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Appeal No. BR-656 of 1980/Pb., decided on 22nd February, 1983 Appeal

(a) Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 25-A & 37-Grievance notice to employer-Limitation Provisions mandatory-Limitation period does not stop till expiry if once starts-Suspension of operation of impugned order by interlocutory stay order by Court-Does not stop running limitation period-Order of Labour Court setting aside dismissal order for technical reasons challenged in appeal before Appellate Tribunal- During pendency of such appeal second dismissal order passed after holding fresh inquiry-Operation of second dismissal stayed by Appellate Tribunal-Grievance notice served after vacation of such interlocutory stay order-Contention that period during which operation of impugned second dismissal order remained suspended under stay order of Appellate Tribunal should be deducted from limitation for purposes of grievance notice, in circumstances, rejected.

(b) Industrial Relations Ordinance (XXIII of 1969)----

----S. 25-A-Grievance petition against dismissal from service -Impugned dismissal order set aside by Labour Court either for reason that no domestic enquiry held or domestic enquiry was illegal-Employer, in circumstances, held, at liberty to hold fresh enquiry in case of .serious misconduct after re-instatement of workman and passing fresh punishment order on basis of result of fresh enquiry.

1962 P L C 362 rel.

Saleem Baig for Appellant.

Muhammad 1kram and Syed Mukhtar Shah for Respondents.

Date of hearing : 15th February, 1983.

The appeal captioned above emanates from the decision dated 19th August, 1980 passed by the learned Presiding Officer, Punjab Labour Court No. 8, Bahawalpur, whereby the respondents were directed to be rein stated in service with back benefits from the date of the second dismissal orders.

2. The allegations against the respondents and their co-workers totalling ninety were that they instigated other workers to go, and themselves also went, on illegal strike. They were charge-sheeted on 19th January, 1976. Duplicates of charge-sheets were got published in the newspaper also. After holding an enquiry they were dismissed from service on 11th February, 1976. They challenged the order of dismissal in the grievance petition which was accepted on 12th January, 1978 and they were directed to be reinstated in service without back benefits. Both the parties preferred appeals from the decision of the learned lower Courts. The appeal of the appellant was against the order of reinstatement of the respondents and the respondents in their appeal claimed back, benefits. The appellant got the operation of the previous impugned order suspended on 23rd January, 1978 vide order copy Exh. P-1.. In the pendency of the appeals, the appellant held fresh enquiry and the respondents were again dismissed on 14th February, 1978. The respondents instead of serving grievance notice and bringing grievance petition made a miscellaneous application in their appeal pending in this Tribunal and prayed for the suspension of the second dismissal order till the decision of the said appeal. Stay order prayed for was issued on 25th February, 1978 and confirmed the same on 16th March, 1978. The said appeal was accepted granting back benefits with regard to the previous dismissal and thus the stay order granted in that appeal and confirmed on 16th March, 1978 came to an end on 10th March, 1979 with the decision of the appeal. The appeal of the appellant challenging the order of previous reinstatement was dismissed on the said date i. e. 10th March, 1979 for the reason that on account of again dismissing the respondents on the same allegation. They had become infructuous. Thereafter, the respondents brought a contempt petition on 5th April, 1979 with the prayer that a direction be issued to the appellant not to prevent them from entering the factory and discharging the duties and to pay them the future monthly wages. Interim order was passed on 9th Aril, 1979 issuing the above-mentioned direction. However, the said order was suspended by the High Court in a writ on 14th September, 1979. The second contempt petition was lodged after a few days, but no stay order was issued in it. It was dismissed on 4th August, 1979. On 12th August, 1979 grievance notice was issued which was following by the lodging of the grievance petition against the second order of dismissal from the decision of which the present appeal arises.

3. It has been argued by the learned counsel for the appellant that the grievance notice and the grievance petition against the second dismissal were time-barred. The grievance notice is time-barred by about 18 months. Learned counsel for the respondents has argued that since the second order of dismissal was suspended by this tribunal on 25th February, 1978 which was confirmed on 16th March, 1978 and that as after the termination of second suspension order again stay order was issued on 9th April, 1979, therefore, during that period the respondent had no need to give grievance notice. He says that on these grounds the respondents were entitled to condonation of delay. This argument is fallacious. Only the operation of the dismissal order was suspended but the dismissal order was alive, therefore, the period of limitation for giving grievance notice did not stop. If the dismissal order had been set aside, of course there would have been no necessity of challenging it. The learned counsel says that the respondents and their counsel was misled by the suspension order and the observations made by this tribunal that the dismissal order was invalid, therefore, they did not give grievance notice within time. No doubt my learned predecessor did make such observations but they were not final having been made in an interlocutory order in the stay application given in the appeal pending against the previous dismis sal and reinstatement. The period of limitation when once starts it does not stop till it expires. While computing the period some time may be excluded such as the period spent in getting copies of the orders as there is a provision in law of limitation for it, whereas there is no provision that if the operation of an order sought to be challenged is suspended, the period for which it remained suspended is to be deducted from the total period of limitation prescribed by law. The other thing is that even if for the sake of arguments the said period is excluded still the grievance notice remains time-barred. The stay order, issued by this Tribunal in the previous appeal carne to an end with the decision of the said appeal on 10th March, 1979. The period of limitation, therefore, started running again from the said date. Second stay order was granted on 9th April, 1979, which came to an end on 14th September, 1979. Learned counsel for the respondent says that the respondents had no notice of its suspension. The very contempt petition in which the stay order had been issued on 9th April, 1979 was dismissed in default on 13th May, 1979, so the remaining period of limitation which had stopped on 9th April, .1979 restarted running from 13th May, 1979, but the grievance notice was issued on 12th August, 1979. It may have been received on 13th August, 1979 being local. Even if the period of limitation is counted from 13th May, 1979, the three months became complete on 10th August, 1979. So the notice was time. barred by three days. If the intervening period during which the period of limitation had restarted running is counted, then the grievance notice is time-barred, by fourty-four days. If the view is taken that the suspension of the dismissal order had no effect, then the grievance notice was time-barred by about 18 months. So whatever view is taken, the grievance notice is time-barred. Since no satisfactory explanation was advanced, the learned lower Court wrongly condoned the delay. The provisions of section 25-A are mandatory. Since the grievance notice was hopelessly time-barred, the petition was incompetent.

4. The other point raised by the learned counsel for the appellant is that the learned lower Court is wrong in holding that since no permission was given, re-enquiry could not be made. The question is plain. In cases where either no enquiry has been made due to bona fide mistake or it has been held but it was quite illegal and only for that reason the workman has been reinstated, the employer is at liberty to hold enquiry in cases of serious misconduct, after reinstating the workman and to award punishment, if the employee in the enquiry has been found guilty of the charges. 1962 P L C 362 may be cited with great advantage. Learned counsel for the respondent has not been able to cite any authority in support of his arguments that without permission from the Court, re-enquiry cannot be held.

5. As a result of the observations made above, I accept the appeal and setting aside the impugned decision of the learned lower Court, dismiss the grievance petition of the respondents and restore the order of their dismissal.

A. E. Appeal dismissed.

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