Ishfaq Iqbal Raja VS Utility Store Corporation of Pakistan etc

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P.No.1793 of 2020 Ishfaq Iqbal Raja Versus Utility Store Corporation of Pakistan (Pvt.) Ltd. and others S. No. of order Date of order/ Order with signature of Judge and that of parties or counsel / proceedings Proceedings where necessary. 11.03.2021 Hafiz Farman Ullah, Advocate for the petitioner. Raja Zamir-ur-Din Ahmad, Advocate for the respondents.

Mr. Shahzeb Khan, Legal Officer, for the respondents.

Mr. Majid Swati, Senior G.M. (Legal), for the respondents.

Through the instant writ petition, the petitioner, Ishfaq Iqbal Raja, impugns the order dated 26.03.2019 passed by the learned Full Bench, National Industrial Relations Commission (“N.I.R.C.”) whereby his appeal against the order dated 28.02.2017 passed by the learned Member, N.I.R.C., was dismissed. Vide the said order dated 28.02.2017, the learned Member, N.I.R.C. had dismissed the grievance petition filed by the petitioner under Section 33 of the Industrial Relations Act, 2012 (“I.R.A.”) challenging inter alia the order dated 13.01.2015 passed by respondent No.1 / Utility Stores Corporation of Pakistan (“U.S.C.P.”) whereby the petitioner was dismissed from service. The petitioner’s grievance petition was turned down primarily on the ground that he had not served the grievance notice in accordance with the requirements of Section 33 of the I.R.A.

2.The record shows that vide order dated 13.01.2015, major penalty of dismissal from service was imposed on the petitioner after having been found guilty of the charge of inefficiency, negligence, indiscipline, dereliction from duty, etc. The said order was passed by Senior General Manager (HR&A), U.S.C.P. The petitioner claims to

have sent a grievance notice on 29.01.2015 through TCS to the Managing Director, U.S.C.P. Having not received any response to his grievance notice, the petitioner on 07.03.2015 filed a grievance petition before the N.I.R.C. under Section 33 of the I.R.A. In paragraph 15 of the said petition, it has been pleaded that the petitioner had submitted a grievance notice to the Managing Director, U.S.C.P., on 23.05.2014. In the said grievance petition, it has not been pleaded that the petitioner had served a grievance notice on his employer against his dismissal order dated 13.01.2015. In its reply to the grievance petition, U.S.C.P. had taken an objection to the maintainability of the said petition inter alia on the ground that a “grievance notice ha[d] not been served upon the employer within the four corners of the I.R.A.”

3.Vide order dated 28.02.2017, the said grievance petition was dismissed by the learned Member, N.I.R.C. primarily on the ground that the essential pre-requisite of serving a grievance notice under Section 33 of the I.R.A. had not been complied with. The petitioner’s appeal against the said order dated 28.02.2017 was dismissed vide order dated 26.03.2019. The said concurrent orders have been assailed by the petitioner in the instant writ petition.

4.Learned counsel for the petitioner, after narrating the facts leading to the filing of the instant petition, submitted that the petitioner had sent a grievance notice through TCS on 29.01.2015 to the Managing Director, U.S.C.P.; that it is not the form but the substance of the said notice that should have been taken into consideration; that the mere fact that the said notice was captioned as “grievance notice / departmental appeal” is of no

legal consequences since it had all the necessary ingredients of a grievance notice; that the date written by hand on the grievance notice could not have invalidated the said notice; that the learned Full Bench, and the learned Member, N.I.R.C. erred by not appreciating that the petitioner had fulfilled his obligation of serving a grievance notice on his employer before filing the grievance petition; and that in paragraph 21 of the appeal, it had been pleaded that grievance notice had been submitted on 29.01.2015 against the dismissal order dated 13.01.2015. Learned counsel for the petitioner prayed for the writ petition to be allowed and for the concurrent orders passed by the learned Full Bench, and the learned Member, N.I.R.C. to be set- aside.

5.On the other hand, learned counsel for U.S.C.P. submitted that the instant writ petition has been filed with a delay of thirteen months; and that the learned Full Bench, N.I.R.C. had dismissed the petitioner’s appeal on 26.03.2019, whereas the instant writ petition was filed on 03.07.2020; and that the instant petition is liable to be dismissed on the ground of laches.

6.Learned counsel for U.S.C.P. further submitted that the concurrent findings of the learned Full Bench, and the learned Member, N.I.R.C. to the effect that a grievance notice had not been served by the petitioner on his employer in accordance with the law does not suffer from any legal infirmity; that the learned Full Bench, N.I.R.C. had correctly observed that the petitioner had not sought his reinstatement in service in the alleged grievance notice; and that in the grievance petition, the petitioner had not even pleaded that a grievance notice had been served on his employer against the dismissal order. Learned counsel for

U.S.C.P. prayed for the writ petition to be dismissed.

7.I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the instant petition have been set out in sufficient detail in paragraphs 2 to 3 above, and need not be recapitulated.

8.Vide order dated 26.03.2019, the Full Bench, N.I.R.C. had dismissed the petitioner’s appeal against the order dated 28.02.2017 whereby the petitioner’s grievance petition against his dismissal from service was dismissed. The instant writ petition was filed on 03.07.2020 i.e., more than one year after the passing of the said appellate order dated 26.03.2019.

9.The petitioner could not come up with any plausible explanation for the inordinate delay in filing the instant petition. In the case of Pakistan International Airlines Corporation Vs. Tanveer-ur- Rehman (PLD 2011 S.C. 676), it has been held that an aggrieved person may invoke the jurisdiction of the High Court under Article 199 of the Constitution within a “reasonable time” and “reasonable time” had been interpreted to mean ninety days. The Division Bench of the Hon'ble Lahore High Court in the case of Tayyab Iqbal Vs. Member (Colonies) Board of Revenue, Punjab (2005 CLC 1447) held as follows:- “There is no period of limitation prescribed for filing of a Constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 but it has to be filed within a reasonable time. What is the reasonable time, has been interpreted by the superior judiciary of this country as time requisite for filing of appeals/revisions before this Court which is normally three months.”

10.In the case of State of Madhya Pradesh Vs. Bhailal Bhai (AIR 1964 SC 1006), it was observed

as follows:

“The provisions of the Limitation Act do not as such apply to the granting of relief under Article 226. However, the maximum period fixed by the Legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. The Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable.”

11.The Superior Courts have held time and again that when a Court holds that a writ petition is liable to be dismissed on the ground of laches or delay, it is inappropriate to give a finding or an observation on the merits of the case. Reference in this regard is made to the case of Muhammad Din Vs. Abdul Ghani (2012 SCMR 1004), wherein it has been held as follows:- “6. ....... if a Court comes to the conclusion that the petition was barred by laches, it is not required that it should also decide the issue raised in the petition on merits.”

12.Since I have decided to dismiss this petition on the ground of laches, it is not necessary to delve into the merits of the case. Consequently, this petition is dismissed due to laches / delay on the petitioner’s part in approaching this Court. There shall be no order as to costs.

(MIANGUL HASSAN AURANGZEB)

JUDGE

Sultan*