2008 PLC 350 (PLP)

Laws Cited

Representation

• Sadaqat Hussain Raja for Appellant.
• Khawaja Muhammad Aslam Habib for Respondents.
• ----S. 30---Azad Jammu and Kashmir Service Tribunal Act (XXII of 1975), S.4---Azad Jammu and Kashmir Industrial and Commercial Employment (Standing Orders) Ordinance, 1975, S.O.15(5)---Muslim Commercial Bank Staff Service Rules, 1981, R.15---Termination of service---Grievance petition---Serving grievance notice through Advocate---Labour appeal---Employee of Bank who was serving as Driver, his services having been terminated, he served grievance notice on the Bank through his counsel, which remained undecided and employee filed grievance petition against termination of his services---Grievance petition was objected to by the Bank alleging that grievance notice was not served in the manner prescribed by law---Under provisions of S.30 of Azad Jammu and Kashmir Industrial Relations Ordinance, 1974, a worker was entitled to file petition on violation of any right guaranteed or secured to him by or under any law, to the notice of his employer in writing, either himself or through his Shop Steward or Trade Union--Grievance notice in the case was not served by the employee himself or through his Shop Steward or Trade Union, but was served by an Advocate on behalf of employee, in violation of provisions of S.30 of Azad Jammu and Kashmir Industrial Relations Ordinance, 1974---Grievance petition filed by the employee being not maintainable, had rightly been rejected by the Labour Court.
• Precise facts of the case are that the petitioner was appointed as Guard in Muslim Commercial Bank on 17-8-1974. He was later on promoted as driver in 1992. It is claimed that the petitioner was President of M.C.B. Employees Union which is Collective Bargaining Agent since 1983 and as the President the petitioner was not in good terms with the respondents, therefore, without assigning any reason and justification, vide letter, dated 4-4-2007 the services of the petitioner were terminated by the respondents under rule 15 of M.C.B. Staff Service Rules, 1981. The petitioner served a grievance notice on the respondents for withdrawal of illegal order on 11-4-2002 which remained undecided hence the petitioner was constrained to file a petition under section 30 of the Azad Jammu and Kashmir Industrial Relations Ordinance, 1974 read with section 15(5) of the AJK Industrial and Commercial Employment (Standing Orders) Ordinance, 1975. The application was objected by the other side. During pendency of the petition, an application was filed on 18-7-2002 on behalf of the respondents for rejection of the petition. The appellant herein filed objection to this application and after hearing the advocates for the parties, the Labour Court rejected the application through the impugned order.
• Raja Sadaqat Hussain, learned Advocate for the appellant, inter alia contended that the Labour Court fell in error in holding that the Court has no jurisdiction to entertain the proceedings in view of amendment effected in section 2-A of the Service Tribunals Act, 1973. The learned Advocate further contended that finding of the trial Court that the grievance notice cannot be served through an Advocate is also contrary to law, hence, is liable to be reversed. The learned Advocate further submitted that the rejection of the application in exercise of the powers under Order VII, rule 11 was also without jurisdiction.
• Khawaja Aslam Habib learned Advocate for Muslim Commercial Bank opposed the contentions and submitted that the judgment of the Labour Court is perfectly justified on facts and law hence need no interference. The learned Advocate submitted that the requirement of law is that the grievance petition must be served in the manner prescribed by law not through a counsel or attorney. The learned Advocate further contended that the findings of the Labour Court on this point are unexceptional and have been supported by law laid down by the superior Courts. The learned Advocate further contended that as the provisions of the Code of Civil Procedure were applicable, therefore, the jurisdiction, under Order VII, rule 11 cannot be said to have been exercised without lawful authority. The learned Advocate lastly argued that as a result of policy decisions along with others, the petitioner was retired therefore, the grievance alleged by him is not covered by the term "industrial dispute" hence was not challengable before the Labour Court.
• I have heard the learned advocates for the parties and have perused the record.
• Precise point which needs resolution and on the basis of which the trial Judge has rejected the application is whether the grievance notice under section 30 of the AJK Industrial Relations Ordinance could be served through an Advocate?
• In the instant case admittedly the said notice has been served by Chaudhry Muhammad Ibrahim Zia, Advocate on behalf of the petitioner, under section 30 of the Azad Jammu and Kashmir Industrial Relations Ordinance, 1974 "a worker is entitled to file a petition in respect of any right guaranteed or secured to him by or under any law for any award or settlement for the time being in force to the notice of his employer in writing either himself or through his Shop Steward or Trade Union within 3 months of which a case of grievance arises. The word "himself" has been used significantly by the Legislature which does not include agent or Advocates, except the legal persons mentioned in the section itself. The proposition needs no labourious discussion as the same has been set at rest by the apex Court of Pakistan in the case titled as Syed Muhammad Hussain v. Messrs Pakistan Tobacco Co. Ltd. PLD 1980 SC 80. At page 82 of the report the learned Judge opined as under: --
• The same view was reiterated in the case titled Muhammad Anwer v. Zahid Hussain 2002 PLC 17. In this case grievance notice was also served upon the employees by his Advocate and it was held that the petition is not maintainable.
• In view of above dictum of the Supreme Court, the authorities of the Tribunal relied upon by Sadaqat Hussain Raja learned Advocate for the petitioner cannot be relied upon. As the petition is not maintainable, therefore, the same has rightly been rejected in exercise of the powers available to the Labour Court under Rule 11 of Order VII of the Code of Civil Procedure. After coming to the aforesaid conclusion, decision on other points would be academic.

Headnotes / Summary

Judgment & Decree