1994 PLP 243 (PLC)

Ibne Ayub for Respondent. Date of hearing: 16th November, 1993. These two appeals call in question the order of the Labour Court reinstating the petitioner in service with full back benefits. The facts forming the background of the case in a nut‑shell are as follows.

2. It was alleged by the petitioner that "he was a permanent employee of respondent No.l through respondent No.2" as a weaver. On 18‑2‑1982 when he reported for duty, he was stopped at the gate. On enquiry he learnt that "respondent No.l had terminated" his services. Aggrieved by this turn of affairs, he had sent grievance notice to both the respondents on 20‑2‑1992, and getting no reply had filed the petition before the Labour Court impleading both of them. The prayer was couched in the following terms:‑‑ "It is, therefore, prayed that this Honourable Court may be pleased to set aside the oral termination dated 18‑2‑1992 and direct the respondent No.l to reinstate the applicant in service with full back benefits."

3. The respondent No.l in their written reply objected to the maintainability of the petition, as there was no relationship of an employer and employee between the parties. They also alleged non‑receipt of the grievance notice. It went on to say that the mill had entered into a contract with an independent contractor who exercised total supervision and control over their employees of the Weaving Department. Khursheed Khan, the respondent No‑2 was mentioned as the contractor in question.

4. The respondent No.2 also alleged that he had` not been served with the t; grievance notice. It was however admitted that the petitioner was an employee of theirs and had himself disappeared/absconded from 18‑2‑1992 and in spite of persuations had refused to report for duty. It was further detailed that he was doing his own business as a fruit seller.

5. The petitioner was his own witness and was cross‑examined on behalf of both the respondents. However, none of the, respondents examined any witness though the record shows that they had submitted written arguments.

6. The respondent in his cross‑examination admitted that he was an employee of Khursheed, who was the contractor of the Weaving Section of the Mill. He had earlier produced with the petition a voucher to that effect. The case of appellant Khursheed Khan was that it was the respondent himself who had disappeared from the scene. It is not his case that he had issued any show cause or taken any other step against him. He had not even cared to enter the witness‑box in support of his assertion. Under the circumstances the word of" the respondent remained in the field, which was to the effect that his services were terminated orally. This could not be done under the law. Under the circumstances the order of reinstatement was the only order to pass.

7. The sole question for consideration remains whether in the circumstances of the case, the learned Presiding Officer was justified to direct both the appellants to reinstate and also pay the back benefits. According to Noor Ahmed, the Administrative Officer of the Mill, who had appeared on behalf of the appellant mill, as they had nothing to do with the employment or the removal of the respondent no relief could be granted against them. It was left to Mr. Latif Saghar appearing for the appellant Khursheed Khan to come out with the citations. He had referred to the cases of Dawood Cotton Mills Ltd. v. Shah Zarin 1992 P L C 1274, Dawood Cotton Mills Ltd. v. Presiding Officer, Labour Court No.IV and 2 others 1979 P L D 50 and Ghulam Ali v. Noor Muhammad 1975 P L C 32.

8. The first one has got no bearing with the proposition under question. What had happened in the second case was that the impugned orders of the Senior Labour Court and the Appellate Labour Court were based on different sets of grounds which the petitioner was not called upon to reply and the same was "thus changed from stage to stage". To my mind, even this will not be on all fours. However, the last decision which is from this Tribunal, is relevant. The respondent therein had prayed for the recovery of his earned wages, notice pay, wages for annual leave and week rest etc. and had not at all prayed for reinstatement. Even in his affidavit‑in‑evidence he had gone to the extent of expressing his unwillingness to serve the Organization. In these circumstances and in the absence of any prayer to that effect it was held that the Labour Court could not have ordered the reinstatement of the respondent.

9. Even this authority will not totally demolish the case of the respondent. It is to be appreciated that the petition had been drafted and prosecuted by a representative who can never lay any claim to adroit draft-manship. The petition began by mentioning that the petitioner was an employee of "the respondent No.l through the respondent No.2" and ended with the prayer that the respondent No.l be directed to reinstate him in service.

10. There is nothing to show on the record that Khursheed Khan is not an independent contractor. Even the respondent admits his status as such. He had himself produced the voucher of employment alongwith the petition.

11. There being nothing colourable in the relationship between the mill and the contractor, the prayer, therefore, was misconceived. But as the Labour Laws are beneficial in nature, the worker cannot be put out of Court only on technical ground. The grievance notice which is the sine quo non for filing of the petition under section 25‑A of the I.R.O. is to be sent by the aggrieved worker himself. A legal practitioner can appear before the Labour Court only with the permission of the Court. An industrial dispute was to be disposed of in 7 days time. Such, being the scheme of the I.R.O., perspicuity of expression and clarity in formulation of relief will be too much of a demand and expectation. Any way the respondent had explicitly mentioned, that it was Khursheed Khan, who was his employer. The written statement filed by Khursheed Khan and the cross‑examination of the respondent leaves no doubt about it. I will, therefore, modify the order and direct the appellant No.2 i.e. Khursheed Khan, the Contractor, to reinstate him in service as directed within a period of thirty days and also pay him the back benefits, as he had complained of joblessness.

12. As a result the Appeal NoXAR‑683 of 1992 filed by Dawood Cotton Mills is allowed and Appeal NoXAR‑684 of 1992 filed by Khursheed Khan, Weaving Contractor, is dismissed.

13. Orders accordingly. H.B.T./2261/Lb.S. Order accordingly.