him and also threatened him with dire consequences. Taj Muhammad filed complaint with the management whereupon the appellant was charge-sheeted on 15-7-1988. After domestic enquiry, in which he was found guilty of the alleged charges, he was dismissed from service vide order dated 3-8-1988. After serving grievance notice upon the respondents the appellant filed grievance petition before the Labour Court.
3. I have heard Mr. Muhammad Shafiq Qureshi, learned Advocate for the appellant and Mr. S.S. Jahangir Khan, learned counsel for the respondents and have also gone through the record and proceedings of the case.
4. A preliminary objection is raised by the respondents that the appeal is time-barred. The impugned order was passed on 11-2-1990. Appellant applied for copy on 14-2-1990 and he was delivered the copy on the same day. However, he filed appeal on 14-3-1990. He would be given one day as time for obtaining copy and therefore appeal had to be filed by him on or before 13-3-1990.
However he filed appeal after lapse of 11 days. He also moved application under section 16(5)(b) of I.R.O., 1969, for condonation of delay of ten days on the ground that on 23-2-1990 he received telephonic message that his father-in-law had been murdered and therefore he went to his home town from where he returned on 20-3-1990. He contacted his Advocate, who prepared appeal on 22-3-1990. 23rd being 'Friday', he filed appeal on 24-3-1990. Mir Murtaza Ali, Factory Manager of the respondents had filed counter-affidavit challenging the averments made by the appellant in his affidavit.
5. Apart from the word of the appellant there is no evidence in support of his averments. No 'FIR.' with regard to alleged murder or even a 'certificate' from the Head Man or Tribal Chief was produced with regard to the alleged murder of the appellant's father-in-law. Besides the copy of order was delivered to him on 14-2-1990 whereas he is alleged to have left for 'Swat' on 26-2-1990.
He had enough time to get the appeal prepared and filed within this period as his counsel in the lower Court and in appeal is the same. He need not have waited up to the last moment. He is alleged to have received telephonic message on 23rd February and left for Swat on 26-2-1990.
Knowing about his alleged custom he could have got the appeal prepared and filed before he left Karachi. He has not even produced any 'ticket' or 'Railway voucher' about his alleged journey to Swat. According to him as per custom, he had to remain in Swat in mourning for 'forty days'.
Admittedly he returned before forty days expired viz. On 23-3-1990. If he did not strictly abide by the custom he could have come even earlier in order to file appeal within time.
6. The burden of proof was upon the appellant to explain the delay in filing appeal and to show that the delay was for the reason beyond his control. Apart from the fact that there is no evidence in support of the averment made by the appellant it his affidavit, in support of 'Application for Condonation of delay' the fact remains the appellant could have come earlier to file the appeal within time or could have filed appeal before he left Karachi. The appeal is time-barred and therefore dismissed as such.