1991 PLP 754 (PLC(CS))

2. I have heard Mr. Masud Mirza, learned representative for the appellants and Mr. Raja Shams-uz-Zaman, learned Advocate for the respondent and have also gone through the record and proceedings of the case.

3. The admitted facts appear to be that the respondent was workman working with the appellants and was `Joint Secretary' of the `C.B.A.' at the relevant time. He was charge-sheeted for certain acts of misconduct and after enquiry order of dismissal was passed on 31-12-1987. Before this order of dismissal was communicated to respondent, he filed application before learned N.I.R.C. under section 22-A(8)(g) of I.R.O., 1969 who was pleased to issue a `Stay Order' on 2-1-1988. However, on the same day in the afternoon the order of dismissal was communicated to the respondent who thereafter filed an application for Contempt of Court against the appellant under section 22-C of the I.R.O. The appellant passed an order on 5-1-1988 rescinding the termination order pending the decision of the main application before the N.I.R.C. The N.I.R.C. dismissed the application under section 22-A(8) on 14-7-1988 where after the appellants revived the dismissal order of the respondent on 16-7-1988. The respondent served grievance notice upon the appellants on 22-7-1988 and failing to get any redress filed this grievance application. It may also be pointed out that the Contempt application was also dismissed by the N.I.R.C. on 5-9-1988.

4. The main ground raised by the learned counsel for the appellants is that the grievance notice as well as grievance application was time-barred as the original order of dismissal which is impugned in the grievance petition was passed on 31-12-1987 and was served on 2-1-1988. Mr. Raja Shams-uz-Zaman, however, contends that this order was admittedly rescinded by the appellant on 5-1-1988 and the respondent was taken back in service and was being paid full emoluments. Mr. Masud Mirza argues that this rescinding of the order was temporary and did not affect the original order of dismissal.

5. The word `rescind' has been defined in the Black's Law Dictionary (Fifth Edition) as:-- "To abrogate, annul, avoid or cancel a contract."

6. While this order was being dictated Mr. Masud Mirza pointed out, that in the order dated 5-1-1988 word `rescind' has not been used but the actual words are `without prejudice to the right to impugn the order dated 4-1-1988, you are restored to service as desired.'

7. Be that as it may after restoration in service the respondent ceased to have any cause of action against which he could move the Labour Court. This cause of action again revived to him on 16-7-1988, when he was dismissed vide dismissal order dated 16-7-1988 Ex. R.W. 1/2 in which reference is made to earlier letter dated 5-1-1988 and it is stated that as his petition was dismissed by the N.I.R.C. the respondent stood dismissed from service in accordance with the order, dated 31-12-1987.

8. The cause of action would accrue to the aggrieved worker either from the date order was passed or from the date when order was executed. As order was executed on 16-7-1988 this grievance notice dated 20-7-1988 therefore cannot be considered as time-barred. This contention of Mr. Masud Mirza has no force.

9. The main ground on which the learned Labour Court held the enquiry to be illegal and set aside the dismissal order was that neither charge-sheet nor enquiry papers were produced before the learned Labour Court to enable it under subsection (5) of section 25-A, I.R.O., 1969 to go into all the facts of the case while determining the grievance and pass such order which may be just and proper under the circumstances of the case. As there were no enquiry papers or charge-sheet before the Labour Court it could not go into facts whether charge-?sheet constituted misconduct as defined under Standing Orders Ordinance or whether in the enquiry sufficient evidence was produced to justify order of dismissal.

10. Mr. Masud Mirza contends, that charge-sheet and enquiry papers were produced before N.I.R.C. I find that nothing has come on the record to that effect but normally this contention appears to-be correct, as the order by the N.I.R.C. was passed on merits. However, it was for the appellant to have either summoned the record from N.I.R.C. or requested N.I.R.C. to return the original papers to them after keeping photostat copies on the record and produce the same before the Labour Court. The Party itself has failed to put the proper facts and relevant documents before the learned Labour Court and under the circumstances Mr. Mirza's request that the case be remanded back to the learned Labour Court would not be in the interest of justice.

11. I accordingly find, no merits in this appeal which is dismissed. M.Y.H/1723/Lb.S??????????????????????????????????????????????????????????????????? Appeal dismissed.