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Appeal No. 17 of 1979, decided on 10th November, 1979. (a) Industrial dispute-

--Domestic enquiry. Accused not participating on grounds that inquiry would not be conducted impartially-Not giving any reasons for being dissatisfied with Enquiry Officer-Held, it does not lie in his mouth subsequently to say that he boycotted proceed ings for any valid reason.

--Ss. 25-A & 65-B read with Limitation Act (IX of 1908), S. 5 Limitation-Time-barred action provides valuable right to contes tant which cannot be taken away without any justification-Concession of con donation-Cannot be made available unless party submits application for this prayer implicitly explaining reasons for delay with prayer to condone same-Law of limitation to be applied strictly-No scope for automatic operation of a provision which affects right of opposite-party-Grievance notice and petition delayed by about 6 years-Delay due to seeking redress errone ously by way of civil suit till same dismissed on grounds of juris diction - No application or prayer for condonation of delay submitted-Labour Court dismissing grievance petition as time- barred Contention that Labour Court should have condoned period spent in uncalled for litigation under bona fide belief on advice of Advocate, in circumstances, rejected.

Islamic Republic of Pakistan v. The Settlement Commissioner Peshawar 1974 S C M R 394 and Lai Shah v. Muhammad Ishaq P L D 1977, Lah. 1058 ref.

Ejhar Ali v. Government of East Pakistan P L D 1979 S C 175 an( Adamjee Jute Mills v. Province of East Pakistan P L D 1959 S C (Pak.); 272 ref.

Jamil Khan Sherwani for Appellant.

Munawar Ahmad Mirza, A.-G. for Respondent.

Date of hearing:10th November, 1979.

The appellant is in the service of the Railway department since 1941 and after his option to be posted in Pakistan he continued to serve Pakistan Railways (the respondent herein) and was lastly posted at Sib as a Shunter when on 27th October, 1970 he is alleged to have misbehaved with a duty clerk. Later on he also absented himself from dut3 from 29th September, 1970 uptil 24th August, 1971, i. e. for more than a year, Mr. Jamil Khan Sherwani, Learned counsel for the appellant tried to explain that he never absented himself as alleged but proceeded on leave preparatory to retirement under the instruction of the A. P. O., Quetta But he has not placed before me any documentary evidence to substantiate his stand. Be that as it may, he was, next charge-sheeted on 24th January, 1971 on both counts; namely misconduct and wilful absence from duty. The charge-sheet was relied by him repudiating both the allegations, rather adamantly. The explanation having been found unsatisfactory, a second notice was served upon him on 20th May, 1971 by which he was also called upon to attend the inquiry which was fixed for 29th May, 1971. He replied to this notice as well vide a shore application, dated 26th May, 1971. It would not be out of interest to reproduce it below :-

"I am not prepared to sit into inquiry. The same may be giver to any other branch or, the Traffic Inspector so that the enquiry may be impartially conducted."

2. It is evident that he did not give any reasons in this application for being dissatisfied with the enquiry officer and obviously i does not lie in his mouth now to say that he boycotted the proceeding: for any valid reason. Anyhow, the enquiry continued and pursuant to a guilty finding, he was dismissed from service on 22nd August; 1971.

3. It is yet another surprising feature in the case that after issuing a legal notice to the respondent on 12th October, 1971. he filed e civil suit to assail the order of dismissal through an Advocate or 20th April, 1972, rather than making an application under Industrial Relations Ordinance, 1969 (hereinafter described as I.R.O. ) knowing it fully well that section 25-A of I. R. O. had appeared on the statute book on 13th April, 1972 replacing the remedy that was available earlier under section 34, I. R. O. read with S. O. 18 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, and filing of a civil suit was in these circumstances highly misconceived. Then he kept on defending civil Court's jurisdiction for as long as five years, until the suit was dismissed on 30th April, 1977. Thereafter on 7th March, 1978 he served the respondent with a notice as envisaged by section 25-A, I. R. O. assailing the order of his dismissal and ultimately filed application in the Labour Court on 4th April, 1978 which was dismissed on 30th May, 1979, vide order impugned in this appeal, on the ground of limitation.

4. Mr. Sherwani appearing for him contended that the Labour Court had overlooked the fact that the appellant had been litigating under bona fide belief that the civil Court was competent to take cognizance of the matter, as his advocate had made him believe so, therefore, the entire period wasted in uncalled for litigation should have been condoned. But he admits that no application for condonation of delay was submitted before the Labour Court. Mr. Munawar Mirza, appearing for the respondent, however, contended that such concession could not be made available to him unless he had submitted an application for this purpose implicitly explaining the reasons for this delay and a prayer to condone it. I find myself in agreement with Mr. Munawer. A time- barred action provides a valuable right to the contestant and it cannot be taken away without any justification. Further, the law of limitation is to be applied strictly and since in our system of laws there is no scope B for automatic operation of such a provision which effects the rights of the opposite parties, it is the bounden duty of the initiator of a delayed cause of action to expressly see the application of the law, meant to allow concessions in the cases which deserve it. It is further his duty to justify such concession in a reasonable and convincing fashion without which no Court will listen to him on that point. This view would find support from Islamic Republic of Pakistan v. The Settlement Commissioner, Peshawar (1974 S C M R 394) and Lai Shah v. Muhammad Ishaq (P L D 1977 Lah. 1058) wherein the principles that in belated actions it would not always be a valid ground to plead that delay had occasioned due to misconceived litigation in another court and that in the cases seeking condonation of delay an application under section 5 of Limitation Act, if it was available under a particular case, should be submitted duly supported by an affidavit explaining the reasons of delay. Accordingly unless such a course is adopted it would be futile to plead that the case deserved consideration with this angle which the subordinate Court had omitted to take into account. Recently in C. P. No. 69/79 decided by a bench of this High Court placing reliance upon the case of Ejhar Ali v. Government of East Pakistan (P L D 1979 S C 175) and Adamjee Pute Mills v. Province of East Pakistan (P L D 1959 S C (Pak.) 272) the importance of the application of the law of limitation was once again reiterated and it was held that whether or not such plea was taken it was duty of every court not only to notice this point in connection with the case before it, but if it was exercising jurisdiction as a superior Court, it should also, examine its application on the lower level also. I would not, as such subscribe to the stand taken by Mr. Sherwani that the law should have been applied by the Labour Court without the appellant's asking for it.

As a result of above discussion the appeal is dismissed. However, the parties are left to bear their own costs.

A. E.

Appeal dismissed.

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