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Appeal No.FD‑219 of 1986, decided on 22nd June, 1986.

‑‑‑S. 25‑A‑‑Limitation Act (IX of 1908), S. 14‑‑Grievance petition, withdrawal of‑‑Subsequent grievance petition filed‑‑Time spent during trial of previous petition, exclusion of‑‑In case where S. 14 Limitation Act is applicable no question of condonation of delay, held, would arise but rather total period spent in previous litigation would be excluded.

‑‑‑Ss. 25‑A & 38(3)‑‑Date of institution of previous petition not given in subsequent petition‑‑Such date also not stated in written statement‑‑In absence of proper material, held, it could not be determined whether fresh petition was within timer exclusion of period spent in previous grievance petition‑‑Case being of further enquiry was remanded to Labour Court with direction that after allowing opportunity to both parties, such Court should decide whether after excluding time spent in pursuing previous grievance petition, fresh petition was within time or not.

Munawar Ahmad Javaid for Appellant.

H.R. Haider and Shamim Ahmad for Respondents.

Date of hearing: 21st June, 1986.

The titled appeal calls in question the decision, dated 10‑3‑1986, passed by the learned Court No.4, Faisalabad whereby the grievance petition of the appellant has been dismissed on the point of limitation deciding the case on merits in his favour.

2. The appellant was taken in service as Cone Winder on 28‑11‑1982 and his services were terminated as no longer required vide order dated 11‑4‑1983. The appellant had withdrawn his previous grievance petition on 18‑6‑1985 with permission to bring a fresh one and brought the fresh petition on 3‑7‑1985 with an application for condo nation of delay under sections 5 and 14 of the Limitation Act. The learned lower Court has held that there being no explanation for the time which elapsed between the withdrawal of the grievance petition and bringing of the fresh one there was no ground to condone the delay. An unreported ruling of this tribunal delivered in the case Fazal Din v. Director Administration F. D. A decided on 11‑2‑1986 was also cited before the learned lower Court but preference was given to a Dacca ruling wherein it has been held that where a suit had been withdrawn with or without the permission of the Court section 14 of the Limitation Act was not applicable and the previous suit will be deemed to have never been instituted. I have already held in the case which was cited before the learned lower Court and in many other cases that Labour cases are quite different in nature from the civil suits. Where a civil suit has been withdrawn with or without permission of the Court for any formal defect the fault is of the plaintiff in not bringing the suit properly but in the present case law was interpreted by the Lahore High Court holding that grievance petition can be properly presented by the workers themselves and not by the lawyers. Before this interpretation was made by the Lahore High Court the grievance petitions presented by the lawyers were entertained and adjudicated. As soon as the appellant came to know about the ruling of the High Court he to save the time of the Court and other party did not insist on pursuing his previous petition and made a prayer for withdrawal to bring a fresh grievance petition and presented the same legally. It would be strange to say if the Court had dismissed the previous grievance petition for improper presentation section 14 would be attracted but if it is withdrawn with permission to bring fresh order section 14 would not be attracted. Even if the petition had not been withdrawn the result would have been the same. So, the appellant did not commit any mistake in asking for withdrawal of his previous grievance petition with permission to file a fresh one Dacca ruling emerged from different facts and the learned lower Court failed to consider that it was distinguishable from the facts of the present case. There was no mala fide on the part of the appellant in not presenting the previous grievance petition himself. He did not know the legal implications, therefore, he allowed his counsel to present the petition. He exercised due diligence by‑withdrawing the petition as soon as he realised that according to the ruling of the High Court the presentation of the previous grievance petition was not proper. The learned lower Court had no jurisdiction to adjudicate upon the previous grievance petition on account of the fact that its presentation was not proper and this is the reason given in section 14. Since the ingredients of section 14 are contained in the case, and the learned lower Court erred is not excluding the period spent during the trial of the previous petition In cases where section 14 applies no question of condonation of delay arises but rather the total period spent in the previous litigation is to be excluded. Of course if the appellant had exhausted the whole period of limitation and had brought the previous petition on the last day of the limitation or few days before that he could bring fresh petition within so much period which was left and if the fresh petition was brought beyond the said period only then he was required to satisfy the Court that there was reasonable ground for the condonation of the delay. This is urged in fresh grievance petition that the grievance notice was served by the appellant on 28‑4‑1983 and its reply was received on 1‑6‑1983. However, the date of the institution of the previous petition is not known as it is neither given in the fresh grievance petition nor in the written statement. It, therefore, cannot be said how many days were at the disposal of the appellant for brining the fresh grievance petition in time. Since neither the parties nor the learned lower Court consider this aspect of the case, therefore, proper material could not come on the record and it cannot be finally said whether the fresh petition was within time after the exclusive the period spent in the previous grievance petition. The case, therefore needs further enquiry.

3. As a result of the observations made above, the finding of the learned lower Court on the point that the fresh petition was time barred is set aside and the, case is remanded with the direction that after allowing opportunity to both the parties it be decided excluding the total period spent in pursuing the previous grievance petition, the fresh petition was brought within time or not.

A. A.

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