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Appeal No. HYD‑536 of 1979, heard on 21st September, 1980.

‑‑‑‑ S. 25‑A‑‑Grievance notice to employer‑Limitation‑Time spent in appeal, review and mercy petition‑Excludable only if such appeal, review and mercy petition provided under law, settlement or by practice‑Entertainment of such petitions and not rejecting same as not maintainable ipso facto does not establish existence of practice‑Grievance notice served about 7 months after impugned order and time consumed in appeal, review and mercy petition in absence of any statutory provision or provision in settlement or prevailing practice, held, time‑barred.

Raes M. Mushtaq for Appellant.

Mainuddin Baloch for Respondent.

Date of hearing: 21st September, 1980.

The services of the respondent, who was employed as Bus conductor in the appellant corporation, were terminated on 11th April, 1978 on charges of unauthorized use of the bus in his charge and misappropriation of fare. The respondent filed appeals and a mercy petition against the said orders before the authorities but as he obtained no redress, he preferred a grievance petition before the learned VIth Labour Court, which has upheld the claim and has ordered his re‑instatement in service with full back benefits. The appellant corporation has come up in appeal against the said decision to this Tribunal.

2. Mr. Raes M. Mushtaq, the learned counsel for the appellant corporation, has assailed the impugned decision of the learned Labour Court and contested the claim of the respondent workman solely on the ground that the respondent's grievance petition was barred by limitation. The learned counsel submitted that whereas the respondent's services were terminated by order, dated 21st April, 1978 which order was served on hire the same day, the grievance notice was given by him to the appellant corporation on 11th December, 1978 more than 8 months later, whereas it should have been served within the period of 3 months. The learned counsel contended that there is another bar of limitation to the enter tainment of the respondent's grievance petition, in that, the grievance petition was filed before the learned Labour Court on 3rd March, 1979, i. e. beyond the period of 2 months of the service of the grievance notice upon the employer. Mr. Moinuddin Baloch, the learned counsel for the respondent, on the other hand, strongly supported 'he impugned decision and contended that though the respondent's services were terminated on 11th April, 1978, he first filed an appeal to the Chairman, on 19th April, 1978 but as the same was dismissed, vide order, dated 18th May, 1979 he filed a second appeal/review petition, dated 5th June, 1978, which came to be dismissed by the order, dated 9th October, 1978, and finally he filed a mercy petition, dated 3rd October, 1978, which was dismissed on 26th November, 1978 and within one month of the dismissal of the mercy petition he served a grievance notice, dated 14th December, 1978 upon the corporation. The contention of Mr. Moinuddin Baloch was that the grievance of the respondent lastly arose when he was informed that his mercy petition was dismissed. The respondent would be entitled to deduct from the period prescribed for service of grievance notice upon the employer if there was either a statutory provision, a pro vision in a settlement or a practice in the appellant‑Corporation for filing of first appeal, second appeal and mercy petition. Mr. Moinuddin Baloch was unable to cite any provision of law or any settlement autho rising the filing of such appeals or mercy petition. However, he con tended that there was such practice in the appellant‑Corporation and in support of it he pointed out that if there had been no such practice the Department would not have entertained the appeals, etc., but would have rejected the same summarily. I regret that I see no force in this contention. Merely because the appellant‑Corporation has not dismissed the appeals or the mercy petition on the ground that they did not lie under any pro vision of law or settlement or that it was not mentioned expressly in the order of dismissal that there was no practice for filing the same, does not mean that in fact such practice exists in the appellant corporation. It was for the respondent to establish the existence of such practice which he has failed to do. At best, one appeal could be considered allowable or reasonable. Since no evidence has been led to show the existence of the practice providing a second appeal or a mercy petition, the respondent should have served the grievance notice upon the appellant‑Corporation within 3 months of the orders, dated 18th May, 1978 dismissing his first appeal. Since the grievance notice was served almost 7 months after the dismissal of the respondent's first appeal, the same was clearly time , barred.

3. The grievance petition itself also was time‑barred since it was filed more than 2 months after the service of the grievance notice. As already pointed out, the grievance notice was served on 14th December, 1978 while the grievance petition was filed on 3rd March, 1979. The respondent himself was fully aware that his grievance petition was belated. He accordingly filed an application for condonation of delay. The ground taken for condonation was his illness with effect from 26th February, 1979. No medical certificate was filed or other evidence led in support of this application except the respondent's own affidavit that he was under treatment with effect from 26th February, 1979. The learned labour Court has taken the view that because the appellant -Corporation has not denied this allegation, therefore, the respondent's plea regarding his illness is to be believed. I am afraid that the learned Labour Court has misconceived the legal position. Apart from the fact that it was for the respondent to establish that the delay in filing the application was beyond his control and he is required to explain each day's delay, it may be pointed that the appellant‑Corporation, in its objections to the application for condonation of delay, has objected to the condonation and put the respondent to strict proof to establish his illness, This the respondent has failed to prove as no additional evidence was led except the bare word of the respondent, which was not subjected to cross‑examination, that he was ill. I am, therefore, of the view that respondent failed to establish the ground of illness on which his condona tion application was founded.

4. Since the respondent's grievance notice upon the employer as also his grievance petition before the learned Labour Court are belated, the grievance petition was not maintainable. I would accordingly set aside the impugned order of the learned Labour Court and allow the appeal.

Appeal allowed.

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