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Constitutional Petition No. 628 of 1974, decided on 12th November 1975.

-- S. 5-Condonation of delay-Appellant, a resourceful organisation, not filing appeal within prescribed limitation period-Contention that appellant's counsel was suddenly required to proceed out of station, hence no appeal could be bled in time, held, no excuse-Appellant could file appeal through one of its representatives, or by clerk of counsel, personal attendance of counsel being not required. [Industrial dispute].-

The petitioner is a statutory corporation constituted under section 3 of Provincial Industrial Development Corporation (West Pakistan) Ordinance, 1962 and the third respondent was employed with it as a Junior Clerk on 4th November, 1966. During the course of service he acquired technical qualifications in Diamond Core Drilling from Geological Survey of Pakistan, Quetta Subsequently, he applied for the post of Assistant Driller in the Mineral Development Wing of the petitioner's organisation and he was appointed as such with effect from 21st September, 1968 in the grade of Rs. 350--500/35-850.

2. In 1969, scales of pay were revised by the petitioner ride its letter dated 22nd August, 1969 from grade 35C-25-500-850 to 450-50-1000 but the third respondent was not given the revised scale of pay. He filed an application before the Junior Labour Court on 28th May 1973 which was dismissed on 29th May 1973 on the ground that the grievance of the third respondent was not covered by section 25-A of Industrial Relations Ordinance, 1969.

3. The third respondent filed an appeal before the Labour Court. which was decided on 9th July 1973 and the case was remanded to Junior Labour Court for decision on merits. The Junior Labour Court on receiving back the case from the Labour Court sent a notice to the petitioner but nobody appeared on behalf of the petitioner despite service notice orb 15th September, 1973 as such an ex parte enquiry was held and the applica tion of third respondent was allowed by order dated 11th October 1973.

4. The petitioner filed an appeal before the Labour Court on 9th November 1973 which was dismissed on 28th February 1974 mainly on the ground that the appeal was barred by time and that no cogent reasons had been assigned by the petitioner for the condonation of inordinate delay caused in the filing of the appeal.

5. The learned counsel for the petitioner has mainly argued before me that the evidence had been misread by the Junior Labour Court a3 well as Labour Court. According to him, letter dated 22nd August 1969, whereby -the grades were revised (Annexure'B' with the petition), mentioned only the non-technical staff whereas the third respondent belonged to the technical staff. He has invited my attention to Noora v. Settlement and Rehabilitation Commissioner (1969 S C M R 517) and Commissioner and another v. Mian Sher Muhammad (1972 S C M R 395) and argued that where there was misreading of evidence the High Court could interfere with the orders of the inferior tribunal in exercise of its writ jurisdiction and similarly investigation could also be made into the disputed question of facts in writ jurisdiction. I am in full agreement with the learned counsel in so far as law laid down in the above citations is concerned, but the fact remains that in this case no instance of misreading of evidence has been pointed out. All what the learned counsel has stated is that vide letter dated 22nd August 1969 pay scales for non-technical staff were increased, whereas the third respondent being a technical hand could not claim the enhancement of his scale of pay. On the other hand I find in the order of the Labour Court that the petitioner had revised the pay scales of all the employees serving in identical grades i.e. in the grade 350-25-500/35-850 to 450-50-1000. The observations .of the Labour Court in this connection are as under-

"As for the pay of the applicant, since the respondent had revised pay scales of all the employees serving in the identical grade of Rs. 450-50-1000, the pay scale of the applicant should also be revised and fixed in the above pay scale."

From these observations it transpires that the pay scale of all the employees who were working in the grade of 350-25-500/35-850 were revised and upgraded as 450-50-1000. These observations could not find place in the judgment unless there was some evidence to this effect before the Junior Labour Court as well as the Labour Court. Not only this, but there is another observation in the decision of the Labour Court which shows that the third respondent was given the scale of pay claimed by him vide petitioner's letter dated 18th May, 1973 and hence the only dispute between the parties now left is in respect of the arrears.

6. The learned counsel for the petitioner has next argued that he could not file the appeal within time because he was required to attend his ailing father at Shikarpur. He has filed his personal affidavit wherein he has stated that he received a telegram on 25th October, 1973 that his father was ailing and therefore he left for Shikarpur without filing the appeal although he had prepared the memo of appeal for filing on 26th October 1973. The memo. of appeal bears the date as 26th October 1973 though it was filed beyond the period of 15 days. The reason given by the learned counsel for the petitioner was not considered sufficient by the Labour Court for condonation of delay within the meaning of section 5 of Limitation Act. The learned counsel insisted that since it was a personal reason which prevented him from filing the appeal within time, therefore the same should have been accepted by the Labour Court. I am afraid I cannot contribute to this view. In case the learned counsel was suddenly required to proceed to Shikarpur he could ask the petitioner to file the appeal and the petitioner being a resourceful organisation could file the appeal through one of its representatives. The appeal could also be filed by the Clerk of the learned counsel for filing of the appeal in the office of the Court the personal attendance of the learned counsel was not necessary. Be as it may, I am unable to see any reasons why I should interfere with the finding of the Labour Court whereby it has refused to condone the delay caused in the filing of the appeal. On the other hand I am constrained to remark that the petitioner has throughout been negligent in contesting this case. According to the observation of the Labour Court summons of the Junior Labour Court were received by the petitioner on 5th September 1973, whereas the case was decided by the Junior Labour Court on 11th August 1973. During the period from 5th September to lath October 1973 the petitioner did not care to attend the Junior Labour Court which shov4s that the petitioner was indifferent as far as the contesting of this matter was concerned. Not only this, after an ex parte order was passed the petitioner dial not move any application before the Junior Labour Court to get it set aside.

7. In the result, for the foregoing reasons I do not find any justification to interfere with the award of Junior Labour Court dated filth October 1973 and on the decision of the Labour Court dated 28th February 1973. They: petition is consequently dismissed but with no orders as to costs.

S. A. H. Petition dismissed.

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