1990 PLP 545 (PLC)

This judgment will dispose of the captione4 two petitions filed under section 25‑A of the I.R.O. as similar questions of fact and law are involved herein and the learned counsel appearing for the parties adopted most of their arguments advanced in one petition for disposal of the other.

2. In their five paragraphed petitions (in each case) grievance of the petitioners briefly is that they were reinstated in service vide Office Orders (No.101 in case No.9 and No.208 in case No.10, respectively) dated 4‑3‑1989, and they were taken on the strength of the respondent/Corporation with immediate effect. The orders had been passed on the basis of a telephonic order dated 2‑3‑1989, of the Provincial Minister for Transport, conveyed through the Secretary P.R.T.C., Lahore. But the respondents (ICY District Manager in one case and District Manager Urban Sector 1‑8, in the other) has "now orally told that he has passed an order dated 5‑3‑1989, terminating the services of the petitioners". But no copy of that order has been communicated to the petitioners so far and the petitioners have served the prescribed grievance notice under the registered cover to the respondent. "The oral order of termination of service" was assailed on the grounds of being illegal, without any reason, having been passed without opportunity of hearing and on the ground of being politically motivated. It has been prayed that the respondent be directed to cancel and set aside Office Order (No.PA/DM/89/787, dated 5‑3‑1989 in case No.9 and Office Order No.SPL‑1/89, dated 5‑3‑1989 in case No.10, respectively) with all consequential effects and to retain in service or reinstate the petitioners in service with full/back benefits.

3. Both the grievance petitions were filed in this Court by Raja Muhammad Changaiz Khan, General Secretary, National Workers Union (C.B.A.) on 7‑3‑1989.

4. The respondents were sent notice of these applications and that of the order passed by this Court on 9‑3‑1989, suspending the operation of the impugned orders dated 5‑3‑1989. The respondent joined the proceedings and filed their written statements, raising preliminary objections that no grievance notice under section 25‑A of the I.R.O. had been served on the respondent and thus the petition is liable to be dismissed. Secondly, that the petition here before this Court was pre‑mature and liable to be dismissed. Thirdly, the so‑called office order dated 4‑3‑1989, whereby the petitioners were stated to have been reinstated on the orders of the Provincial Minister for Transport, conveyed through the Secretary P.R.T.C., Lahore, is a fake and bogus order and it was never communicated to the respondent Managers. Fourthly, the petition has not been signed by duly authorised person and thus liable to be dismissed. On merits, the settlement dated 22‑10‑1988, between the parties was admitted but it was asserted that another agreement or settlement was entered into between the parties on 8‑2‑1989, and hence the earlier settlement dated 22‑10‑1988, "lost its life". It was also asserted that since Office Orders dated 4‑3‑1989, were forged, hence, the respondent/Management had got criminal case registered against the miscreants, under section 420/468/471 P.P.C. with Police Station I‑9, Islamabad. It was also stated that the office orders dated 5‑3‑1989, were rightly issued by the Managers giving the reasons and the causes for not implementing the office orders dated 4‑3‑1989 (referred to above).

5. In both cases, parties produced oral as well as documentary evidence duly exhibited on files of the cases. As there were similar questions at issue, cross‑examination on the witnesses produced by the adverse party, is almost the same.

6. I have heard arguments at length, which continued for two dates of hearing and gone through the record very carefully; reaching ultimately the conclusion that both these petitions are liable to be dismissed for variety of reasons, some of which are recorded below:‑ (i) Mandatory Grievance notice not proved‑to be served.‑‑The petitioners relied on the copy of the grievance notice, they sent to the Management on 5‑3‑1989, through C.B.A. Union by the petitioners and also the postal receipts (exhibited on the files of the two cases). But these are not registered acknowledgement due receipts. Learned counsel for the respondents argued that service of grievance notice was sought to be proved through ordinary postal receipts but in a case like the one in hand when respondent categorically and vehemently denied the service of grievance notice (in their written statements and also in their statements on oath before this Court) then the law declared requires a different and more positive mode of proof by the petitioners. In the present case, it will be seen that none of the petitioners is stated to have got the grievance notice registered from the Post Office nor does the postal receipt contain the name of the sender and in a case like this it was held by the Punjab Labour Appellate Tribunal in the case of Abdur Rauf Khan v. United Bank Ltd., reported in 1985 P L C 605 that service of grievance notice, in the circumstances was not established. It may be mentioned that in the reported judgment, even the Postman was produced by the workmen (petitioners) but the learned Appellate Tribunal was of the view that this only proved that an envelope was delivered but it could not be said that it contained the grievance notice. Order of the Punjab Labour Court dismissing the petition on the sole ground that service of grievance notice was not established, was upheld by the learned Appellate Tribunal. Secondly, in a situation when the service of grievance notice is denied by the employer then the onus to prove the service of grievance notice is on the workman as was held in 1980 P L C

373. Then yet in another case reported in 1987 P L C 410 in the case of Fetahul Qadeer v. Messrs Jamila Spinning and Weaving Mills, Karachi it was held that when mandatory grievance notice is not proved to have been served by the dismissed worker upon the employer, then a grievance petition under section 25‑A of the Ordinance before Labour Court was not maintainable. In both the grievance petitions herein before me, the Managers appearing for the respondents have made statements on oath that they were never served with any grievance notice by the petitioners and on the other hand, we have the bald statement of Muhammad Idrees, Assistant General Secretary, who has deposed that the petitioners sent grievance notice Ex.P.5, through the C.BA. which was registered and the postal receipts are Ex.P.6 and Ex.P.7. It is not known who registered that envelope as none of the petitioners has appeared in Court and it will be seen from the photostat copies of the "grievance notice" dated 5‑3‑1989 on the record that these bear the stamp and signatures of Raja Changaiz Khan Secretary General C.BA., who has not appeared in the Court to verify that notices were sent. (ii) The petitions are pre‑mature. The position admittedly is that the petitioners feel aggrieved of the "oral order" dated 5‑3‑1989, and against this they allegedly sent grievance notice on 5‑3‑1989, and the present petitions were filed on 7‑3‑1989. Learned counsel for the respondent argued that under the provisions of section 25‑A of the I.R.O., if the grievance notice is given by the C.BA., then the Management has to give a reply within seven days and it is only after that (if the worker still feels dissatisfied) he can file a grievance petition before a Court. But in this case the grievance petitions were filed in Court on 7th of March, 1989, whereas it could not have been filed before 12th of March, 1989, and thus liable to be dismissed being pre‑mature. Learned counsel for the petitioners conceded that in the present circumstances, the grievance petitions before the Court should have been filed after seven days but while relying on 1984 P L C 582 and 1980 P L C 568 (a), submitted that the petitions could not be dismissed on this ground. It was argued that the only course open to the Court was either to keep the petitions pending or return these to the petitioners for refiling after lapse of due period of time. I have gone through these reported judgments of the learned Labour Appellate Tribunal, Sindh and Punjab, wherein it has been held that the petitions filed before the expiry of the time fixed for reply by the employer cannot be dismissed as pre‑mature because when the notice has been served then it does not matter when it would mature i.e. a few days after filing the grievance petition in the Court or when the respondents have appeared in Court. But unfortunately these judgments do not help the petitioners' case because here the grievance notice is never going to mature as I have already held that no grievance notice is proved to have been sent or at least served upon the respondents till today, i.e the final disposal of the petition. The question of maturity of the petition is to be considered only when the service is proved or admitted. So these petitions which were filed prematurely and have remained immature throughout the proceedings, are liable to be dismissed on this ground as well. (iii) The petitions having not been duly signed are not entertainable. Under section 25‑A (10) of the I.R.O., a separate application by each individual workman either by himself or through his Shop Steward or Collective Bargaining Agent, is envisaged. But when the number of workers have identical or similar grievance, they are entitled to make a joint application for grievance arising out of common cause of action, provided that such a joint application must be sent by each individual or be made on behalf of all by their Shop Steward or by their Collective Bargaining Agent. This is so laid down in the Judgment of Labour Appellate Tribunal Sindh, in 1980 P L C

373. What we have herein these cases is that the grievance petitions as well as accompanying affidavits are signed by Raja Muhammad Changaiz Khan, who is the Secretary General, P.R.T.C., National Workers Union, C.BA.. Islamabad. None of the petitioners has signed the petitions and Raja Muhammad Chengaiz Khan. the Secretary General of the C.BA., has not appeared in Court. The special power of attorney by the petitioners, in favour of the C.BA., for giving grievance notice and filing grievance petitions, appeals and revisions, are neither dated nor attested by Oath Commissioner nor any of the Workers/petitioners has appeared to say that he had signed the special power of attorney authorising the C.BA., to file the cases on their behalf. So, in the absence of any evidence that this special power of attorney was executed, it cannot be said that it was really and in fact executed and certainly not in favour of Muhammad Idrees, Assistant General Secretary, C.BA., who has appeared in Court as a witness but has not signed the petitions as the special attorney of the petitioners. (iv) Non‑appearance of any of the petitioners and the person who had signed the petitions, as witness in this Court, would have another adverse effect on the petitioners' case that it is a case of no evidence. Only the duly authorised persons can and should take stand in the witness‑box to narrate the true and actual story.

7. The learned counsel for the petitioners submitted that he had come before this Court seeking redress under the provisions of section 12(3) of the (Standing Orders) Ordinance. For facility of reference it is reproduced hereunder:‑ "(3) The services of a workman shall not be terminated, nor shall a workman be removed, retrenched, discharged or dismissed from service, except by an order in writing which shall explicitly state the reason for the action taken. In case a workman is aggrieved by the termination of his service or removal, retrenchment, discharge or dismissal, he may (take action in accordance with the provisions of) section 25‑A of the Industrial Relations Ordinance, 1969, (XXIII of 1909), and thereupon the provisions of the said section shall apply as they apply to the redress of an individual grievance."

8. Learned counsel submits that firstly the reasons given in the order dated 5‑3‑1989, for cancelling the order dated 4‑3‑1989, are false and fake. Secondly, that the order dated 5‑3‑1989, was not communicated to individuals. Inconsistency in the arguments is quite evident. Firstly, none of these grounds has been taken either in the so‑called grievance notice or in the grievance petition before this Court. Secondly, if it was an "oral" order then how can it be urged that it has not been communicated to all the petitioners and the reasons given therein are bogus, fake and incorrect. To proceed further, we have to revert to section 25‑A of the I.R.O. which entitles only a workman to bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force. This is a right given to a worker or workman against his employer. Are the petitioners workmen or workers? Answer is no. They have no locus standi to file these grievance petitions. Reason is that they claim to be reinstated in service on the basis of a telephonic message sent by the Secretary P.R.T.C., to the District Managers here, under the orders of the Provincial Minister for Transport, Government of the Punjab. The Secretary P.R.T.C., Lahore and the District Managers here in Islamabad, have appeared as witnesses for the respondent in this Court and have given sworn testimony to the effect that this message was never communicated to them nor did the Minister of Transport give any orders to reinstate the petitioners. It will be seen that the order dated 4 3‑1989, which the petitioners claimed to be their Magna Carta, the original of that has not been produced and the petitioners have not proved either that it has been destroyed. The District Managers have denied having signed the orders dated 4 3‑1989, and in case of one of the District Managers namely Iftikhar Ahmad Khan, I took his specimen signatures and compared it with the photostat copies of the so‑called order of reinstatement and I find that these are not the signatures of the District Manager. Whereas on the order dated 5‑3‑1989, this District Manager has surely signed because these are his signatures.

9. Case of the petitioners has been mainly argued on the basis of clause 11 in the Settlement dated 22‑10‑1988. This clause reads as under: It was submitted that since the respondent/Management did not reinstate the workers whose names are mentioned in the list, hence, the C.B.A. took up the matter with the Provincial Minister for Transport on 8‑2‑1989, and an agreement (Ex.R.2) was reached on various demands of the workers, including the one of reinstating the petitioners. It was submitted that it was in pursuance of this agreement dated 8‑2‑1989, entered into between the C.BA. and the Minister of Transport that the Minister ordered the Secretary, P.R.T.C., to have these workers reinstated which was done through the office orders dated 4‑3‑1989, but on the very next day, the respondents changed their orders under some pressure. The argument unfortunately, proceeds on too many assumptions. To begin with Management denied that any list of dismissed workers was presented on 22‑10‑1988. But even if that be an incorrect statement (as urged by the learned counsel for the petitioners) then the petitioners too have not placed on record the list of any dismissed workers who were to be reinstated under clause 11 of the agreement dated 22‑10‑1988. It was from that list alone from which it could be ascertained if the respondent/corporation was to consider the reinstatement of all or any of the petitioners who are before me. So, we have no means of knowing if the resettlement or reinstatement of the petitioners was the subject‑matter of Clause 11 of the said Settlement. Weakness of the argument becomes more clear if we go through the "Muahida" (Ex.R.2), entered into between the C.B.A. and Minister of Transport. There is no mention of the reinstatement of any worker in the nine clauses enumerated in the "Muahida" So, if a matter is not on the Agenda and it has not been agreed then how is it possible that a Minister would go out of the terms of the agreement and verbally instruct Secretary of the P.R.T.C., Corporation, to reinstate about forty people. The so‑called reinstatement orders have too many details about names etc., to be memorized even by Minister for Transport (as there was no list) and impossible to be communicated through telephone in one go. Even if there was some "telephonic order of reinstatement" there had to be a follow up with an order in writing. But there is none.

10. I have no reason to disbelieve the witnesses from respondent managerial staff when. they say that no such order was received or communicated from Lahore. Then it will be seen from cross‑examination that these witnesses were suggested time and again that the order of reinstatement dated 4‑3‑1989, was cancelled for false reasons on 5‑3‑1989, due to pressure from "above", and instructions from "him" and due to "higher interference". The learned counsel for the petitioners Mr.Warraich was asked as to why was he keeping every body on tenter hooks and not coming out clearly as to who was "him", "higher" and "high" "above". Because after the Provincial Minister of Transport, there was hardly anything left as "above", "high" etc. in this matter. It was then that the learned counsel for the petitioners suggested to Mr.Najam Hussain Malik, Secretary, P.R.T.C., (RW 1 in case No.9 of 1989) that first the Transport Minister passed the reinstatement order Ex.P.1 and then he himself pressurized the Secretary, P.R.T.C. to withdraw these orders. So, finally the cat was out of the bag and the petitioners' case at least came into the ambit of understanding that they were reinstated by the Transport Minister but then for some unknown reasons he changed his mind and instructed the Secretary, P.R.T.C., to pass down the orders (to District Managers) cancelling the order of reinstatement. If that be the case then this situation like many others, which our country is facing internally and externally, may have a political solution but not a legal solution in a Labour Court.

11. Another interesting feature of petitioners' case is that they claim to be `workmen' in the employment of the respondent as a result of the office order dated 4‑3‑1989, and thus, they challenge the office order dated 5‑3‑1989. But the first question to be answered is if by the office order dated 4‑3‑1989, the petitioners had in fact been employed by the respondent or were reinstated and had attained the status of workman, vis‑a‑vis; the respondent, so as to agitate the matter under section 25‑A of the I.R.O.? The answer is in the negative because it is a matter of record that some of the petitioners had resigned from their jobs and some had been dismissed as early as the year, 1976. Some of them were Badli Conductors and before their dismissal/removal or resignation, they worked on daily wages. It was argued that on coming to know of the office order dated 4‑3‑1989, they immediately assumed their duties. The learned counsel for the petitioners, may be inadvertently, used a very apt expression about this and said " Sylan nokrion per char gaye" But the fact remains, as is admitted by the P.Ws, that when any person is employed or re‑employed or reinstated as a Conductor or Driver (as most of the petitioners are), he has to deposit a certain amount of money with the Corporation and he has to undergo a medical test also. None of the petitioners admittedly made any deposit or was medically examined before they "took control" of their long lost assignments. There were no letters of appointment, issued to any of the petitioners, they did not make any deposit, they did not undergo medical test then how can it be said that they are employees of the Corporation because of order dated 4‑3‑1989, and their rights were protected under section 12(3) of the (Standing Orders) Ordinance. In nutshell, the petitioners had no locus standi to come to this Court and agitate the matter under section 25‑A of the I.R.O., because that is a protection given only to the workers or workmen who have been duly employed. These petitioners who had given up or lost their jobs years ago suddenly come from nowhere and claim to have been made aware of the office order dated 4‑3‑1989, in pursuance to which without fulfilling any of the formalities, they grab their jobs. In these petitions they have prayed not only for direction to the respondent for cancellation and setting aside of the office order dated 5‑3‑1989, but also a direction that the petitioners should be retained in service or reinstated with full back benefits. It is expected that the petitioners would realize that some of them who had voluntarily resigned their jobs or dismissed for misconduct ten to thirteen years earlier could not be granted full back benefits by this Court. Lastly, I cannot think even for a moment that the Secretary, P.R.T.C., who has put in thirty years of service and the two District Managers who were also experienced men would swear by `Allah Almighty' before this Court and tell a lie to cover up for the alleged vacillations o. the Transport Minister's mind.

12. To conclude, the two captioned petitions for the reasons given above, are hereby dismissed. AA./675/Lb.P Grievance petitions dismissed.