1982 PLP 723 (PLC(CS))

4. Mr. Hameed M. Siddiqui, the learned counsel for the appellant, has assailed the impugned decision of the learned Labour Court on the ground that although the appellant was aggrieved by being gate‑stopped and being orally informed by the Enquiry Officer and the Manager of the factory that his services had been terminated, he had fresh cause of grievance on 8th May, 1981 when he received the written orders, dated 6th May, 1981 of his dismissal. The learned counsel further submitted that within a week of the receipt of the said written order of dismissal the appellant served the grievance notice, dated 1 4th May, 1981 upon the respondent company and as he obtained no redress from the management and its reply, dated 27th May, 1981 was negative he preferred a grievance petition to the learned Labour Court on 15th July, 1981 within two months of the reply of the respondent‑Company.

5. On the other hands, the contention of Mr. Mahmood Abdul Ghani for the respondents, was that the grievance of the appellant, as disclosed in his grievance petition, was not against the formal orders of his dismissal,' dated 6th May, 1981 but was restricted to his alleged gate stoppage and oral intimation to him by the Enquiry Officer and the Manager of the factory that his services had been terminated, and, there fore, the grievance petition should have been filed within two and a half months of the service of the first grievance notice, dated 29th April, 1981. He submitted that the second grievance notice and reply thereto should be altogether excluded from consideration as the case of the appellant, as stated in the grievance petition, was not based or founded on the formal orders of dismissal, dated 6th May, 1981 and that in his grievance petition the appellant had suppressed the fact of the issuance of the said orders. 1n support of his contention that the appellant cannot be allowed to plead a case different from that which is set up in his grievance petition, the learned counsel cited a large number of authorities, which are reported in:- (1) N L R 1981 T D 603 (2) 1981 P L C 93 (3) 1979 P L C 196 (4) 1968 S C M R 804 (5) P L D 1976 S C 469 (6) P L D 1963 S C 553

6. No doubt, in his grievance petition the appellant has not based his grievance upon the written orders of dismissal, dated 6th May, 1981. However, a perusal of the grievance petition makes it clear that his grievance was against his dismissal from service by the respondent company. That this was his real grievance is made further clear in the prayer clause of the grievance petition in which he has claimed to be reinstated in service with full back benefits. Furthermore, as already indicated, alongwith his grievance petition the appellant had filed a copy of the reply, dated 27th May, 1981 of the respondent‑Company to the appellant grievance notice, dated 29th April, 1981. In that reply, the respondent‑Company has clearly asserted that a domestic enquiry was held against the appellant and thereafter an order of dismissal was issued against the appellant in accordance with law. The respondent company having admitted the position that an order of dismissal had in fact been passed in respect of the appellant on 6th May, 1981 cannot, in my opinion, be allowed to challenge the right of the appellant workman to question that order in a grievance petition when the appellant had served the requisite grievance notice against the said dismissal order upon the respondent and had filed his grievance petition within two months of the unfavourable reply received by him from the respondent‑Company. At any rate the respondent company cannot legitimately be considered to have been prejudiced in its defence by reason of the claim of the appellant against his dismissal from service founded upon the dismissal order, dated A 6th June, 1981. The grievance petition has been signed by the appellant himself Furthermore, he was represented in the Labour Court by Mr. Kohistani; an officer of a C. B. A. who is not an Advocate and hence not familiar with the technicalities of law. In the circumstances, I am inclined to the view that the shortcomings in the grievance petition should be condoned particularly when, in their reply statement, the respondent company has asserted that a domestic enquiry was held and the dismissal orders, dated 6th May, 1981, were served upon the appellant.

7. I will now briefly refer to the various authorities cited by Mr. Mahmood Abdul Ghani in support of his contention that the grievance petition of the appellant was not maintainable.' The first authority cited by him is reported as Abdul Saeed v. Abdul Rashid Mir Prop. Kenyan Carpet Industries (N L R 1981 T D 603). In that case, in his grievance notice served upon the employer the appellant had asked for reinstatement in service with back benefits. However, in his memo; of appeal, the appellant had made claim for payment of other dues to him of which no grievance notice was served upon the employer. It was in that context that this Tribunal held that the claim for the payment of other dues was not maintainable and that a grievance petition must be founded upon a grievance of which due notice had been served upon the employer. In the present case, as already stated, the appellant had served a grievance notice upon the respondent company, challenging the orders of dismissal from service.

8. In Adamjee Industries v. Presiding Officer, Sind Labour Court No. IV, Karachi (1981 P L C 93), a learned Single Judge of the Karachi High Court did not permit the counsel for the Adamjee Industries to raise before the High Court objections as to the maintainability of the grievance petition and the validity of the grievance notice served by the workman upon the employer, on the round that these objections had not been raised before the learned Labour Court. This authority, in my opinion, has no application to the facts of the present case. In the case of Hail All Khan v. Presiding Officer, Sind Labour Court No. VII, Sukkur (1979 P L C 196), my learned predecessor did not permit the workman to raise the plea of mala, fides as it was neither raised by him in his grievance notice to the employer nor before the learned Labour Court. In the case of Choudhry Brothers Ltd. v. Jaranwala Central Co‑operative Bank Ltd., Jaranwala (1968 S C M R 804), it was established that the bill of exchange had not been accepted in writing on the bill itself, and therefore, it was sought to be established that Ch. Abdul Ghani, the Managing Director of Choudhry Brothers, had orally accepted the bill of exchange. The Supreme Court deprecated such an attempt and observed:‑ "No evidence should have been, allowed to be adduced on facts which had not been raised in the pleadings and incorporated in the issues frames. In the instant case, however, as already stated, the pleadings do show that an order of dismissal had been issued on 6th May 1981 in respect of the appellant and that the same was in fact served upon the appellant on 8th May, 1981.

9. In the case of Government of West Pakistan v. Haji Mohammad (P L D 1976 S C 469), their Lordships of the Supreme Court did not permit the Government to raise the plea that the respondent Government employee was being paid from contingencies and as such was covered by Article 179 of the Constitution of Pakistan, 1962, and was not entitled to constitutional protection as this plea was raised for the first time in appeal before the District Judge. In the instant case, the pleadings show that an order of dismissal was passed in respect of the appellant on 6th May 1981 and that was the real grievance of the appellant.

10. In the case of Budho and others v. Ghulam Shah (P L D 1963 S C 553), the Supreme Court, relying on the principle secundum allegata probata, allowed the plaintiff to rely on the alternatives ground of the wills stated to have been made by the deceased, as not only mention of these wills had been made in the plaint but a issue had also been raised as to the genuieneness of the wills.

11. On a careful consideration of the facts in the instant case and the authorities cited by Mr. Mahmood Abdul Ghani, the learned counsel for the respondent‑Company, I am of the view that as the real grievance of the appellant was against his dismissal from service, culminating in the orders of his dismissal received by him on 8th May, 1981 as disclosed not only in the reply of the respondent, dated 27th May, 1981 to the grievance notice, dated 14th May, 1981 of the appellant, but also in the reply statement of the respondent‑Company, the grievance petition E would appear to be maintainable specially as the parties I would, no doubt as to the nature of the real grievance of the appellant. Accordingly, set aside the impugned decision of the learned Labour Court and remand the case to it for decision on merits.