MUNAWAR PARVEZ AND ANOTHER Versus HASHMI CAN Co. LTD.

DECISION

I propose to dispose of these two appeals by common order, as the point involved for decision is the same in both the appeals. Both the appellants were Fitter-cum-Machinist and were employed by Messrs Hashmi Can Company Limited (hereinafter called the respondent). The services of both the appellants were terminated with effect from 18th March, 1970. Both the appellants filed applications under section 34 of the Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance), on 19th October, 1971.

2. The case of the appellant was that they were permanent employees of the respondent-Company and that their services were terminated because they were active workers of the Trade Union. On the other band, the case of the respondent-Company was that the appellants were on probation when their services were terminated in accordance with the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance 1968 (hereinafter called the Standing Orders Ordinance). The respondent also took legal objections that the appellants had not followed the procedure laid down under Standing Order 18 of the (Standing Orders) Ordinance and that their applications were barred by the provisions of Order IX, rule 9 of the Code of Civil Procedure. Lastly it was contended by the respondent that the applications were very belated ones as the cause of action to the appellants arose on 18th March 1970 and they made the applications before the Labour Court on 19th October, 1971.

3. The learned Labour Court held that the applications of the appellants were not maintainable, as they had not followed the procedure prescribed under Standing Order 18 of the Standing Orders Ordinance. It was also held that the provisions of Order IX, rule 9 of the Code of Civil Procedurd, barred the applications. Lastly, it was held that the applications were "highly time-barred."

4. It is not necessary to go into the contention of Mr. Wasi Ahmad, the learned Representative for the appellants, in respect of the finding relating to Order IX, rule 9, C.P.C. and Standing Order 18 of the Standing Orders Ordinance, as the appeals must fail on the ground that the appli cations filed before the Labour Court were very belated. Even if the provisions of Order IX, rule 9, did not bar the appli cations C. P. C. and the appellants had followed the procedure prescribed under Standing Order 18 of the Standing Orders Ordinance, the applications would have failed on the ground that they were very belated.

5. In the applications filed by appellants no explantion, whatsoever, had been offered for this long delay of about a year and a half. All that had been stated in the applications filed by the appellants, though not in order to explain the long delay, is that they had lodged complaints to the Labour Welfare Directorate, Karachi, but they were directed to seek redress before the Labour Court. In paragraph 9 of their applications, they stated as under:

"That the applicant lodged a complaint to the Labour Welfare Directorate, Karachi, but he was directed to seek his redress from the Labour Court."

6. The appellants did not specify the date when they lodged the complaint and when they were directed by the Labour Welfare Directorate to approach the Labour Court. I would, presume, in the absence of any date mentioned in paragraph 9, reproduced above, that the appellants approached the Labour Directorate immediately after their dismissal .in March, 1970 and tae Labour Directorate, soon thereafter, directed them to approach the Labour Court. They should not have waited for about a year and a half to approach the Labour Court. The respondent had speci fically stated in paragraph 2 of its Reply Statement "that the application is highly belated inasmuch as the alleged case of action accrued to the applicant on 18-3-70 and the present application has been made on 19-10-71. The application suffers from serious lathes and delay and is liable to be dismissed." The appellants did not request the Court, in spite of specific plea on the part of the respondent that the applications were very belated, to lead any evidence to justify the delay.

7. Reference may be made to a decision of the High Court of Sind & Baluchistan in M. A. No. 31 of 1968 (Syed Azizuddin v. Hashmy Can Company). In that case, Mr. Justice Agha Ali Hyder, if I may say so with respect, after considering all the case-law on the subject of delay and laches relating to industrial disputes, came to the conclusion that the delay of one year was fatal to the proceeding under section 31 of the Industrial Disputes Ordinance, 1959. In that case, though the Court came to the conclusion that an industrial dispute was pending when the services of the appellant were dispensed with and the provisions of section 30 of the Ordinance of 1959 were attracted, Agha Ali Hyder, J. on the ground that the application was very belated dismissed the appeal. Relying on the case decided by Agha Ali Hyder. J. I would hold that the application A were very belated and, they were rightly dismissed by the learned Presiding officer of the Labour Court. The appeals are dismissed