Find a Lawyer

Appeal No. LHR-386 of 1982/Pb., decided on 10th August, 1983.

(a) Limitation Act (IX of 1908)----

----S. 14-Limitation-Exclusion of period during which remedy pursued in wrong forum-Proceedings should have been prosecuted in good faith till decision-No requirement of law-Proceedings may be withdrawn on account of lack of jurisdiction or if not withdrawn,, and remedy sought in right forum during pendency of proceedings before wrong forum-Period up-to-date of start of proceedings in right forum can be excluded-Remedy against alleged wrongful termination of service sought by civil suit before Civil Court . Without withdrawing civil suit grievance notice served upon employer and then grievance petition filed before Labour Court -Contention that S. 14 not applicable because whole period spent in wrong forum from date of institution of proceedings till date of decision by said wrong forum was to be excluded and in instant case civil suit was yet pending-Contention rejected-Period up-to-date of starting proceedings under S. 25-A of Industrial Relations Ordinance, 1969, in circumstances, held, to be excluded-- Limitation-Grievance petition-Industrial Relations Ordinance (XXIII of 1969), S. 25-A.

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

---- Ss. 25-A & 65-B read with Limitation Act (IX of 1908),, S. 14 Grievance petition before Labour Court-Limitation-Period spent in wrong forum-Whether to be excluded and whether S. 14 of . Limitation Act, 1908 applicable-[1981 P L C 516 dissented from]. Remedy against termination of service was sought by civil suit prior to fling grievance petition before Labour Court. Question before Labour Appellate Tribunal was whether section 14 of Limitation Act, 1908 provid ing for exclusion of period spent in wrong forum was applicable. Contention was that section 29 of Limitation Act, 1908 was not helpful in the case.

Held: No doubt, in section 65-B of Industrial Relations Ordinance, 1969, section 14 of Limitation Act, 1908 is not included but it was not necessary. Section 14 does not say that it applies if any special law makes it appli cable. Section 5 says that it will apply to. applications if it has been made applicable by or under any enactment. So section 5 would not apply where it has not been made applicable. On account of this provision of section 5, the necessity was felt to make a provision in section 65-B of the Industrial Relations Ordinance, 1969 but section 14 would apply without being made applicable. Apart from it by virtue of section 29 of the Limitation Act, section 14 applies to labour cases. The contention is that the period of limitation provided by the first schedule should be different from the one prescribed by a special law. Section 25-A of the Industrial Relations Ordinance, 1969 (a special law) provides a period of 22 months for the service of grievance notice in case, where reply to the notice is not sent by the employer and two months from the date of receipt of reply to the grievance notice, but Article 181 of the Limitation Act, which is residuary section, provides a period of three years. So the period of limitation prescribed by the Limitation Act is different from the one prescribed by the special law (Industrial Relations Ordinance, 1969) and the condition given in section 29 stands fulfilled. So there is no force in the argument that section 29 is not helpful. He has also argued that civil suit was not conducted in good faith after Jamshed had told the appellant on 15th October, 1980 that the Labour Court had granted to him relief in the like case. He relied upon P L D 1961 Kar. 612. The suit was premature as it was brought before the expiry of the period of notice under section 80, C. P. C.

P L D 1976 Lah. 1330 rel.

P L D 1961 Kar. 612 distinguished.

1981 P L C 516 dissented from.

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

---- Ss. 25-A & 37 read with Limitation Act (IX of 1908), S. 14-Grievance petition before Labour Court-Limitation-Exclusion of period spent in good faith in wrong forum-Bank Officer seeking remedy against dismissal from service by way of civil suit before civil Court and during pendency of civil suit filing grievance peti tion before Labour Court-Application for condonation of delay under section14 of Limitation Act, 1908 made after case argued and adjourned for order by Labour Court - Labour Court dismissing grievance petition solely on grounds of limitation -- Bank Officer whether or not a workman and within jurisdiction of Labour Court a complicated question of law depending on circumstances of each case and duties which vary from Bank to, Bank and even in same Bank with regard to categories of Officers-,Petitioner in circum stances, held, not at fault in going to civil Court and application under S. 14 of Limitation Act, 1908, held, rightly made-Order of Labour Court, 'in circumstances, set aside by Appellate Tribunal and case remanded with direction to exclude period spent in civil Court from date of institution of civil suit to date of filing grievance petition-[1977 P L C 617 and 1977 P L C 623 held not applicable].

1977 P L C 617 and 1977 P L C 623 hold not applicable.

1980 P L C 1151 distinguished.

M. Zaman Qureshi for Appellant.

Sair Ali for Respondent.

Date of hearing : 9th July, 1983.

The facts giving rise to this appeal are that the appellant, who was class-1 Officer, was dismissed on 27th November, 1979: The appellant instead of challenging the order in the Labour Court, brought a civil suit on 5th December, 1979 and moved an application for interim stay. Injunction was refused on 18th May, 1980. The order was challenged before the learned District Judge but the appeal failed on 20th September, 1980. Without withdrawing the suit appellant served the respondent with a grievance notice on 28th December, 1980 which was followed by the grievance petition on 17th January, 1981, from the dismissal of which the present appeal arises. Alongwith the grievance petition no application under section 5 of the Limitation Act was given. After the case ,was argued and was adjourned on several dates for orders, an application under section 14 of the Limitation Act was given on 5th May, 1981 but no application under section 5 of the Limitation Act was lodged. The grievance petition has been dismissed solely on the ground of limitation.

2. It has been argued by the learned counsel for the appellant that since remedy was sought by mistake before a wrong forum, section 5 was not attracted, therefore, application under section 14 of the Limitation Act was rightly given. He says that the total period from the date of lodging of the civil suit to the date of bringing the petition under section 25-A, is to be excluded and no question of condonation of delay arises. He seeks supports from P L D 1976 Lab. 1330, Division Bench ruling. It has been held that there is no necessity of any provision in the Income. Tax Act for the application of section 14, Limitation Act and that the whole period spent in a wrong forum is to be excluded. It has been argued by the learned counsel for the respondent that section 14 is not applicable, because the whole period spent in a wrong forum from the date of the institution of an action upto the date of the decision by the said forum is to be excluded while computing the period of limitation, whereas in the present case the civil suit is still pending, and it has not been decided o the ground that the Court lacks jurisdiction. In the main section 14, it is not stated that the proceedings should have been prosecuted in good faith till the decision of the case. The said case may be withdrawn o account of lack of jurisdiction. If it is not withdrawn and it remains pending and the remedy is sought in the right forum also the period upto the date the proceedings are started in the right forum can be excluded. No doubt, in section 65-B, section i4 is not included but it was not necessary. Section 14 does not say that it applies if any special law make it applicable. Section 5 says that it will apply to applications if it has been made applicable by or under any enactment. So section 5 would not apply where it has not been made applicable. On account of this provision of section 5, the necessity was felt to make a provision in section 65-B of the Industrial Relations Ordinance, 1969 but section 14 would apply without being made applicable. Apart from it by virtue of sec tion 29 of the Limitation Act, section 14 applies to labour cases. The contention is that the period of limitation provided by the first schedule should be different from the one prescribed by a special law. Section 25-A of the Industrial Relations Ordinance, 1969 (a special law) provides period of 2J months for the service of grievance notice in case, where reply to the notice is not sent by the employer and two months from the date of receipt of reply to the grievance notice, but Article 181 of the Limitation Act, which is residuary -section, provides a period of three years. So the period of limitation prescribed by the Limitation Act i different from the one prescribed by the special law (Industrial Relation Ordinance, 1969) and the condition given in section 29 stands fulfilled. So there is no force in the argument of the learned counsel for the respondent that section 29 is not helpful. He has also argued that civil suit was not conducted in good faith after Jamshed had told the appellant on 15th October, 1980 that the Labour Court had granted to him relief in the like case. He relied upon P L D 1961 Kar. 612. The suit was premature as it was brought before the expiry of the period of notice under section 80, C. P. C. The authority i distinguishable because even if it be said that the suit was not in good faith conducted after 15th October, 1980, the grievance notice and the grievance petition are within time from 15th October, 1980.

3. Learned counsel for the respondent has cited 1981 P L C 516 in support of his argument that section 14 of the Limitation Act is not applicable but in view of the Division Bench authority of Lahore High Court (P L D 1976 Lab. 1330) the Sind Labour Appellate Tribunal's ruling cannot be followed. Moreover, the grounds given by me for the view that section 14 of the Limitation Act applies were not discussed in 1981 P L C 516. It has also been argued that since the relief claimed in the suit is not the same as claimed in section 25-A petition, section 14 of the Limita tion Act does not apply. This is factually wrong. Exh. P. 6, copy of the plaint shows that the suit was not for damage but the dismissal order was challenged seeking declaration- to that effect with permanent injunction from preventing the respondent from interfering in his discharge of duties. So, this argument too has no force.

4. The next point raised by the learned counsel for the respondent is that the application under section 14 was delayed as it was given after the case had been argued and adjourned for orders. He relies upon 1977 P L C 617 and 1977 P L C 623. In these rulings firstly no question of applicability of section 14 was involved and secondly the petition under section 5 was given at a very belated stage before the tribunal in appeal, whereas in the present case it was given before the trial Court although after the arguments bad been advanced. The rulings, therefore, are not helpful. The last ruling cited by the learned counsel in this respect is 1980 P L C 1151. This authority is distinguishable. The claim was lodged before the Authority under the Payment of Wages Act initially and in spite of the objection of the other party the workers insisted that the Authority had jurisdiction. The Authority dismissed the claim for want of jurisdic tion. Needless to say that according to section 15 of the Payment of Wages Act, the Authority has jurisdiction in the matter of deducted and delayed wages, which is not a complicated question of law, whereas the question whether an officer of a bank is or is not a workman, depend upon the circumstances of each case and the duties assigned to the officer. Duties of officers employees of different banks are not germane but vary D from bank to bank and even in the same bank with regard to different categories of officers. The appellant was, therefore, not at any fault in going to the civil Court. Section 14 applies.

5. As a result of the discussion made above, I accept the appeal and setting aside the impugned decision of the learned lower Court, direct the exclusion of the period spent in the civil Court from the date of ah E institution of the suit to the date the petition was brought in the learned lower Court and hold that the petition is within time. The case is remanded for decision on merits and the remaining points in controversy between the parties.

A. E. Appeal accepted,

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.