1991 PLP 879 (PLC)

M. Shamsher Iqbal Chughtai for Appellant. Masud Ashraf Sheikh for Respondent. Date of hearing: 8th June, 1991. The appeal captioned above emerges from the decision dated 11-4-1990 recorded by the learned Presiding Officer, Punjab Labour Court No. 8, Bahawalpur, whereby the grievance petition of the appellant for his reinstatement in service was dismissed.

2. An objection has been raised by the learned counsel for the respondent about the competency of the appeal. The objection is that the appeal was not presented by the appellant in person and the lawyer namely Mr. M. Shamsher Iqbal Chughtai, who presented the appeal, had no authority in that behalf. The line of argument of the learned counsel for the respondent is that subsection (3) of section 37 of the Industrial Relations Ordinance, 1969 is to be read alongwith subsection (1) of section 25-A of the said Ordinance. Since according to subsection (1) of section 25-A, a grievance notice is to be given by the worker in person and the grievance petition too is to be presented in person, similarly the memorandum of appeal is also to be presented by the appellant himself. The argument has no force. Section 37 is quite separate and distinct from sections 25-A (1) and 25-A (3). By no stretch of imagination section 37(3) can be interpreted to have the same meaning as subsections (1) and (3) of section 25-A may bear. It is expressly provided in subsection (1) that the grievance notice is to be served by the worker in person. The Honourable Lahore High Court has directed, that subsection (3) of section 25-A is to be read alongwith subsection (1) and since the latter subsection says that the grievance notice is to be given by the worker in person, the grievance petition is also to be presented by the worker in person. There being no such provision in subsection (3) of section 37, it cannot be interpreted to mean that the appeals are to be presented by the aggrieved persons in person and not by their agents or lawyers. I, therefore, overrule the objection and hold that the appeal is competent.

3. So far as the merits of the case are concerned, there is no inquiry notice on the record, which shows that without issuing any notice the inquiry was held. In reality no inquiry was held since no witness was examined. Exh. R.2 is inquiry report and not inquiry proceedings. Feeling that the respondent has no case, the learned counsel for the respondent tried to defeat the appellant on other grounds. It has been argued that the grievance petition was brought in the Junior Labour Court without service of grievance notice within two months of the accrual of the grievance and since the case could not be decided by the Junior Labour Court, the appellant should have served a grievance notice after subsection (6) was deleted and the Labour Courts were authorised to decide the pending petitions. On the face of it the argument has no force. According to the deleted subsection (6) of section 25-A, there was no need of service of grievance notice if the grievance petition was brought within two months of the accrual of the grievance. Since the it was valid and after the Junior Labour Courts ceased to exist, the Labour Courts got the jurisdiction 3o decide the pending cases and by no stretch of imagination it can be said that after the deletion of subsection (6) of section 25-A, the workers h should have withdrawn the cases and after giving grievance notices brought fresh petitions. The objection, therefore, is overruled.

4. The other point raised by the learned counsel for the respondent is that the work for which the appellant was employed was given to the Agricultural Department on 1-11-1976 during the pendency of the grievance petition and a Board was created providing that it would be run by the Administrator but the Administrator was not made a party. No doubt there is a provision that an Administrator would he appointed, but no order or letter was brought on the record by the respondent to show that actually an Administrator was appointed. Unless it had been proved that an Administrator was appointed, no question of impleading the Administrator could arise. The other thing is that according to Order XXII, rule 10, C.P.C., the proceedings can be defended by the existing party unless the person upon whom any interest has devolved, comes forward.

5. The other point is that the Agricultural Department took up the assets and not liabilities, therefore, Agricultural Department is not liable to reinstate the appellant. This argument too has no force. The appellant and other workers were not party to the agreement, by which the Project was given to the Agricultural Department, therefore, any agreement made between the employer of the appellant and the Agricultural Department would not adversely affect the rights of the workers. Even if the Agricultural Department did not take up the liabilities, since the appellant was a confirmed employee of the respondent, the respondent is liable to implement the order of the Court if the appellant is directed to be reinstated in service. Since there was no privacy of contract of service between the appellant and the Agricultural Department, the appellant rightly sued the Project Director, Cooperative Karkhana Alat-e-Zari who is responsible for the wrong order of removal from service of, the appellant.

6. It has also been argued that the Agricultural Department has created new posts and the post held by the appellant is not now existing and, therefore, he cannot be reinstated in service. This argument also has no force. Since the appellant was wrongly removed from service without holding any proper inquiry and proving the charges against him, he is entitled to be reinstated in service and the Agricultural Department, as transferee of the interest, is liable to provide service and in the alternative the; respondent, who had passed wrong order of the removal from service, is liable to reinstate the appellant.

7. Since without holding proper inquiry and proving the charges the appellant was removed from service, he is entitled to be reinstated in service. However, he is not entitled to back benefits since in his statement he did not urge that he had remained without any earnings from the date of his removal from service.

8. As a result of the observations made above, the appeal is accepted and setting aside the impugned decision of the learned lower Court and the order of removal from service of the appellant, his grievance petition is accepted and he is directed to be reinstated in service without back benefits. H.B.T./739/Lb. P ??????? ??????????????????????????????????????????????????????????????????????? Appeal accepted.