DECISION ' This is an appeal against the order of learned Labour Court No, V, at Karachi dated 28-1-1991 whereby the application of the appellant for condoning delay was not allowed by the learned Labour Court and his grievance application was dismissed as time-barred.
2. I have heard Mr. Muhammad Ibrahim Bajwa for the appellant and have also gone through the Record and Proceedings of this case.
3. The brief facts of this case appear to be that appellant was retired by the respondent on 10-1- 1989 after allegedly attaining the age of superannuation viz. 60 years. On the same date, the appellant moved an application to the respondent for re-consideration of the order, as according to him he had not reached the age of superannuation. It was rejected vide letter dated 11-1-1989.
The appellant then again moved applications dated 14-1-1989 and 4-2-1989 which were not replied, on 21-2-1989 he moved an application requesting that he should be sent for medical examination to find out his age which application was also not replied. He thereafter served grievance notice upon the respondent on 22-5-1989 which was also not replied. The appellant claims to have fallen ill from 1-8-1989 to 4-10-1989 for which he had produced Medical Certificates before the learned Labour Court. He filed grievance petition on 4-10-1989 but it was dismissed on the ground that it was not presented by the petitioner in person. He thereafter filed the grievance application on 16-10-1989 which was dismissed as time-barred.
4. From the dates as narrated above it would be seen that apparently the grievance notice has been served upon the respondent after the period of three months which is prescribed under subsection (1) of section 25-A of IRO 1969. It would also be seen that the grievance petition has also been filed after the expiry of 2-1/2 months after notice which is the period of limitation prescribed under proviso to subsection (4) read with subsection (2) of section 25-A. Thus, on the face of it there is delay at both the stages which the appellant had to explain.
5. Mr. Bajwa has tried to explain the delay in sending the grievance notice by stating, that he had taken the date of cause of action to be 21-2-1989 when he sent application for being sent for medical examination. The prayer in the grievance application is for setting saide the order of retirement and for reinstatement and not for sending the appellant for medical examination.
Therefore, the date of cause of action would be date on which the appellant was retired and not the date on which his request for being sent for medical examination was impliedly not accepted.
6. Mr. Bajwa further contends, that order of retirement was ab initio void and there was no limitation against void order. It is not disputed, that order was passed by competent authority which had the power to pass order but what is disputed is that they had wrongly taken the date of his birth to be 10-1-1929, though even according to School Leaving Certificate his date of birth was 1-1-1929. If this contention is accepted, the appellant has rather been retired after 10 days after attaining the age 60 years according to the school leaving certificate. Mr. Bajwa further contends that appellant was retired without notice. Notice in case of retirement when retiring age is fixed under rules, is not necessary, because the appellant is presumed to have got the knowledge of the terms of his service that he would be retired on attaining the age of 60 years. It may be, that the date of birth of the appellant may wrongly have been recorded in the register of the company but that would not make an order to be void order. At the most it could be a wrong order. There is no authority that limitation does not run against a wrong order passed by the competent authority. Therefore the grievance notice dated 22-5-1989 was obviously time-barred.
7. According to subsection (2) of section 25-A of IRO 1969 the employer had to reply to the grievance notice within 15 days but he did not reply. Proviso to subsection (4) provides that after waiting for the period mentioned in subsection (2), the worker has to take grievance to the Court within 2 months after expiry of such period.
8. Mr. Bajwa claims that 15 days expired after notice on 6-6-1989 when the Labour Court was closed for vacation and therefore he wants one month of vacation on not to be counted towards the period of limitation. It may be pointed that if the presiding officer was on Vacation, the office of the court remains open during the vacation. Furthermore if period of limitation expires during the vacation the parties have file the application immediately on the opening day of the Court after vacation. In the instant case, however, the period of limitation after giving the notice on 22-5-1989 expired on 6-8-1989. He claims to have fallen ill from 1-8-1989 to 4-10-1989. Even if the certificates of his illness are accepted, there is no explanation for delay from 4-10-1989 to 16-10-1989 when the grievance petition was filed. If the case is considered from any angle, there is delay in serving grievance notice as well as in filing grievance petition before the learned Labour Court. Therefore, the learned Labour Court had rightly dismissed the grievance petition of the appellant as time- barred.
9. In view of above discussion, I find no merit in his appeal which is accordingly dismissed in limine.