2018 PLP 10 (PLC N)

JUSTICE (R) SAGHEER AHMED QADRI, CHAIRMAN

The respondent Khurshid Ahmed during the pendency of this appeal expired, hence legal heirs of the respondent impleaded as party to this appeal as respondents Nos. 1.a to 1.d.

2. The respondent/deceased Khurshid Ahmed filed grievance petition under section 25-A of Industrial Relations Ordinance, 1969 mentioning the facts that he initially was appointed as Head Time Keeper on 07.12.2000 against a permanent post and had been performing his duties honestly and efficiently; that according to the nature and duties performed by him he fell within the category of a worker/workman under the labour laws; that he in order to attend some marriages in family he proceeded on leave after submitting the written application for the period 13.11.2001 to 24.11.2001; that after availing the leave when the respondent-deceased came back to perform his duties on 25.11.2001, Dildar Hussain Labour officer did not allow him to continue his job and was asked to submit resignation under the direction of Ch. Muhammad Sharif General Manager, the appellant; that the respondent-deceased was called in the office of General Manager with the direction to submit the resignation which he denied and was threatened for dire-consequences including the dismissal from service; that the appellant actually wanted to create a vacancy for one of their favourits; that ultimately the respondent's entry in the mills on 26.11.2001 was restricted; that later on, on the basis of fabricated and false facts a charge sheet dated 24.11.2001 issued to him by an un-authorized person; that the management on the basis of alleged absence from duties started an inquiry. The respondent submitted his reply on 30.11.2001 but he was not allowed to enter the premises to join in the inquiry and ultimately without conducting enquiry vide letter dated 13.12.2001 he was dismissed from the service; that he challenged his dismissal on the ground that no inquiry whatsoever was conducted nor he was allowed to join the same and even initiation of inquiry was by an un-authorized person who issued the charge sheet. Prayed that order dated 13.12.2001 be set-aside and he be reinstated in service with all back benefits.

3. This grievance petition was replied by the appellant-mills while raising five preliminary objections about its maintainability having been filed without any cause of action, non-impleading of proper parties to the petition as well as that the respondent did not fall within the category of worker/ workman, hence petition was not maintainable. On factual side, the appointment of the respondent was admitted, however, submitted that he did not send/ submit any application for grant of leave from 13.11.2001 to 24.11.2001. Rest of the paragraphs were replied in negative on the ground that charge sheet was never replied satisfactory by the respondent, hence after due inquiry he was rightly dismissed from the service. Prayed that grievance petition be dismissed.

4. The learned trial court recorded the statement of the respondent deceased Khurshid Ahmed as PW-1 wherein he reiterated his stand mentioned in the grievance petition while getting exhibited documents Ex.P.1 to Ex.P.9/1. He was cross-examined. He in support of his statement examined Ghulam Abbas as PW-2. Learned counsel for the respondent on 07.10.2003 closed the evidence. On behalf of the appellant-mills Muhammad Khalil Factory Manager appeared as RW-1 and stated that the respondent deceased Khurshid Ahmed remained absent from duties for ten days. Charge sheet Ex.P.7 was issued but he did not participate in the inquiry and ultimately vide proceedings Ex.R.1/1 the inquiry was conducted and inquiry report Ex.R.2 was prepared by him. Dildar Hussain Establishment Incharge appeared as RW-2 and submitted the documents Ex.R.3 to Ex.R.8/2 reiterating the stand mentioned in the written reply of the appellant claiming that due to absence of Khurshid Ahmed-respondent he was issued charge sheet and after conducting inquiry was rightly dismissed from the service. He was cross-examined and counsel for the appellant closed the evidence.

5. The learned trial court after hearing the parties vide impugned judgment dated 01.11.2004 allowed the grievance petition reinstating the deceased respondent Khurshid Ahmad with back benefits. Feeling aggrieved the appellant-mills has preferred this appeal which initially was filed before the honourable High Court, from there it was initially transferred to Punjab Labour Appellate Tribunal, Lahore and subsequently to this Tribunal at Multan.

6. Learned counsel for the appellant while relying on NLR 1985 Labour 36 titled Messrs Dandot Cement Company Limited v. Punjab Labour Appellate Tribunal and others 1988 SCMR 1676 titled Muhammad Akram Khokhar v. Administrative Officer, Lahore General Hospital, Lahore and others, 1981 SCMR 542 titled Senior Vice-President (G.M) National Bank of Pakistan, Zonal Office, Lahore v. Muhammad Javed Khan and 2 others and 1982 PLC 1007 titled Gulistan v. Sindh Labour Appellate Tribunal, Karachi and 2 others contends that as the grievance petition was not filed by respondent himself or through shop-steward as provided under section 25-A, thus the learned trial court committed illegality while entertaining the grievance petition. Prayed that while allowing the appeal, the impugned judgment be set-aside and the grievance petition filed by the respondent deceased be dismissed.

7. Conversely, learned counsel for the respondents opposed the arguments advanced by the learned counsel for the appellant on the ground that there is no rule that grievance petition be filed by the grievance petitioner himself or shop-steward. He while relying on 1994 PLC 38 titled Muslim Commercial Bank Limited, Karachi and 2 others v. Punjab Labour Appellate Tribunal Lahore and 2 others and PLD 1980 SC 80 titled Syed Muhammad Hussain v. Messrs Pakistan Tobacco Co. Ltd., and another, prayed that appeal be dismissed.

8. I have heard learned counsel for the parties and perused the records of the learned trial court minutely.

9. At the outset it is to be recorded here that although in the grounds of the appeal the learned counsel for the appellant have raised so many other grounds but learned counsel for the appellant only confined his arguments to the technical point that deceased-respondent Khurshid Ahmed filed this grievance petition in violation of subsection (4) of Section 25-A of Industrial Relations Ordinance, 1969 through an advocate, hence this grievance petition was not maintainable and the learned trial court did not consider this aspect, thus committed immaterial illegality, therefore, the whole of the proceedings are thus vitiated. Prayed that while allowing the appeal the grievance petition be dismissed. In this respect learned counsel for the appellant while citing so many other judgments specifically relied on PLD 1980 SC 80 titled Syed Muhammad Hussain v. Messrs Pakistan Tobacco Co. Ltd., and another. On the other hand as already mentioned learned counsel for the respondent opposed these arguments while relying on the judgments specifically a judgment passed by Division Bench of honourable High Court cited as 1991 PLC 899 titled Habib ul Haq v. The Sargroh Vegetable Ghee and General Mills and others.

10. I have given my conscious judicial thoughts to this proposition. If the grievance notice dated 05.01.2002 (Ex.P.7) present on the records is seen, it is signed and sent by the respondent-deceased Khurshid Ahmed himself. The grievance petition present on record also clearly indicates that it was only Signed by the respondent Khurshid Ahmed and his counsel did not sign the same, however, index to the petition shows that it was signed by Ch. Abdul Sattar advocate and first note on the order sheet also further clarifies it that said learned counsel for the petitioner presented the grievance petition before the learned trial court. It is important to note that the written reply of the grievance petition was submitted by Ch. Muhammad Sharif the appellant/ General Manager of the appellant-mills and it was presented through Riaz ul Hassan advocate, Multan. Five preliminary objections were raised in this written reply but the objection about maintainability of the grievance petition having been presented through an advocate in alleged violation of subsection (4) of Section 25-A of Industrial Relations Ordinance, 1969 was never raised. If the cross-examination on PW-1 Khurshid Ahmed deceased respondent is seen, said objection was never put to him and even two witnesses on behalf of the appellant namely RW-1 Muhammad Khalil and RW-2 Dildar Hussain in their elaborated statements never said even a single word about this objection i.e. presentation/ submission of the grievance petition through an advocate by the respondent in the light of above mentioned provision of law.

11. It is an interesting proposition at this point that on one side appellants are raising the objection that the grievance petition was filed by deceased respondent through his counsel but at the same time they not only submitted their written reply through an advocate but throughout the proceedings before the learned trial court they had been being represented by an advocate. It is now settled that nobody or any party to any judicial proceedings be not put into at such a situation/position wherein the other party may get an unlawful or improper advantage vis-a-vis the other party.

12. Learned counsel for the appellant mainly relied on judgment passed by the honourable Supreme Court of Pakistan cited as PLD 1980 SC 80 titled Syed Muhammad Hussain v. Messrs Pakistan Tobacco Co. Ltd., and another wherein a grievance petition filed on the basis of grievance notice sent through an advocate was found illegal and whole of the proceedings subsequent to that stage were declared unlawful, illegal and were set-aside. Learned counsel for the respondent, however, relied on judgment cited as 1991 PLC 899 titled Habib ul Haq v. The Sargroh Vegetable Ghee and General Mills and others passed by Division Bench of honourable Lahore High Court. There is a marked distinguishing on factual side in both of these cases as in case decided by honourable Supreme Court of Pakistan supra the grievance notice was sent by the petitioner in said case through an advocate, however, the judgment referred passed by Lahore High Court the only question was raised that the grievance petition was filed by an advocate and a learned Division Bench of High Court observed: "Where the matter is to be considered by a copy domestic forum, the representation by the worker will be through in-home agencies viz. himself, Shop Steward or the Collective Bargaining Agent but where the matter goes to an outside forum like a Court, then the parties are not to be deprived of the essential assistance of a technical person like a legal practitioner. This interpretation finds support from the very specific and clear omission of the word "himself" subsection (4) of section 25-A when read in comparison with subsection (1) thereof. Enunciation on the assumption that the two provisions being in para materia have to be read together, is not correct. The two provisions viz. subsection (1) and subsection (4) of section 25-A of the Industrial Relations Ordinance are intended to cater for different situations which are in no manner overlapping or even similar; one is intended to have the settlement of grievances within the domestic sphere whereas the other is intended to have an adjudication of a cause or lis before a forum which is in the nature of a Court".

13. It is now settled that matters between the parties are to be decided on merits rather than the technicalities. The facts present in the present case/ appeal are different than the facts present in the matter decided by the honourable Supreme Court of Pakistan whereas the facts discussed in judgment passed by the honourable Lahore High Court are similar to that of in present appeal, hence respectfully relying on the judgment by Lahore High Court the objection raised by learned counsel for the appellant is rejected.

14. As far as the other merits of the appeal are concerned although learned counsel for the appellant did not argue the same but I have gone through the judgment passed by the learned trial court wherein Paras 10 and 11 of the impugned judgment all the factual and legal aspects were discussed in detail and found that charge sheet Ex.R.3 issued by an incompetent person/authority and it was further not proved if the respondent deceased Khurshid Ahmed was ever served with any notice etc for joining the inquiry proceedings rightly and held him being worker/ workman was illegally dismissed vide impugned order dated 13.12.2001. The learned trial court in elaborate manner discussed each and every aspects of the evidence available on the records including all the documentary evidence. Hence, there are no merits in this appeal, it is hereby dismissed. File be consigned to the records room after due completion. The trial court's records be sent back immediately. MQ/9/PLT Appeal dismissed.