I. MAHMUD, J.-This Constitutional Petition is directed against the order of the National Industrial Relations Commission, Islamabad, dated 24th July 1976, dismissing the appeal filed by Saeed Khan against his conviction under section 53(3) read with section 16(1)(d) of the Industrial Relations Ordinance, 1969, as being barred by time.
2. The petitioner's friend, Saeed Khan son of Anwar Saeed, was at the relevant time Vice-President of the Union of workers employed by the respondent No, 2, United Carpets Limited, an Industrial establishment at Karachi. The said Union raised demands and served strike notice on the employer in connection with which, on the complaint of the Manager of unfair labour practice, the Chairman of the National Industrial Relations Commission (hereinafter referred to as "the Commission" convicted Saeed Khan on 11-5-1974 under section 53(3) read with section 16(1) of the Industrial Relations Ordinance, 1969 (hereinafter referred to as "the R. O.") and sentenced him to undergo 18 month's R. I. And to pay a fine of Rs, 500 and in default of payment, to suffer further R. I. For 6 months.
3. On 16.5-1974, a Constitutional Petition No, 552 of 1974 was filed in this High Court on behalf of Saeed Khan for quashing his conviction on the ground, inter alia, that the Commission had no jurisdiction to try offences of unfair labor practice on the complaint of an individual person. While the petition was pending, the law was amended with retrospective effect by the Industrial Relations (Amendment) Ordinance, 1974 which was promulgated on 12-10-1974 empowering the Commission to initiate proceedings on the complaint of an individual party also. Consequently, the Petition was dismissed on 26-8-1975. Thereupon, on 2-9-1975 Saeed Khan filed an appeal to the Full Bench of the Commission against his conviction along with an application for condemnation of delay under section 65-B of the I. R.
0. By the impugned order, dated 24-7-1976, the Full Bench dismissed the Appeal as time-barred holding that the filing of a writ petition instead of an appeal to the Commission was no ground for condoning the delay in filing the appeal. The present Constitutional petition has been filed against the aforesaid impugned order.
4. Section 65-B of the I. R. O. Makes the provisions of section 5 of the Limitation Act, 1908 applicable in computing the period within which an appeal may be filed before the Commission. Therefore, the short question for our consideration is whether the time spent in prosecuting the Constitutional Petition No, 552 of 1974 in the High Court, namely, the time between 16-5-1974 to 26-8-1976, could, in law, be considered to constitute "sufficient cause" for not preferring the appeal within the prescribed time within the meaning of section 5 of the Limitation Act. We issued notice to the learned Advocate-General to assist us in resolving this question, and Mr. Ghulam All Memon, the learned Advocate-General, has appeared at our request. If the filing of the said writ petition in the circumstances could, in law, constitute a sufficient cause, then it was incumbent on the Full Bench of the Commission to have considered whether, in the circumstances of the case, the appellant before them had in fact succeeded in satisfying them that he had sufficient cause for not preferring the appeal within the prescribed time. It is clear to us from a perusal of the impugned order that this question was not considered by the learned Full Bench and the Appeal was prematurely dismissed as being time-barred. We agree with Mr. Ali Amjad, learned counsel for the petitioner and, indeed, it has been candidly admitted by the learned Advocate-General, that the omission to consider this question is an error of law apparent on the face of the order.
5. Mr. Ali Amjad relied on section 14 of the Limitation Act, 1908 which provides that in computing the period of limitation prescribed for any suit or application, the time during which the plaintiff or the applicant hats-been prosecuting with due diligence another civil proceeding whether in Court of first instance or in a Court of appeal against the defendant shall be excluded where the proceeding is founded upon the same cause of action or for the same relief and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature is unable to entertain it. The submission of Mr. Ali Amjad is that although section 14 does not in terms apply (since it applies only to a suit and an application), the principle underlying it may be invoked as a matter of equity and if the circumstances mentioned therein are shown to exist, they may constitute sufficient cause within the meaning of section 5 of the Limitation Act. In support of this submission, learned counsel cited the judgment of the Full Bench of the Allababad High Court in Mathura Singh v. Bhawant Singh and others (1), in which Strachey, C. J. Observed :- ' It is necessary to bear in mind the essential object of section 14 and the principle which underlies it. The principle is, broadly' speaking, the protection against the bar of limitation of a man honestly- doing his best to get his case tried on the merits, but failing through the Court being unable to give him such a trial. That is the principle; and I think it is clearly applicable, not only to cases in which a man brings his suit in the wrong Court, that is, a Court having no jurisdiction to entertain it, but also where he brings his suit in the right Court, but is nevertheless prevented from getting a trial on the merits by something, which, though not a defect of jurisdiction, is-analogous to that defect. . . I think that the Jesuit of the authorities taken as a whole, and the view which I take of the true principle, may be fairly summarised by saying that if there was an inability in the Court to entertain the former suit produced by any cause not connected in any way with want of good faith or due diligence in the plaintiff, that cause is of like nature to defect of jurisdiction within the meaning of section 14 of the Act."
' Bannerji, J. Added as follows :- "It seems to me that section 14 applies where the plaintiff has acted in good faith and with due diligence, but where he has made some bona fide mistake of law, procedure or fact which has precluded the Court from considering the issues involved in the case, either by reason of absence of jurisdiction, or by reason of rules of procedure prescribed in the Code of Civil Procedure, or some other cause of similar nature ; the inability, however, of the Court to consider the case must not be due to willful neglect or default on the part of the plaintiff."
' In that case, the plaintiff had mistaken in good faith, the rules of procedure prescribed in the Code of Civil Procedure forbidding misjoinder of plaintiffs and causes of action, as a result of which an appeal from the dismissal of his-suit, the plaint was ordered to be returned to him the time taken in representing it in the name of one of the former plaintiffs was condoned' under section 14 of the Limitation Act. These observations were quoted with approval in extenso by Anwarul Haq, J. (as the learned Judge then was) rib
(1) I L R 22 All. 248 ' the Division Bench Judgment in Kllachand Devechand & Co. (Private) Ltd. v. Messrs Sh. Mian Mohamed Allahbux (1). In that case, the period spent in pursuing an application for execution of an executory decree passed on a first award which the plaintiff decree-holder mistakenly believed was capable of execution, was excluded under section 14 of the Limitation Act to save the claim from limitation which otherwise would have made the second award invalid. It was held that the inability of the Court to entertain the execution application was due to a mistaken view of the law on the part of the decree-holder and the case fell within the ambit of section 14 of the Limitation Act.
6. Mr. Ali Amjad cited two additional authorities in support of his submission that the circumstances mentioned in section 14 and the principle underlying it, apply as a matter of equity, to section 5 and may constitute sufficient cause. The first case is Bril Indar Singh v. Kanshi Ram (2), in which the Privy Council applied the principle of section 14 to section 5, although section 14 of the Limitation Act did not in terms apply, by holding that the time spent in prosecuting a review application under a mistake of law may amount to sufficient cause for the exercise of the judicial discretion given to the Court under section 5 of the Limitation Act. The other case cited by Mr. Ali Amjad is Kayambu Pilled and another v. Court of Wards by Collector, Trichinopoly District and others (3), in which the delay in preferring a review petition was condoned in view of wrong proceedings having been filed and it was held that the analogy of section 14 applied and the existence of circumstances mentioned therein was regarded as a sufficient cause under section 5 of the Limitation Act for excusing the delay.
7. Mr. Ali Amjad submitted that the Constitutional Petition No, 552 of 1974 was filed on behalf of the appellant to challenge the conviction on the ground that the Commission had no jurisdiction to entertain the complaint of an individual person and that in fact the petition was admitted to regular hearing on the basis of the concluded judgment of the Division Bench in Hazoor Alam v.
National Industrial Relations Commission (4), which then held the field aad was operative and binding ; and that the constitutional remedy for quashing the conviction was being pursued in good faith and with due diligence. That the only reason why the petition was dismissed on 21-8- 1975 was because of the amendment of the law on 13-104974 with retrospective effect which nullified the basic judgment in Hazoor Alam's case, and that the change in law was a circumstance akin to defect of jurisdiction or mistake of law for which the appellant was in no way to blame. Mr Ali Amjad further submitted that the appellant also had sufficient cause for not preferring the appeal immediately upon coming to know of the amendment of the law on 13-10-1974, because not only was the order of conviction itself suspended by the Bench at the time of admitting the petition, but also because the matter was not free from doubt and there had to be a judicial decision whether the appellant's case was covered by the amended law or not.
8. It is not for us to consider the merits of these submissions of Mr. Ali Amjad, because the question of existence of sufficient cause under section 5 of the Limitation Act is a matter within the exclusive discretion of the Commission before whom the appeal was presented. We would,
(1) P L D1962 Kar. 510 (2) I I. R 45 Cal. 94
(3) AIR 1942 Mad. 170 (4) 1974 PLC 161 ' however, answer the question in the affirmative and hold that the Constitutional Petition filed on behalf of the appellant to challenge his conviction as being without jurisdiction could, in law, amount to sufficient cause under section 5 of the Limitation Act. But whether the circumstances mentioned in section 14 of the Limitation Act and which have been urged before us by Mr. Ali Amjad, did in fact exist so as to constitute sufficient cause for condoning the delay in filing the appeal, is for the Commission to be satisfied. We would, therefore, remand the case to the Full Bench of the Commission for reconsideration of the application of the appellant under section 65- B of the I. R.
0. In the light of the foregoing discussion.
9. Before we end, we would like to place on record our appreciation of the assistance rendered by Mr. Ghulam All Memon, the learned Advocate-General in this matter.