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Appeal No. KAR‑109 of 1981, heard on 25th March, 1981.

‑‑‑‑ Ss. 25‑A (1) & 65‑B read with Limitation Act (IX of 1908), S. 5‑Limitation‑Delay‑Condonation of‑‑Provision of S. 14 of Limitation Act, 1908 for exclusion of time spent in bona fide proceedings in a Court without jurisdiction‑Not applicable to grievance petition before Labour Court ‑ Only S. 5 of Limitation Act, 1908 applicable to such petition‑Delay can be condoned if petitioner satisfies Labour Court regarding sufficient cause for delay‑Termination of service challenged by suit before civil Court knowingly that petitioner was a workman for purposes of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968‑Civil suit decided against petitioner‑‑Subsequently grievance notice issued on employer much after prescribed limitation and grievance petition filed before Labour Court about 18 months after cause of action‑Petitioner, in circumstances, held, bad no sufficient cause in favour of condona tion of delay in filing grievance notice to employer and grievance petition before Labour Court.

Controller, Printing & Stationery Department v. Mahmood Hafeez 1980 P L C 593 and P L J 1979 Tr. C (Labour) 255 ref.

‑‑‑ S. 25‑A‑Grievance notice to employer ‑ Notice through Advocate‑Not a valid notice‑‑Grievance petition‑Not maintain able on basis of such notice.

Syed Mehmood Hussain v. Pakistan Tabacco Co. Ltd. P L D 1980 S C 80 fol.

S. Zahir Hussain Chishti for Appellant.

Date of hearing : 25th March, 1981.

The appellant, who was employed as a foreman in the respondent -Company was informed vide letter, dated 12th February, 1979, that he will be retired from service on 14th March, 1979 on attaining the age of superannuation. This order was issued by the respondent‑Company on the basis of the report of the Medical Board which examined the appellant in respect of his age and certified that he would be attaining the age of 60 years on or about 14th March, 1979. The appellant challenged the orders of his retirement before a learned Civil Judge at Karachi who dismissed his suit as being not maintainable. The appellant preferred an appeal to the District Court against the judg ment of the learned Civil Judge but the appeal was unsuccessful. Therefore the appellant sent a grievance notice to the respondent on 31st August, 1980, and not obtaining any redress he filed a grievance petition before the learned Fourth Labour Court on 21st September, 1980. The learned Labour Court, however, dismissed the appellant's grievance petition on the ground that it was barred by limitation since neither a grievance notice was given nor the grievance petition was filed within the prescribed period. In coming to this conclusion the learned Labour Court relied upon two decisions of the Punjab Labour Appellate Tribunal, reported in N L R 1979 Labour Tr. (Pb.) 311 and P L J 1980 Tr. C (Labour) 14.

2. Mr. S. Zahir Hussain Chishti, the learned counsel for the appellant, has advanced a two‑fold argument in support of his conten tion that the decision of the learned Labour Court is erroneous. His first contention was that the appellant, by legal notice, dated 28th February, 1979, had challenged his premature retirement and consequently this notice should be considered the required notice under subsection (i) of section 25‑A, I. R. O. The said notice, however, cannot be considered to be the requisite notice for two reasons. In the first place, the said notice was given by the appellant some three weeks prior to his retirement, which is the grievance against which he has preferred the present grievance petition. The second objection against the said notice is that it had been given through an Advocate. It has been held by their Lordships of the Supreme Court in the case of Syed Mehmood Hussain v. Pakistan Tobacco Co. Ltd. (P L D 1980 S C 80), that a notice given by a workman through an Advocate is not a valid notice for the purposes of section 25‑A, I. R. O., and that on basis of such notice a grievance petition cannot be filed or maintained.

3. It was next contended by Mr. Zahir Hussain Chishti that since the appellant, on the mistaken advice of his Advocate, was diligently pursuing his case in the Civil Courts, the delay in filing the grievance petition should be condoned under the provision of section 65‑. I. R. O. He submitted that the appellant had filed an application for the condonation of delay. 1t may be mentioned that this application was filed not alongwith the grievance petition but during the course of the proceed ings before the learned Labour Court. The learned Labour Court, relying upon the decision of the Labour Appellate Tribunal Punjab, reported in N L R Labour (Tr.) 13 ( ) has held that section 65‑B, I. R. O. empowers a Labour Court to condone the delay in the making of an application for taking any other proceedings in a Court but does not authorise the extension of the period in the service of the grievance notice upon the employer. In other words, the view taken appears to have been that the words "any other thing is to be done" appealing in section 65‑B, 1. R. O., should be considered ejusdem generis with the immediately proceeding words "an application is to be made". A different view, however, has been taken by the successor Chairman of the Punjab Labour Appellate Tribunal in the case of Controller, printing 8c Stationery Department v. Mahmood Hafeez (1980 P L C 593). Disagreeing with the view taken by his learned predecessor in the case reported in N L R 1979 Labour (Tr.) 331 and P L J 1979 Tr. C (Labour) 255, the learned Chairman has observed as follows :‑‑

"8. The words "any other thing" mean every thing other than "application" referred to in the earlier part of the same section. The use of the words "any" and "thing" are significant and wide enough to cover any kind of actions or proceedings whatever their nature whether judicial or otherwise. The word "thing" cannot be limited only to judicial proceedings before the Labour Court but it will cover all judicial as well as non judicial actions or proceedings under the Industrial Relations Ordinance, 1969. If we accept the argument of the learned counsel for the appellant that those words are confined only to judicial proceedings or actions before the Labour Court, we will be reading something in this section as if non‑judicial actions or proceedings are excluded which the Legislature has not done. The plain words used in this section leave no room for any doubt that the words "any other thing" include judicial as well as non‑judicial proceedings or actions.

9. The words "under this Ordinance" mean under the Industrial Relations Ordinance, 1969. It is not denied that service of grievance notices is most important act or thing to be done under the Ordinance, before without service of such, the jurisdiction of the Labour Court cannot be invoked. The grievance notice is given to or served upon the employer under section 25‑A which is undoubtedly part of the Industrial Relations Ordinance, 1969. Hence service of grievance notice under section 25‑A will be a thing done under this Ordinance, i.e. the Industrial Relations Ordinance, 1969.

10. Keeping in view the first and most elementary rule of inter pretation, the words "any other thing to be done under this Ordinance" used in section 65‑B must be construed according to their ordinary meaning as there is no ambiguity in them. These words given their ordinary meaning leave no room for any doubt to include grievance notices or other non‑judicial proceedings under section 65‑B. It. therefore, can safely be held that section 65‑B is not confined to the applications or other thing to be done in connection with only the judicial proceedings or applications before a Labour Court, but it also covers all pro ceedings judicial as well as non‑judicial which are taken under the Industrial Relations Ordinance, 1969.

4. Even if the view taken in the case of the Controller, Printing & Stationery Department, is correct, then also the present appeal must fail as no valid grounds have been made out for condoning the delay in the service of the grievance notice and the filing of the grievance petition. As already stated, the appellant stood retired from service with effect from 14th March, 1979. He was required to serve the grievance notice within three months of the date of retirement. The grievance notice was, however, served on 31st August 1980, i.e., about 17 months later, while the grievance petition was filed on 21st September 1980, about 18 months after the grievance had arisen. Mr. Zahir Hussain Chishti, however, contended that all this delay should be condoned because the appellant was diligently pursuing the matter before the Civil Court. It may be mentioned that specific provision has been made in section 14 of the Limitation Act for exclusion of time taken in bona fide proceedings in a Court without jurisdiction. However, section 65‑B, 1. R. O., makes only section 5 of the Limitation Act applicable to applications and pro ceedings under the I. R. O. and not other provisions of the Limitation Act, including section 14 thereof. Furthermore, section 5 of the Limitation Act comes into play when the appellant or applicant satisfies the Court that he has sufficient cause for not preferring the appeal or making the application within the prescribed period. In the instant case, it was the case of the appellant himself before the Civil that though) he was designated as a foreman he was employed in non‑supervisory capacity. In the counter‑'affidavit filed by the respondent‑Company before the learned Civil Court, the stand taken was that since the appellant was a workman for the purposes of the Standing Orders Ordinance his suit before the Civil Court was not maintainable. In view of this counter affidavit it cannot be said that thereafter the appellant had sufficient cause for pursuing the civil suit before the learned Civil Judge. However, not only the appellant continued to prosecute the civil suit but when the civil suit was decided against him he preferred an appeal to the District Court which was unsuccessful. I am, therefore, of opinion that in the circumstances the appellant has filed to satisfy me that he had sufficient cause for not serving the requisite notice or pre ferring a grievance petition before the learned Labour Court within the prescribed period.

5. For the reasons discussed by me above, I find no merit in this appeal. I would, accordingly, uphold the decision of the learned Labour Court and dismiss the appeal in limine.

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