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Appeals No. 20 to 115 of 1985, decided on 20th October, 1985.

---Ss. 25-A & 38(3)--Order of Labour Court passed without jurisdiction--Appeal against such order not hit by bar of limitation- Assumption of jurisdiction by Labour Court on grievance petition without fulfilling mandatory requirement of service of valid grievance notice, held, would amount to clinching a jurisdiction which law does not give to Labour Court--Order of Labour Court in such case would be void, being without jurisdiction--Bar of limitation, held, could not be pleaded in appeal against such void order though appeal was filed beyond prescribed limitation period and such order, would deserve to be ignored.

Hussain Bakhsh and others v. Settlement Commissioner and another P L D 1969 Lah. 1039; Syed Muhammad Aslam v. Mehdi Hussain and 2 others P L D 1970 Lah. 6; P L D 1948 P C 94; P L D 1958 S C 201; P L D 1964 S C 97; P L D 1971 S C 184 and P L D 1975 Kar. 719 rel.

Dr. Abdul Rehman Brahvi for Appellant.

Mir Aurang Zeb for Respondents.

Dates of hearing: 5th and 10th October, 1985.

This judgment will dispose of Labour Appeals No. 20 to 115 of 1985 as all the appeals involve the common question of facts and law.

The Mayor of the Municipal Corporation is aggrieved by the decision of the Presiding Officer Labour Court No. 1, Baluchistan, Quetta, dated 19-5-1985 whereby he has been ordered to "pay the over time dues for the last three years from 19-5-1985 at the permissible rates according to the Rules" to the respondents granting their application made by them individually under section 25-A of Industrial Relations Ordinance, 1969 (hereinafter referred to as the I . R.O.) .

2. The respondents were employed in the Municipal Corporation and were working at different Octroi posts as Peons, Junior Muharrirs and Senior Muharrirs. It was prayed that "the Mayor Municipal Corporation, Quetta may be directed to award the applicant with the previous over-time allowance with effect from the date of transfer of the applicant to the Octroi Branch till today and he further be directed to continue the payment of the over-time allowance in future." The oldest claim related to the year 1951 and the latest to May, 1984. The claim was based on the assertion that the respondent(s) had served the Municipal Corporation throughout the year without having any holiday, and have not availed any mandatory holiday even, for example on Friday, etc. It was alleged in para. 7 of the grievance application that the cause of action accrued to the applicants when the applicant was transferred to the Octroi Branch and then on the last date of the every month during the service of the applicant and also on various occasions when the applicants approached the respondent and served the appellant with a notice under section 25-A of the I.R.O.

3. The re-joinder filed on behalf of the appellant took certain legal objections and it was specifically urged that the applicants (respondents herein) had no cause of action or locus standi to file the application against the respondent (appellant herein) because over-time has never been granted to the employees working in the Octroi Branch. Thus, there is no right secured or guaranteed by or under any law for the time being in force. The nature of the duties of the employees working at Octroi posts is that they have to perform the duties of Octroi posts round the clock in shifts. The applicants have accepted these terms of service and have not performed over-times duties and thus are not entitled to any over-time allowance. It was also contended that the Labour Court had no jurisdiction to entertain the applications because the Municipal Corporation does not fall under the definition of Industry. The claim for the grant of over-time allowance with effect from the date as claimed was time-barred.

4. Before I consider the appeal on merits I have to dispose of an application filed on behalf of the appellant for condonation of delay. The learned counsel for the respondent has vehemently opposed the same and has contended that the appeal is barred by time. It has been submitted in the application filed for condonation of delay that the legal advisor of the Corporation had resigned and the new incumbent was not fully aware of the cases pending in the Labour Courts. He came to know of the cases on 25-5-1985 when the application for copies of the impugned judgments was made which was supplied on 17-7-1985 as such the appeals filed on 15-8-1985 are within time. From the perusal of the minutes recorded by the Presiding Officer it is established that the Advocate/Legal Advisor engaged by the Municipal Corporation has intimated to the Labour Court that he had resigned (order sheet, dated 20-2-1985 and 3-3-1985 refer). The learned counsel for the appellant Dr. Abdul Rehman Brahvi has filed an affidavit that he was handed over the files not earlier than 20-5-1985 and yet the learned Presiding Officer has mentioned that the representative of the respondent (the appellant herein) was present. The order sheet recorded on 16-5-1985 indicates that the counsel for Municipal Corporation was engaged, who has appeared is not indicated. No power is found on record. Mr. Abdul Rehman stated at the Bar that he was not present on any day previous to the 25-5-1985. It is not understood on what authority the counsel was allowed to appear and who was that Advocate. This does not reflect well on the proceedings. In these circumstances I am inclined to accept the version given by Dr. Abdul Rehman Brahvi and condone the delay. Even otherwise I find that the decision/order impugned in the appeals are void on account of being without jurisdiction for the reasons hereinafter mentioned and no bar of limitation can be urged (See Hussain Bakhsh others v. Settlement Commissioner and another, P L D 1969 Lah. 1039 and Syed Muhammad Asian v. Mehdi Hussain and 2 others P L D 1970 Lah. 6 and it is never too late to set aside an order which has been passed without jurisdiction and the Courts are bound to ignore such order as nullity in law. P L D 1948 P C 94, PLD 1958 S' C 201, P L D 1964 S C 97 and P L D 1971 S C 184 may be referred.

5. The relevant provision under which the individual grievance application was made is section 25-A (1) I.R.O. 1969 and the same reads: --

"25-A. Redress of individual grievances.-- (1) A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his shop Steward or (Collective Bargaining Agent) within three months of the day on which the cause of such grievance arises."

The section essentially contemplates the rights guaranteed or secured to a worker by any law or any award or a settlement. In the present case nothing has been brought on record to establish that the right claimed as over-time is at all guaranteed to the respondents either in terms of their appointment letter or any statutory rule governing the terms and conditions of the employees of the Municipal Corporation of the Octroi Branch. The grievance notice contemplated under section 25-A (1) I.R.O. is mandatory and is to be considered for the purpose of limitation. This notice to the employer is a pre-condition and must be served on the employer within three months of the grievance. It was pointed out in Engineering Works Karachi v. IInd Labour Court PLD 1975 Kar. 719 that worker is bound to give all particulars and fulfil conditions precedent for presentation of application. If that was not done the Labour Courts clinched a jurisdiction which the law did not give them and the orders passed by them, were not in the exercise B of lawful authority and, therefore, of no legal effect. The respondent(s) did not say a word in the statement recorded by the Labour Court about the service of notice. The learned counsel for the respondents has referred to a Cyclostyled copy of a notice annexed to the applications but that is undated and has not been proved and exhibited. Thus, it is not a part of the record. Even this so-called notice does not furnish the particulars. The notice and the application under section 25-A, I.R.O. was definitely vague as the particulars were not furnished. Mr. Aurang Zeb, the counsel for the respondents has submitted that the refusal of the over-time is a continuing cause of action so in every month cause of action arose to the respondents and thus the grievance notice and the grievance petitions are not barred by time. In the present cases the claim was not conceded to. Thus, at the best the respondents had a cause of action on the date of the refusal and the grievance notice, even if, served beyond three months became time barred. As pointed out above the provisions of section 25-A(1), I.R.O., 1969 are mandatory and no grievance petition is competent without the service of a valid notice within time. For a valid notice it is necessary that the relief should have been specified and the particulars thereof furnished in the notice as well as in the application under section 25-A I.R.O., as it was individual claim being made by the respondents. Whether the claimants actually worked during the three months prior to the service of notice was not established. No record has been produced to prove the assertion of the respondent on the basis of which the claim was being based. The respondents were put on the alert by the specific objections raised in the written reply. It is significant that the respondents did not disclose the dates and the hours of over-time, in their depositions before the Labour Court. The basis for the claim was the performance of duty on holidays which fact has not been established on record and no evidence in that behalf has been brought on record. The orders of the Presiding Officer Labour Court impugned in these appeals are thus of no legal effect and deserve to be ignored.

No other contention is required to be considered. I accordingly accept all these appeals and set aside the impugned decisions of the Labour Court and dismiss the grievance petitions filed by the respondents. The parties shall bear their own costs.

A.E. Appeal allowed.

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