PROJECT DIRECTOR, IRRIGATION SCARP, AT SUKKUR Versus UPPER SINDH IRRIGATION EMPLOYEES' UNION, SUKKUR

DECISION

This appeal calls in question the order of the Labour Court by which on an application under section 34 of the I.R.O. the respondents Nos. 1 and 2 were directed to retain the applicants in service.

2. The circumstances forming the background of this case succinctly stated are, that the petitioners appointed on various posts had remained with WAPDA till 30‑6‑1990. On or about the 5th of August, 1990, a Notification was issued to the effect that 272 completed tubewells in the Tubewell Division Ghotki SCARP, Sukkur stood transferred to the Irrigation and Power Department with effect from 1st of July, 1990 with all its staff including the present petitioners. However after a few months, on objection from the Government of Sindh it was decided that the petitioners be returned to the WAPDA, as there was no provision against which the work‑charged staff could be adjusted by the Irrigation Department. Fearing termination of their service the respondents filed a petition. The prayer was couched in the following words:

(a) To declare that removal of the workers if any made by the respondent No. 2 is illegal, improper and ab initio void.

(b) To grant permanent injunction for restraining the respondent No. 2 from removing the workers in number 124 from their service with force is illegal and against the nature of law.

(c) To grant any other relief/s which the Honourable Court may deem fit and proper under the circumstances of the case.

(d) Costs of the case be also awarded to the applicants.

3. The respondent No. 3 viz.. WAPDA in their Written Reply admitted that the petitioners had been employed by them, but after 1‑7‑1990 they were drawing their pay from the Irrigation Department, and they had also written to the respondent No. 2 that they could absorb the staff as per existing rules and policy of the Authority.

4. In the Written Reply filed by the respondents Nos. 1 and 2 it was said that all that was transferred to them was the administrative control of the 272 tubewells and not the entire staff attached to these numbers. The petitioners were served with one month's notice for discharge from service from 21‑11‑1990. There were also objections taken in regard to the maintainability of the petition before the Labour Court.

5. The Labour Court for the reasons given by it showed the application with the direction to the respondents Nos. 1 and 2 to retain them in service.

6. An objection was taken before me by the learned counsel appearing for the respondents that the appeal was time‑barred. According to Mr. Mazhar Ali B. Chohan no delay was involved as the Labour Courts were closed for summer vacation and the appeal was filed on their re‑opening on the 8th of August. The record shows that the impugned order was passed on the 8th of June, 1992 and the copy was supplied on the 4th of July, 1992. Since the Tribunal was observing its summer vacation from the 1st week of June till the 8th of August. 1992, the computation of time therefore falls under section 4 of the Limitation Act which reads as under:‑‑

"Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re‑opens."

7. The commentary on the Limitation Act from Mitra edited by M. Farani shows that the functioning of the Courts offices is not enough. It reads as under:‑‑

"From the plain reading of section 4 of the Limitation Act it becomes abundantly clear that the period during which the Court remains closed on account of vacations, has to be excluded for the computation of limitation and the notification cannot take precedence over the statutory provision. Even otherwise, the notification merely gives the petitioners an option to file petitions. Such an option cannot be construed so as to take away a statutory right:" (Page 25).

8. Under the circumstances the appeal is in time and not open to any exception.

9. It is to be seen that the original employers were WAPDA. As held in Bashir Ahmed and others v. Member, Board of Revenue, Punjab 1988 SCMR 18 (sic) the jurisdiction of the Labour Court is not available to the employees of WAPDA. It vests in the Service Tribunal.

10. It is also an admitted position that the petitioners belonged to the work‑charged staff, and their services even after years of employment could be terminated even verbally as held in Muhammad Yakoob v. Punjab Labour Court No. 1 and others as reported in 1990 SCMR 1539. However the Irrigation Department had been generous enough to give them a notice with a month's pay which they were not required to do, under the law.

11. It is also to be seen that the petitioners were still in employment when the petition was filed. I had hardly any assistance from either side but to my mind the Labour Court had exceeded its jurisdiction, to function as a Court of Civil Jurisdiction, and that too ignoring the provisions of section 56 of the Specific Relief Act.

12. I am clearly of the opinion that the order is unsustainable. I will therefore vacate the order and allow the appeal.

H.B.T./2168/Lb.S Appeal allowed.