2020 P L C 82
[Balochistan High Court]
Before Jamal Khan Mandokhail, CJ and Abdullah Baloch, J
NATIONAL CONSTRUCTION LIMITED, through Authorized Officer and others
Versus
NATIONAL INDUSTRIAL RELATIONS COMMISSION and others
Constitutional Petitions Nos. 889 to 931 of 2018, decided on 25th November, 2019.
(a) Industrial Relations Act (X of 2012) ---
----Ss. 33 & 58--- Constitution of Pakistan, Art. 199 ---Constitutional petition ---Condonation
of delay---Termination of service ---Payment of arre ars--- Concurrent findings by two forums
below ---Petitioner company terminated services of its employees and failed to reimburse
arrears ---Petitioner company sought condonation of delay on grounds that forums below
proceeded ex -parte without affording it a n opportunity--- Validity ---Provisions of S. 58 of
Industrial Relations Act, 2012 were very clear that an aggrieved party from an order of
Bench of Industrial Relations Commission could within 30 days of such decision prefer an appeal before appellate autho rity---Appeal before appellate authority was filed after
inordinate delay of 22 days ---High Court declined to interfere in orders passed by two
forums below as there was no illegality or irregularity--- Petitioner had not only adopted
irresponsive attitude before Bench of Industrial Relations Commission but same was
continued whilst filing appeals before appellate forum by filing appeals after delay of 22 days and that too without any plausible explanation--- Petitioner was not vigilant in defending
and asserting its rights and as such let period of limitation expire before approaching appellate forum ---Delays were not explained in even a remotely convincing manner ---High
Court observed that delay defeated equity, time and tide waited for none and law helped vigilant not indolent--- Object of law of limitation was to help vigilant and not indolent---
Helping hand could not be extended to a litigant on having become forgetful of his rights ---
Constitutional petition was dismissed in circumstances.
Naik Muhammad v. Muhammad Shabbir and others 2019 CLC 164 rel.
(b) Limitation ---
----Accrual of right ---Principle ---When right cannot be enforced because of limitation, same
would vest/accrue in favour of opposite party--- Where matter is barred by time Court cannot
go into merits of controversy between parties.
Independent Media Corporation (Pvt.) Ltd. through Chief Executive and others v.
Raja Tariq Mehmood and others 2018 PLC Note 29 rel.
Abdullah Kakar for Petitioner.
Date of hearing: 20th November, 2019.
JUDGMENT
ABDULLAH BALOCH, J. ----This commission judgment disposes of above titled
(43) Constitutional Petitions filed by the petitioner i.e. National Construction Limited
("employer") against the order dated 20th April 2018 passed by learned National Indu strial
Relations Commission, Quetta Bench, Quetta ("NIRC Quetta Bench"), whereby the petitions filed by the employees of petitioner (employees) under Section 33 of Industrial Relations Act, 2012 ("IRA, 2012") were allowed; and against the order dated 17th June, 2019 passed by National Industrial Relations Commission Islamabad Full Bench at Karachi ("Full Bench
of NIRC"), whereby appeals filed by the petitioner (employer) under Section 58 of IRA,
2012, were dismissed.
2. Facts of the case are that initially the respondent No.4 in all the petitions (employees)
have filed petitions under Section 33 of IRA, 2012 before the NIRC Quetta Bench with the
averments that they were appointed in the petitioner's company on different positions and on different dates, wher eafter they served the petitioner's Company in accordance with law. It is
further averred in the petitions that on 22nd June 2015, they received a letter dated 11th June
2015 issued by General Manager (West) National Construction Company Ltd. Islamabad
("NCL") to the effect that the NCL, is facing acute disagreement with the clients at Quetta
and thus the work has been suspended from the last one year and the payment has been stopped by the clients, as such, the project is facing severe financial constrains and it is not
possible for NCL to further retain the services of the employees, whose legitimate dues will
be paid in due course on receipt of outstanding payments from the clients. The petitioners before the NIRC Quetta Bench impugned the letter/order is sued by G.M. NCL on the ground
that they were terminated/dismissed from service/employment from back dates, whereas it is apparent from the bare reading of the order dated 11th June, 2015 that the petitioners were performing their duties till receiving of the said order, thus the employees are entitled for their salaries/dues till that period. Furthermore, the procedure for laying down an establishment is provided under the Industrial Relations Act, 2012 and West Pakistan Standing Order Ordinance, but the s ame has not been complied with while closing/laying
down the establishment and more particularly they were the employees of NCL, and not the clients, thus their salaries cannot be attached with the funds to be received by the employer from its clients. Fur thermore, the NCL/employer has also withheld the arrears for the period
ending December 2014.
3. The petitions were contested by the petitioner before NIRC Bench Quetta, by filing
written statements and mainly it was stated that after completion of contrac t period the same
was not extended from December 2014 onwards, no extension was granted in the earlier contract period and the employees were retained on their own request with the condition that their dues will be settled only after the employer gets into agreement/settlement with his
clients. The employer has also denied the claim of arrears.
4. Record transpires that after filing written statement, the employer has failed to appear
in the NIRC Bench Quetta, thus accordingly proceeded against ex parte and his right of
defense was closed, while the employees were directed to produce ex parte evidence in
support of their contentions, to which the petitioners filed affidavits -in-evidence which were
read and re- affirmed by the them through their attorneys and by means of order dated 20th
April 2018 the petitions were allowed and employer/petitioner was directed to make payment
outstanding dues/salaries and arrears to the employees.
5. The employer being aggrieved, assailed the order dated 20th April 2018 before the
Full Bench of NIRCS, but the same was also dismissed, vide order dated 17th June 2019.
Whereafter, the petitioner (employer) has filed the present petitions.
6. Learned counsel for petitioner contended that the concurrent findings of both the
forums b elow are suffering from material illegalities and irregularities as no proper
opportunities of hearing was afforded to the employer and thus he has been condemned unheard; that the issuance of letter dated 11th June 2015 by G.M. (West) at Quetta is the result of pressure and coercion; that according to terms of contract the employment of the
employees was ended on 31st December 2014 and even not extended further, thus they cannot claim for their dues/salaries alter the expiry of contract.
7. Heard the learn ed counsel for petitioner and perused the record with their valuable
assistance. The perusal of record reveals that not only before the Full Bench of NIRC, but also before the NIRC Bench Quetta, there was a lack of interest on the part of petitioner to contest the Proceedings properly. The petitioner before NIRC Bench Quetta after affording
number of opportunities has only filed his written statement, but has failed to properly contest the proceedings, thus proceeded against ex parte and ex parte evidence w as produced
by the employees, which eliminated into allowing the petitions filed by the employees before the NIRCS Quetta. The impugned order dated 20th April 2018 was passed by NIRC Bench Quetta, but the application for obtaining the certified copy of the order was moved to the
NIRC Quetta Bench on 18th May 2018 i.e. after lapse of 28- days, which was supplied to him
on the very said day. Meaning thereby that still two- days were remained with the employer
to present his appeals before the Full Bench of NIRC , but the appeals were filed on 10th June
2018 i.e. after delay of 22 days along with an application for condonation of delay.
8. Bare perusal of provisions of Section 58 of IRA, 2012 are very much clear that an
aggrieved party from an order of Bench of the Commission, may within thirty days of such decision to prefer an appeal before the appellate authority, but admittedly the appeal before the appellate authority has been filed after inordinate delay of 22 days. Mainly, the employer has taken the plea for delay in filing the appeals that the copies of the order were taken from
the NIRC Quetta Bench and were kept in the office of employer, but the employees along with their other colleagues had illegally occupied the office and did not allow the officials o f
the management to enter and work in the office which caused delay in filing these appeals, as such, the delay was not deliberate or intentional.
Be that as it may, if the plea taken by the employer was true, then under such
circumstances the employer sh ould have initiated criminal proceedings before the competent
forum or to immediately approach the NIRC Quetta for issuance of another copy, but this has
not been done so. Hence, presumption cannot be ruled out of consideration that such grounds have been taken by the employer to make out a ground for condoning the delay. However,
the Full Bench of NIRC has rightly dismissed the appeal by not condoning the delay, because legally when right could not be enforced because of limitation, same would vest/accrue in
favour of the opposite party. It is well settled principle of law that where the matter is barred
by time the Court cannot go into merits of the controversy between the parties. Reliance in
this regard is placed on the case of Independent Media Corporat ion (Pvt.) Ltd. through Chief
Executive and others v. Raja Tariq Mehmood and others, 2018 PLC Note 29 (Sindh High Court). The relevant portion is reproduced here under:
"10. Third question with regard to point of limitation. This Court was requested to condone the delay to approach NIRC by the Petitioners, but the same request was not
acceded to, we are of the considered view that this Court cannot condone the limitation period for filing of Appeal before NIRC. It is well settled law that where the matter is barred by time the Court cannot go into merits of the controversy
between the parties. From perusal of pleadings of the parties and orders passed by the learned Sindh Labour Court No. V, Karachi, it is crystal clear that the learned Full Bench of NIRC v ide Impugned Order dated 01.08.2017 considered every aspect of
the case and rendered the final decision within the parameters set forth in law."
In the above cited judgement, the Hon'ble Sindh High Court has further held that:
"13. It is well settled law that, for seeking relief against any grievance within the time
specified under the law of Limitation Act, 1908 and if party aggrieved does not approach the appropriate forum within the stipulated period/time, the grievance
though remains, but it cannot be redressed because if on the one hand there was a
right with a party which he could have enforced against the other, but because of principle of limitation, same right then vests/accrues in favour of the opposite party. The learned Full Bench of NIRC has d ealt with every aspect of the matter and has
rightly concluded that the same is barred by law. We concur with a view taken by the learned Full Bench of NIRC, therefore, the instant petition is not maintainable against the Order passed by the learned full B ench of NIRC."
9. We have gone through the orders delivered by the Forums below and found no
illegality or irregularity in the impugned orders warranting to issue writ against the same. Since, the employer has not only adopted irresponsive attitude before the NIRC Quetta, but the same was continued whistle filing the appeals before the Full Bench of NIRC by filing the appeals after delay of 22 -days and that too without any plausible explanation. The
employer was obviously not vigilant in defending and asser ting his rights and as such let the
period of limitation expire before approaching the Full Bench of NIRC. The delay have not been explained in even a remotely convincing manner. The delay defeats equity, time and tide wait for none and law helps the vigil ant not the indolent. The object of law of limitation
is to help the vigilant and not the indolent. The helping hand could not be extended to a litigant on having become forgetful of his rights. Reliance has also been placed on the case of Naik Muhammad v. Muhammad Shabbir and others 2019 CLC 164. The relevant portion
reads as under:
"While enacting the Limitation Act, 1908, the legislature in its wisdom has fixed the
period of limitation for a particular action. The structure of the law is founded upon the legal maxims, that delay defeats equity, time and tide wait for none and law helps
the vigilant not the indolent. The object of law of limitation is to help the vigilant and not the indolent. Helping hand could not be extended to a litigant on having bec ome
forgetful of his rights. Besides, invoking remedy by some aggrieved person beyond the period of limitation prescribed for redressal of grievance, creates a valuable right in favour of the opposite party, therefore, in such case, delay of each day has t o be
explained by the defaulting party to the satisfaction of the court, which could not be condoned lightly or as of routine, as such arbitrary exercise of discretion would cause serious prejudice to the opposite party. In the case in hand, petitioners pr oved
themselves indolent towards their rights and kept silent for four months in filing another application."
For the above reasons, the petitions being devoid of merits, are hereby dismissed in
limine
MH/180/Bal. Petitions dismisseThis judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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