' MRS. KHALIDA RACHID, J.---Petitioner, Afghan National Bank, 10-The Mall, Peshawar Cantt., through instant petition, has assailed the orders of respondents Nos. 2 and 3 dated 1-11-1994 and 17-12-1995, respectively, and prayed that impugned orders be declared as illegal, without jurisdiction and without lawful authority.
2. The brief facts, emanating this petition, are that Haji Akhtar Ali Qazalbash respondent No, 1, was hired in the petitioner-Bank some 37 years ago. On attaining the age of 60 years, he was retired from service vide order dated 13-3-1991. Aggrieved of his retirement, the respondent approached the Civil Court on 20-7-1991. However, the plaint was returned to the respondent on 4-5-1992 for want of jurisdiction. On 28-6-1992, the respondent served the petitioner-Bank with a grievance notice under section 25-A of Industrial Relations Ordinance, 1969. Whereafter, a grievance petition was filed before the Labour Court, Peshawar. The same was dismissed by the learned Labour Court vide order dated 20-9-1993. On appeal before Labour Appellate Tribunal the case was remitted to the trial Court with the direction to find out the employees' age for retirement working in the petitioner-Bank.
' Upon remand, the learned trial Court, after recording additional evidence, allowed the petition, and thus, the respondent was reinstated in service on the basis of order dated 1-11-1994. The appeal of the petitioner-Bank also did not prevail with the learned Labour Appellate Tribunal which was dismissed vide order dated 17-12-1995. Hence the present Constitutional petition.
3. We have heard Qazi Zakiuddin, Advocate, for the petitioner and Mr. Muhammad Latif Khan, Advocate, for respondent No, 1 and gone through the entire record of the case.
' The learned counsel for the petitioner has urged two main points before us. He, firstly, argued that the petitioner-Bank was served with the grievance notice not within the requisite period of three months after the cause of grievance arose to him and that further the respondent-employee was required to file the grievance petition in the Labour Court within two month as contemplated by proviso to section 25-A(4) of the Industrial Relations Ordinance but in violation thereof he had approached the Labour Court after lapse of five months, therefore, impugned orders are illegal and without lawful authority. It was, secondly, argued that as per relevant law of Afghanistan, a male employee is to retire at the age of 60 while a female at the age of 55.
' Repelling the submissions advanced on behalf of the petitioner, Mr. Muhammad Latif Khan, Advocate, appearing for the respondent, submitted that as the question of limitation was never raised before, either in the trial Court or the appellate forum, therefore, raising plea of limitation at this stage is not legally valid. The learned counsel insisted that delay, if any, has been condoned impliedly by lower forums. He further went on to contend that there is no upper age limit for retirement in the Labour Law of Pakistan and that as for Afghan Law referred to by the learned counsel for the petitioner would not apply to the case of the respondent-employee being a Pakistani citizen and furthermore this law being made after the appointment of the respondent cannot be applied retrospectively.. It was next contended that the respondent-employee was unionist and was active in the association and in pursuing the demands of the labourers which had annoyed the petitioner-establishment which ultimately culminated into his retirement.
4. We have considered the contentions put forward by the learned counsel for the parties. Before we proceed to enunciate our views on the pleas agitated before us by the learned counsel for the parties, we may, for convenience sake, cite section 25-A of the Industrial Relations Ordinance, 1969, which reads as under:-- "25-A. Redress of individual grievances.---(1) A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his shop steward or (collective bargaining agent), within three months of the day on which cause of such grievance arises.
(2) Where a worker himself brings his grievance to the notice of the employer, the employer shall, within fifteen days of the grievance being brought to his notice, communicate his decision in writing to the worker.
(3) Where a worker brings his grievance to the notice of his employer through his shop steward or (collective bargaining agent) the employer shall, within seven days of grievance being brought to his notice, communicate his decision in writing to the shop steward or, as the case may be, the (collective bargaining agent).
(4) If the employer fails to communicate a decision within the period specified in subsection (2) or, as the case may be, subsection (3), or if the worker is dissatisfied with such decision, the worker or shop steward may take the matter to his (collective bargaining agent) or the (Labour Court), or, as the case may be, the (collective bargaining agent) may take the matter to the (Labour Court), and where the matter is taken to the (Labour Court) it shall give (a decision) within (seven) days from the date of the matter being brought before it as if such matter were in an industrial dispute: ' Provided that a worker who desires to so take the matter to the (Labour Court) shall do so within a period of two months from the date of the communication of the employer or, as the case may be, from the expiry of the period mentioned in subsection (2) or subsection (3), as the case may be.
(5) In adjudicating and determining a grievance under subsection (4), the (Labour Court) shall go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case.
(8) If a decision under subsection (4) or an order under subsection given by the Labour Court or a decision of the Tribunal in an appeal against such a decision or order is not given effect or complied with within a week or within the period specified in such order or decision, the defaulter shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees.
(9) No person shall be prosecuted under subsection (8) except on a complaint in writing:--
(a) by the workman if the order or decision in his favour is not implemented within the period specified therein, or
(b) by the Labour Court or Tribunal if an order or decision thereof is not complied with.
(10) For the purpose of this section, workers having common grievance arising out of a common cause of action- may make a joint application to the Labour Court."
5. We feel inclined to agree with the first contention of the learned counsel for the petitioner.
Section 25-A of the Industrial Relations Ordinance, 1969, lays down a set procedure for bringing the grievance of the worker to the notice of the employer in writing either himself or through his shop steward or Trade Union within three months of the cause of such grievance. If the employer after the receipt of notice fails to communicate his decision within the period specified in subsection (2) or subsection (3) or if the workman is dissatisfied with such decision, the worker may approach the Labour Court with the grievance petition which he shall do so within a period of two months from the date of communication of such decision or at the expiry of the period mentioned in subsection
(2) or subsection (3). The respondent-employee was retired from the service on 13-3-1991. Instead of serving grievance notice upon the employer, the respondent-employee chose to file a civil suit on 20-7-1991, i.e, after 4 months. However, the plaint was returned to him under Order VII, Rule 10, C.P.C. On 4-5-1992 for lack of jurisdiction. The grievance notice was given on 28-6-1992 (Annexure- C) with delay of 472 days. Respondent No,1 filed grievance petition under section 25-A, I.R.O., 1969 on 2-9-1992 again beyond the prescribed period along with the application for condo nation of delay. However, the petition was ultimately dismissed by the learned Labor Court vide order dated 20-9-1993. On appeal, the learned appellate Tribunal vide order dated 4-5-1994 remanded the case to the trial Court with the direction to find out the age prescribed for retirement in the employer-establishment. After the remand, the case was decided in favor of the respondent- employee by both the learned labour forums. We are also not persuaded to consent to the contention of the learned counsel for the respondent-employee that he is protected on the principle underlying by section 14 of the Limitation Act, 1908, where a suitor diligently and in good faith pursuing his cause before the forums that had no jurisdiction, period spent in such litigation shall be excluded from counting. Respondent No,1 never pursued his case diligently and bonafidely.
After his retirement from service on 13-3-1991 he approached Civil Court on 20-7-1991 after lapse of 3/4 months. Furthermore, after notice under section 25-A, I.R.O., 1969 his petition before the Labor Court was moved beyond two months which are mandatory provisions of section 25-A of the Industrial Relations Ordinance, 1969. As for not agitating the plea of limitation before the lower forums, the plea of limitation being question of law, can be urged at any stage.
6. Now reverting to the second contention, it is correct that no upper age for retirement is provided in the Regulation governing the terms and conditions of the employees of the petitioner-Bank. The Afghan Law as mentioned in the Official Gazette of the Republic of Afghanistan in its issue No,645, dated May 21, 1988, and issue No,740, dated April 4, 1991, does prescribe retirement age as 60 years for male and 55 years for female but it would not be applicable to the terms and conditions of respondent-employee as the petitioner-Bank has its own arrangement at the time of hiring the services of the respondent-employee, i,e,, Service Regulations dated 21-3-1960. 'The Afghan National Bank (Pak) Ltd.' and secondly it cannot act retroactively, in that, respondent-employee was employed in petitioner-establishment much before the promulgation of the said law. However, we may observe that respondent Haji Akhtar Ali Qazalbash was retired at the age of 63, on the basis of being old, infirm and incapable of performing his duties indignantly which fact he has himself admitted that he was not maintaining good health. Furthermore. Being an Afghan Bank, the business of the Bank was' very much affected due to the prevailing war in Afghanistan, especially the trade through Torkhum Jamrud was at a snail pace. In a free market economy, enterprising skills demand a balance of profitability and subsequent welfare of its worker. Board of Directors would expect from the management to maintain a' balance in earnings and expenditures. For this reason it becomes necessary for the management to cut non-fixed expenditures. There is no denial to the fact that after certain age the reflexes of a person become less productive and he/she may not produce as expected. It is also observed that at one instance, respondent Haji Akhtar Ali Qazalbash, recommended three employees to be retired, when reached old ages. It therefore, could be assessed that retirement at an old age was recognized by him to be an acceptable policy of the Bank.
7. We are also not impressed with the plea that respondent was retired as a consequence of his active role in supporting the Bank's staff demand and because he raised the issue of a raise of allowance of Rs,200 for the staff, which was announced by the President of Pakistan. It is observed from the record that at the stage of negotiation, the Registrar under Industrial Registration Act did not register staff union. Therefore,' the position of respondent as bargaining agent could not be accepted, hence, it is not proven either that it was the sole reason of his lay off.
' Consequently, in view of our findings particularly qua first contention of the learned counsel for the petitioner, we, while accepting the writ petition declare the impugned orders to have been passed without lawful authority and of no legal effect. Parties are left to bear their own costs.