2017 PLP 14 (PLC N)

JUSTICE (R) ALI SAIN DINO METLO, MEMBER/ CHAIRMAN.

The appellants have challenged order dated 11-02-2006 of the Sindh Labour Court No. V, Karachi, dismissing their grievance petition No. 200/2003 as not maintainable.

2. Briefly, the facts are that on 22-09-2003, sixty nine workers including the appellants, through their Collective Bargaining Agent (CBA), namely, Chamber of Commerce and Industry Employees Union, filed the above petition in the Labour Court alleging that their employer (the respondent) had unilaterally changed, through its internal memos/circulars dated 28-05-2003 and 30-06-2003, terms and conditions of their service and had deprived them of gratuity completely, imposed unreasonable restrictions on provident fund and reduced annual leave from total two months to total twenty one days, w.e.f. 01-07-2003, in violation of its own Rules framed in consequence of various settlements with CBA. Further alleging that it had changed the terms and conditions of service during pendency of conciliation proceedings before the Area Conciliator. They prayed for declaring the internal memos of the respondent as illegal, null and void, having no legal sanctity and that the appellants were entitled to all the benefits provided under the Rules framed by the respondent in consequence of settlements with CBA.

3. In its written reply, the respondent challenged maintainability of the petition on the grounds that it was not an "establishment" and, therefore, Industrial Relations Ordinance did not apply to its employees; and that the legal notice was addressed to and served upon an incompetent authority i.e. Secretary and not upon the President of the respondent; and joint application of sixty nine workers filed through the General Secretary of the CBA Union was not maintainable. The respondent further contended that after expiry of the terms of the settlements, the respondents were not bound by them and that no dispute was pending before the Area Conciliator.

4. During the pendency of the grievance petition, the Registrar, under his order dated 24.11.2003, cancelled registration of the CBA Union, on the ground that the Industrial Relations Ordinance was not applicable to the respondent establishment.

5. Taking advantage of Registrar's orders, the respondent moved an application for dismissal of the grievance petition on the ground that registration of the union, through which the workers, had given grievance notice and had filed the grievance petition, had been cancelled. However, the Labour Court, by its order dated 10-07-2004, allowed the workers to sign their grievance petition individually and rejected respondent's application for the dismissal of grievance petition.

6. On appeal against the order of the Registrar, the Labour Court, by order dated 06.05.2005, restored registration of the Union. The respondent's Constitutional Petition No. S-295/2005 challenging order of the Labour Court was dismissed on 01-12-2009 Tide judgment reported in 2010 PLC 177 Karachi and its appeal was dismissed by the Hon'ble Supreme Court on 21.07.2012 vide judgment reported in 2011 SCMR 1709. All the Courts, including the Hon'ble Supreme Court, have held that the respondent was an 'establishment' and the Industrial Relations Ordinance applied to it.

7. Under the impugned judgment, the Labour Court, while holding that the respondent was an 'establishment', and the Industrial Relations Ordinance applied to its employees, and joint application of workers was permissible, dismissed the grievance petition on the ground that the grievance notice was addressed to and served upon an incompetent authority i.e. the Secretary and not the President of the respondent, further observing that out of sixty nine applicants, nineteen, including Athar Hussain, had withdrawn and not pursued the application.

8. Learned counsel for the employer, relying upon the case of Khushhal Khan versus Muslim Commercial Bank (2002 SCMR 943), argued that the Labour Court was right in dismissing the grievance application of the workers due to service of grievance notice on improper person i.e. the Secretary of the Chamber instead of the proper person i.e. the President of the Chamber. In Khushhal Khan's case, notice/appeal was sent to the President of the bank, while the 'competent authority' was the Regional Manager of the Bank.

9. Learned counsel for the worker argued that the judgment of Khushhal Khan's case is per incuriam of a plethora of earlier judgments in which the Hon'ble Supreme Court had held that procedural technicalities should not be allowed to block the way of justice.

10. In the case of Imtiaz Ahmed v. Ghulam Ali (PLD 1963 SC 382) Kaikaus, J in his dissenting note, had observed: " . the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on ground of public policy . Any system which by giving effect to the form and not to the substance defeats substantive rights is defective to that extent."

11. Later on the Supreme Court approved and followed the observation of Kaikaus, J in a number of cases, such as Manager Jammu and Kashmir State Property v. Khuda Yar and others (PLD 1975 S.C. 678), Allah Ditta v. Barkat Ali (1992 SCMR 1974), Muhammad Yousaf v. Khan Bahadur (1992 SCMR 2334), Jameel Ahmed v. Saifuddin (1992 SCMR 260), United Bank Limited v. Pakistan Industrial Credit and Investment Corporation (PLD 2002 SC 1100), Sajawal Khan v. Wali Muhammad (2002 SCMR 134), Mst. Bundi Begum v. Munshi. Khan (PLD 2004 S.C. 154), Muhammad Shafi v. Muhammad Asghar (PLD 2004 S.C. 875) and Muhammad Asghar v. Hassan Ahmed (PLD 2014 SC 89). Thus, the law is very well settled that technicalities of procedure shall not block) the way of justice.

12. Learned counsel for he appellant also relied upon the case of Gulbat Khan v. WAPDA (1992 SCMR 1789) in which Gulbat Khan, a Line Superintendent, was removed from service by Water and Power Development Authority (WAPDA). Instead of sending representation to the Authority, he sent appeal to the Chairman of the Authority and it was argued that the appeal sent to the Chairman could not be treated as representation to the Authority. The Hon'ble Supreme Court was pleased to repel the argument by holding that there was no bar in treating the appeal as representation and that the Chairman should have treated it as representation and passed on to the Authority next above him and that the employee could not be made to suffer for failure of the Chairman to do what he was expected to do.

13. According to the Articles of Association of the Chamber, the Secretary of the Chamber is the incharge of the office responsible for the performance of entire official work and all correspondence of the Chamber is to be made by him. In such circumstances, service of grievance notice upon the Secretary cannot be said to be service upon an improper person.

14. Learned counsel for the appellants contended that the Secretary, besides being the principal officer in charge of the office of the respondent, was also appointing authority of employees of Classes III and IV to which the appellants (workers) belonged. He referred to Rue 2(e) of the Service Rules of the respondent showing that Secretary was the appointing authority of the employees of Classes III and IV. Learned counsel for the respondent could not deny the above position.

15. The other ground of dismissal of grievance application by the Labour Court that nineteen of the sixty nine applicants had earlier withdrawn or not pursued the application is also not tenable. First, there is no order regarding withdrawal of the application. Secondly, an application cannot be withdrawn without consent of all the applicants. Thirdly, failure of some of the applicants to pursue the joint application cannot be made a ground for dismissal of the application pursued by majority of the applicants.

16. Learned counsel for the respondent argued that the settlements under which the appellants claimed their rights had expired and, therefore, the grievance application was not maintainable. According to Section 60(2) of the Industrial Relations Ordinance, 2002, which was the law applicable at the time of filing the grievance application, notwithstanding expiry of two years, a settlement shall continue to be binding until the expiry of two months from the date on which either party informs the other party in writing of its intention no longer to be bound by the settlement. The respondent has not claimed to have given any such notice and, therefore, the settlement shall be binding notwithstanding expiry of two years.

17. Learned counsel for the respondent also argued that the Service Rules made by the Chamber can be amended by the Chamber at any time and no exception can be taken to the impugned circulars/internal memos changing them. The contention is without force. The Rules were framed by the Managing Committee of the Chamber specifically providing in Rule 32 that the Rules can be amended only in consultation with CBA showing that they were framed in consequence of settlement with CBA. In presence of such specific provision in the Rules, the respondent cannot curtail or take away the rights of the workers unilaterally through the impugned internal memos/circulars.

18. The Secretary of the respondent, admitted in his cross-examination that an industrial dispute was pending before the Area Conciliator and no intimation was given to him regarding the internal memos challenged in the grievance application. Section 40 ibid, inter alia, provides that during the pendency of proceedings before a Conciliator, no employer shall alter to the disadvantage of workers the terms and conditions of their service. On this ground also the impugned internal memos/circulars are not sustainable.

19. Learned counsel for the respondent lastly argued that the grievance notice and consequently the grievance application were time-barred. According to him, the memos are dated 28-05-2003 and 30-06-2003, and the grievance notice was given on 28-07-2003 i.e. beyond thirty days of the first circular. In this regard it may be pointed out that the plea of limitation was not taken before the Labour Court. There is also nothing to show that the memos were served upon the workers. Moreover, the effective date of both the memos affecting rights of the appellants and giving them cause of grievance was 01-07-2003, while the notice was given on 28-07-2003 which was well within time. There is, therefore, no force in the contention of the learned counsel.

20. In view of the above, the impugned judgment of the Labour Court is set aside. The appeal and consequently the grievance application of the applicants is allowed and the impugned circulars/internal memos, being without lawful authority, are set aside. HBT/5/SLT Appeal allowed.