' I propose to decide W.P. No, 8886 of 1990, W.P. No, 8887 of 1990, W.P. 8888 of 1990, W.P. 5679 of 1991 and W.P. No,5682 of 1991 as the facts and legal controversy involved are the same and the judgments rendered by respondents Nos. 2 and 3 are also identical.
2. The facts relevant for the decision of these writ petitions are that the petitioner engaged respondent No,1 as High Pressure Pipe Welder for construction of a project known as PARCO Project.
It is added that the project was purely temporary and after the work concluded the services of the employees were terminated on 9-2-1981 with one month's salary in lieu of notice period. The employees filed applications under section 6 before the specified Authority under the Pakistan Essential Service (Maintenance) Rules, 1962 (hereinafter to be referred as Rules 1962). The same were, however, dismissed on 28-12-1981. Thereafter, they proceeded to issue grievance notices on 29-12-1981 and subsequently filed three grievance petitions before Labour Court No,2 on 1-2-1982.
The grievance petitions were consolidated, evidence of the parties recorded and after hearing arguments the same were dismissed vide order dated 25-6-1983 which order was assailed through an appeal before the Punjab Labour Appellate Tribunal. The appeal was ultimately accepted vide order dated 10-12-1990. M/s. Sui Northern Gas Pipelines Ltd. Has filed three writ petitions while two of the employees have also filed W.P. 5679 of 1991 and W.P. 5682 of 1991 whereby they have impugned judgments of respondents Nos.2 and 3 so far as back benefits were not allowed to them. The petitions were admitted to hearing and notices were issued to the respondents. The parties to the grievance petitions have appeared and contested the petitions.
3. The learned counsel for the Sui Northern Gas Pipelines Ltd., argued that a 'daily wager' irrespective of the length of employment cannot be treated as 'worker'. It is added that it is clear from paras. 4 and 6 of the order of the Labour Court that the employees were daily wagers and not permanent workers. The learned counsel in this behalf has referred to the judgment of the Hon'ble Supreme Court reported as Muhammad Yaqoob v. The Punjab Labour Court No,1 and 5 others 1990 SCM R 1539. The next argument is that the petitioner is run under the authority of the Federal Government while it has statutory service rules. Therefore, in view of the first proviso to section 1(c) of the Standing Orders Ordinance the provisions that the Standing Orders are not applicable to the persons employed by the petitioner. The learned counsel in this behalf has referred to the judgment of this Court in W.P. No, 2340 of 1983, decided on 30-3-1985 and Karachi Electric Supply Corporation Ltd. v. National Industrial Relations Commission and another PLD 1982 SC 113. It is added that since the establishment of the petitioner has been declared as essential service, therefore, normal rules of termination are not applicable. It is added that the yardstick for determination is that it should not be without reasonable excuse and no Court can interfere with such an order. It is added that in the present cases, since the project for which respondent No,1 was engaged came to conclusion with the completion of construction work, therefore, the services of the said respondents were terminated. The next argument is that the grievance notice has to be served within three months from the termination on 9-2-1981 while in the present cases the grievance notice was issued on 29-12-1981, therefore, the same was barred by limitation and similarly grievance petition was to be filed within two months of the maturity of the grievance notice whereas the same was filed on 1-2-1982, therefore, it was also barred by limitation. It is added that in view of the provisions of section 65-B of I.R.O. Only the provisions of section 5 of the Limitation Act are applicable to the applications, appeals and revisions under the I.R.O. And the provisions of section 14 are not attracted at all. The learned counsel in this behalf referred. To the cases reported as Pakistan Television Corporation v. M. Babar Zaman and others 1989 SCM R 1549, Mushtaq Ahmad v. Inspector-General of Police, Punjab, Lahore 1992 PLC 239, Noor Ali v. Kanpur O.S. Ltd. AIR 1955 Allahabad 707. Therefore, the time spent in the N.I.R.C. In pursuing proceedings without jurisdiction would not be excluded while computing the period of limitation for service of grievance notice and grievance petition. The arguments are concluded with the submission that the Labour Court althoughleld that the grievance petition was barred by limitation yet Proceeded to grant the same. The order is, therefore, patently illegal and illogical.
4. On the other hand, the learned counsel for the respondent No,1 argued that the delay in service of the grievance notice can be condoned in view of the provisions of section 65-B of the I.R.O. It is added that no notice was required to be served before filing of application with Authorised Authority under the Pakistan Essential Services Maintenance Act, 1952 (hereinafter to be referred as Act 1952), therefore, the notice was not served. But the moment the application was returned for want of jurisdiction on 28-12-1981, the respondent No,1 proceeded to issue the grievance notice on the very next date i,e, 29-12-1981. It is added that similarly the grievance petition was filed on 1-2- 1982 within the period of 34 days, therefore, the same was within time. The delay, if any, in moving the grievance petition may be condoned for the reasons as submitted above. It is argued that the respondents were not at daily wagers but were employed on regular basis. The salary was paid monthly and above all they received gratuity etc. On the termination of their services which are characteristic of permanent employment. It is added that the Labour Court and the Labour Appellate Tribunal have held that they were regular employees. In this behalf reference is made to para. 12 of the judgment of the Labour Court wherein it was held that the petitioner has failed to produce any effective evidence in rebuttal to show that the employees were daily wagers. It is added that since the order was void, therefore, the employees were entitled to re-instatement with back benefits and they remained unemployed throughout this period. Therefore, W.P. 5679 of 1991 and W.P. 5682 of 1991 are liable to be accepted. The learned counsel in this behalf referred to Zafrullah Khan Bajwa v. Punjab Labour Appellate Tribunal 1991 PLC 490 and Muhammad Bashir v.
Chairman, Punjab Appellate Court, Lahore 1991 SCM R 2087. It is added that the receipt of benefits which his clients were entitled on the eve of termination does not render the grievance petition incompetent on their behalf.
5. The learned counsel for the petitioner while summing up the arguments submitted that the employees have been ordered to be reinstated on technical ground, therefore, the Labour Court and the Labour Appellate Tribunal held that they were not entitled to back benefits. It is explained that the employees were only paid one month's salary in lieu of notice period and no other allowances and benefits such as gratuity etc., were paid to them on the termination of their services. It is added that since the employees had accepted the order of termination and severed their relations with the petitioner, therefore, they could not subsequently turn round and proceed to serve a grievance notice and file grievance petitions. They accepted the termination as lawful, therefore, could not maintain the grievance petitions.
6. I have heard the learned counsel for the parties and gone through the record and precedent cases. The first and main question for determination is the status of respondent No, 1, whether he was a 'daily wager' or the 'regular employee'. It is clear from the terms that he was a daily wager as his wage was fixed per day initially at the rate of Rs,125 and the same was enhanced to Rs,145 per day.
7. This is not all. It is the admitted position that the project for which the respondent No, 1 was employed was of temporary nature and the same was completed in January, 1981. Thereafter, the service of the respondent was terminated on 9-2-1981. There is no merit in the argument that respondent No,1 was a regular employee as is clear from the fact that he was given gratuity and other dues etc. On termination of service. There is nothing on the record to support the contention of the learned counsel for respondent No,
1. On the other hand it was clarified by the learned counsel for the petitioner that one month's salary in lieu of notice period was paid. The other argument that since respondent No, 1 remained employed for over a period of two years is sufficient to make him a permanent worker is without merit because no length of employment can make an employee permanent. The learned counsel for petitioner has rightly referred to the case of Muhammad Yaqoob (supra). The relevant portion reads as under:-- "In order to get the benefit of the Standing Orders Ordinance in the matter of termination of service, the petitioner had to show that he was a permanent workman. A 'Permanent Workman' has been defined in the Standing Orders Ordinance by reference to the nature of the work on which he has been engaged or employed. If the work is not of a permanent nature, then howsoever long may be his employment, he cannot be taken to be a permanent workman. The length of the period of employment by itself has not been made the ground or a test for determining the nature of the work. Keeping in view the nature of the work on which the petitioner was employed, namely, an addition to the regular strength of Malls for the maintenance of the gardens and the grounds on daily wages or on work charge basis, it cannot be said that such additional work being done by him was of a permanent nature necessarily. As regards the stigma attaching to the permanence of his service, the petitioner has as witness admitted that the termination order was oral and not in writing."
' It is, therefore, clear that respondent No, 1 was not a permanent workman, therefore, could not maintain the grievance petition.
8. Now coming to the argument that grievance notice and petition were barred by limitation. We have to refer to section 65-B of the I.R.O. Which reads as under:-- "Limitation.---The provisions of section 5 of the Limitation Act, 1908 (IX of 1908), shall apply in computing the period within which an application is to be made, or any other thing is to be done, under this Ordinance."
' It is clear from the above provision that section 5 of the Limitation Act applies in computing period within which an application is to be made or any other thing is to be done, under this Ordinance and no other provision of the Limitation Act is applicable to the proceedings or other actions under the I.R.O. The text of the above provision would show that it covers grievance notice and grievance petition under section 25-A of the I.R.O. Now the question arises whether the time consumed in the litigation before N.I.R.C. Can be excluded under section 5 of the Limitation Act. The scope of section 5 is entirely distinct from section 14. The Court is not vested with any discretion and the litigant is entitled as of right to exclude the period spent in proceedings in a wrong forum under section 5 of Limitation Act whereas section 5 gives a Court discretion in the matter. Section 14 is not applicable to the appeals; the principle of section 14 can be applied even while condoning the delay under section 5 of the Limitation Act. I am fortified in my view by the judgments in the cases reported as Kunwar Rajendra Bahadur Singh v. Rai Rajeshwar Bali AIR 1937 PC 276; Abid Ali Khan v. B. Kidar Nath 142 I.C. 826; Kamiruddin Mallik v. S.M. Bisnupriya Chowdhurani 33 CWN 76 and Brij Indar Singh v.
Kanshi Ram ILR 45 Cal.
94.
9. The main distinction between sections 5 and 14 of the Limitation Act has already been noted in the foregoing paragraphs. The Court while condoning the delay under section 5 has discretion as the petitioner has to prove that there was 'sufficient cause'. In the case of Kunwar Rajendra Bahadur Singh the first appeal according to valuation of suit or appeal was to be filed in the Chief Court but was initially filed in the Court of the District Judge and memorandum of appeal was presented in the Chief Court after the expiry of the limitation period, therefore, it was accompanied by an application under section 5 of the Limitation Act. The justification rendered was considered sufficient cause for condoning the delay within the meaning of section 5. It was held that the principle of section 14 should be applied in such cases. Now we have to find out whether the action of respondent No, 1 in approaching the N.I.R.C. Did or did not amount to gross-negligence? The petition before the N.I.R.C. Against the termination order was not competent at all. The respondent patently acted negligently while petitioning to the N.I.R.C. Therefore, there is no sufficient cause for condoning the delay within the meaning of section 5 of the Limitation Act. In the case of Kunwar Rajendra Bahadur Singh (supra) it was held that where the person having two alternative remedies, deliberately adopted one, his failure to get it is not a sufficient cause for extending the period of limitation prescribed by law for seeking the other. The N.I.R.C. Had no jurisdiction in the matter at all therefore, it was not a case of even alternate remedy. Therefore, the grievance notice as well as the grievance petition both were beyond limitation and the respondent No, 2 acted illegally while holding that the grievance petition and notice were within time. The order of respondent No, 2 is clearly illegal and without jurisdiction.
10. The upshot of the above discussion is that the order of respondent No,2, dated 10-12-1990 is declared illegal and without jurisdiction by accepting Writ Petitions Nos. 8886, 8887 and 8888 of 1990 with no order as to costs. The result is that the grievance petitions are dismissed both as barred by limitation and as incompetent. Writ Petitions Nos. 5679 and 5682 of 1991 have become infructuous and are dismissed accordingly.