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Appeal No. KAR‑188 of 1984, decided on 8th July, 1985.

‑‑S. 25‑A‑‑Limitation Act (IX of 1908), S. 14‑‑Grievance petition‑ Exclusion of time for filing of such petition‑‑Provisions of S. 14, Limitation Act, 1908, held, are applicable in respect of proceedings pertaining to cases filed under Industrial Relations Ordinance, 1969‑ Ordinance XXIII of 1969 does not exclude applicability of S. 14, Limitation Act, 1908‑‑For computing period of limitation prescribed for moving grievance petition, period spent in other Court having no jurisdiction in respect of same cause of action was to be excluded‑‑Such would not be case for condonation of delay but would be for exclusion of time spent seeking remedy in wrong Court which, was not time‑barred in circumstances.

P L D 1961 (W.P.) Kar. 656; A I R 1951 Hyd. 57; A I R 1963 Pat. 407; AIR 1956 Madh. Bha‑. 97; A I R 1933 Lah. 591 and AIR 1950 Assam 83 ref.

‑‑‑S. 25‑A‑‑Grievance petition against dismissal for misconduct‑‑Evidence of witnesses having gone unchallenged and un rebutted in domestic enquiry, conclusion of Labour Court that misbehaviour of employee was not proved, held, Labour Appellate Tribunal has no reasons to differ from such legal observations bf Labour Court‑‑Appeal dismissed in circumstances and back benefits already deposited by employer in Tribunal were ordered to be paid to employee.

Abdul Hafeez for Appellants. Ali Amjad for Respondent. Date of hearing: 10^th February, 1985.

DECISION .

The instant appeal is directed against the order, dated 5‑8‑1984 by IInd Sind Labour Court at Karachi. The said Labour Court has accepted the grievance petition of the respondent filed under section 25‑A, I.R.O. 1969.

2. The facts are that Jalal Khan was an employee of the appellants and was working as an Operator in the appellants' factory. He was a member of the Managing Committee of the C. B. A. Union and a dispute existed between the C. B. A. Union and the respondent's union with regard to the reduction, of workers' force employed in the Surf Department and since the respondent opposed the same and did not agree to the intention of the appellants, he was given a show‑cause notice and after a domestic enquiry alleging misconduct he was dismissed. The respondent served a grievance notice on 30‑3‑1982, which was replied by the appellants vide their letter, dated 12‑4‑1982.

3. The stand taken by the appellants in their reply statement is that the grievance petition is not maintainable for it is time‑barred and secondly that the plea of victimization and dismissal could not be agitated in a grievance petition. They admitted the employment of the respondent as an operator, and his dismissal from the service. The rest of the allegations of the grievance petition were denied by the appellants.

4. In the Labour Court the respondent filed his affidavit which was cross‑examined. The appellants filed the affidavit of Javed Shaukat Malik. He was also cross‑examined.

5. I have heard the learned counsel Mr. Abdul Hafeez for the appellants and Mr. Ali Amjad on behalf of the respondent in this appeal.

6. The main question is that the grievance petition was time‑barred because it was presented to the Court having jurisdiction much later than is contemplated in section 25‑A, I.R.O., 1969. This point was dealt with by the Labour Court himself and he held that it was within time as section 14 of the Limitation Act apply to the instant case. The grievance petition was initially filed before the IIIrd Labour Court at Karachi which had no jurisdiction and the matter was referred to the Tribunal who passed an order on 23‑9‑1982 ordering that the matter be returned to the respondent who may file the petition in the proper Labour Court, namely, the IInd Labour Court. The proceedings were returned and filed in the IInd Labour Court on 16‑10‑1982. The intervening period is said to be hit by the limitation as the period contemplated under section 25‑A, is under subsection (4) of section 25‑A, I.R.O., 1969. The instant petition was filed after two months which was in time before the IIIrd Labour Court. It was returned and filed on 16‑10‑1982 before the IInd Labour Court. Therefore, the time which is taken in between the order of the Tribunal and the return of the petition and filing of the same in the IInd Labour Court is more than the limitation petition. It is, therefore, argued that the point of limitation hits the petition. ,

7. The learned counsel for the respondent has referred me to section 14 of the Limitation Act, 1908, which reads as under:‑‑

"14. (1) Exclusion of time of proceeding bona fide in Court without jurisdiction. In computing the period of limitation, prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence, another civil proceeding, whether in a Court of first instance or in a Court of Appeal against the defendant shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.

(2) In computing the period of limitation prescribed for any application, the time during which the applicant has beer prosecuting with due diligence another civil proceedings, whether in a Court of First instance or in a Court of Appeal, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of alike nature, is unable to entertain it."

8. The provisions of section 14 of Limitation Act are applicable in respect of the proceedings pertaining to the cases filed under the provisions of Industrial Relations Ordinance and it is particularly so because the Industrial Relations Ordinance, 1969, does not expressly exclude the application of section 14 of the Limitation Act. In the terms of section 14 of the said Limitation Act while computing the period of limitation prescribed for moving a petition under section 25‑A, I.R.O. 1969, the period during which the petitioner of the instant case has been prosecuting in the IInd Sind Labour Court in respect of the same cause of action against the appellants is to be excluded. It would not be a case of condonation of delay under section 5 of the Limitation Act but is for the exclusion of the time under section 14 of the Limitation Act, hence no application by the respondent is needed for exclusion of the time in question. The authority referred to in P L D 1961 (W.P.) Kar. 656 is not applicable. The learned counsel, Mr. Hafeez has referred me to certain authorities which are again distinguishable and do not apply. Mr. Ali Amjad placed before me several Indian authorities, namely, A I R 1951 Hyd. 57. It contains the following observations:‑‑

"Where a plaint is returned, the endorsement of the dates of presentation are imperative under the law. This endorsement is part of Court's duty; therefore, until the endorsement is made, the proceedings cannot be said to have come to an end. Where, therefore, there has been a delay on the part of the Court in making the endorsement as required by the Civil Procedure Code, he is entitled to an exclusion of the period till the date the actual endorsement was made."

9. Mr. Ali Amjad further referred to an Authority, namely A I R 1963 Pat. 407; A I R 1956 Madh. Bhat. 97; A I R 1933 Lah. 591 and A I R 1950 Assam 83. In the Authority, namely, A I R 1950 Assam 83, the following is relevant:‑‑

"No formal application under section 5 Limitation Act is necessary as the appeal was originally filed in the Calcutta High Court and the appellant was undoubtedly misled by the judgment of practice by that Court in the pleading the appeal for filing such presentation is within time."

10. Thus, after referring to the authorities produced by the appellants' side and the authorities produced by the respondent's side, I have come to the conclusion that section 14 of the Limitation Act is applicable and the petition is not time‑barred.

11. The next point involved is of the misconduct of the respondent. The Labour Court No. II has doubted the evidence on record and has come to the conclusion that it is a case more of victimization than of actual misbehaviour of respondent. I would like to quote the following extract from the order of the Labour Court:‑‑

"A perusal of the statements of above two witnesses reveals that they have deposed contradictory facts and are not consisted on material points. There are also material omission in their evidence. Complainant Sartaj Ahmed Rana did not mention the abusive language allegedly used by the applicant at the time when he was asked to operate the machine, whereas G.M. Khan in his evidence specifically pointed out the abusive words which were used by the applicant. Thus it will be seen that the evidence of above two witnesses examined by the respondents is not consistent and they do not corroborate each other."

12. In this respect the evidence of defence witnesses Azharuddin, Abdul Aziz and Hyder are referred by the Labour Court and their evidence is found to be consistant with the version of the incident and have corroborated each other. The evidence of the defence witnesses has gone un‑challenged and un‑rebutted in the domestic enquiry. Thus, the Labour Court has concluded that misbehaviour of the respondent is not proved. I have no reason to differ from the observations of the Labour Court.

13. I find that this appeal has no force and the order of the Labour Court is maintained and the appeal is accordingly dismissed. The back benefits deposited by the appellants in this Tribunal be paid to the respondent.

A.A.

Appeal dismissed.

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