livelawpk.com - Special Law Limitation prevail over Limitation Act 1908

The Limitation provided by Special Law would prevail over the provisions of Limitation Act 1908 --- SCP

Islamabad 02-02-2024: The Honourable Supreme Court of Pakistan interpreted the principles of limitation on special law. The Honourable Judge of Supreme Court, Mr. Justice Syed Hasan Azhar Rizvi while hearing [Civil Petition No.1787-L of 2022] observed that the record shows that the respondent was working as a Line Superintendent-II, Store at Thermal Power Station, Muzaffarabad and was dismissed from the service on the charges of alleged misconduct. After exhausting all departmental remedies, the respondent filed a grievance petition before the Labour Court, which was subsequently transferred to the NIRC. Admittedly, the petitioner, initially, appeared and participated in the proceedings before the member NIRC and opposed the grievance petition by submitting a contesting written reply. However, at a later stage, the petitioner disappeared from the scene and as a result, an ex-parte judgment dated 09.11.2018 was passed against him by the member NIRC.

The Section 58 of the Industrial Relations Act, 2012 (“IRA”), stipulates that any person aggrieved by a ‘decision given’ by any Bench of the NIRC may, within thirty days of such decision, prefer an appeal to the NIRC. And, the appeal shall be heard and adjudicated by the Full Bench of the NIRC. The above-quoted provision of law expressly provides a statutory remedy of appeal to a person who is aggrieved by the order of any Bench of the NIRC. The aggrieved person is required to file the said appeal within thirty days of such order. So, the petitioner, if feeling aggrieved by the said ex-parte judgment dated 09.11.2018 of the member NIRC, should have filed an appeal by 09.12.2018. It is a matter of record that the petitioner did not file any appeal, and the prescribed period of limitation for filing the appeal under Section 58 of IRA expired; therefore, the said ex-parte judgment is final between the parties on the basis of the well-known principle of res judicata.

It is also observed by the Honourable Court that having knowledge of the aforementioned legal position, the petitioner devised a method to circumvent the applicable law on the subject i.e. IRA, and filed an application on 03.01.2019 under Order IX Rule 13 of the Code of Civil Procedure, 1908 (“C.P.C”) to set aside the ex-parte judgment, accompanied by an application for condonation of the delay.

To justify the delay in filing the application to set aside the ex-parte judgment, the petitioner, in the application for condonation of delay, asserted that he did not receive any notice or information regarding the pendency of the grievance petition filed by the respondent. He claimed to have knowledge about the ex-parte judgment on 10.12.2018 when he received an application from a former employee. However, this stance of the petitioner is self-contradictory as the record indicates that he, initially, appeared and participated in the proceedings before the member NIRC and opposed the grievance petition by filing a contesting written reply. The petitioner deliberately chose to abstain from joining the proceedings and displayed non-cooperation with the NIRC. Therefore, he has no right to request its (NIRC) indulgence and seek the setting aside of the ex-parte decree passed against him. The above facts clearly established that the petitioner failed to justify or explain the delay in filing the application to set aside the ex-parte judgment. Consequently, it was rightfully dismissed by the member NIRC through an order dated 07.01.2019.

It would be relevant to mention here that when the law under which proceedings have been initiated prescribes a period of limitation, the benefit of Section 5 of the Limitation Act, 1908 (“Limitation Act”) which allows for the filing of an appeal, application for revision, or a review of the judgment, etc. after the period of limitation after satisfying sufficient cause, cannot be availed unless Section 5 has been made applicable as per Section 29(2) of the Limitation Act as observed by this Court in the case of Allah Dino and another versus Muhammad Shah and others (2001 SCMR 286). Although the provision of Section 58 of the IRA itself prescribes a period of limitation of thirty days for filing an appeal, the provision of Section 5 of the Limitation Act has been made applicable under Section 85 of the IRA to all proceedings under the IRA. Unfortunately, the petitioner did not file any application for condonation of delay under Section 85 of the IRA read with Section 5 of the Limitation Act along with his appeal before the Full Bench of NIRC. Had the said application been filed, his appeal could have been decided on its merits rather than solely on the point of limitation.

While interpreting the purpose of limitation, the Honourable Court observed that the public interest requires that there should be an end to litigation. The law of limitation provides an element of certainty in the conduct of human affairs. The law of limitation is a law that is designed to impose quietus on legal dissensions and conflicts. It requires that persons must come to Court and take recourse to legal remedies with due diligence. Therefore, the limitation cannot be regarded as a mere technicality. With the expiration of the limitation period, valuable rights accrue to the other party, as observed in numerous judgments by this Court.

Finally it was held that the Full Bench of NIRC is fully justified in dismissing the appeal of the petitioner. The petitioners' deliberate abstention from joining the proceeding after appearing before the member NIRC provides a reasonable basis for the Full Bench to dismiss the appeal. Similarly, the High Court correctly exercised its jurisdiction and dismissed the constitutional petition filed by the petitioner under Article 199 of the Constitution. In its thorough analysis of the relevant law and available facts, the High Court has arrived at a sound and reasoned conclusion that is both legally sound and just. The petitioner has failed to make out any case for the grant of leave to appeal, and resultantly this petition is dismissed. Leave is refused.