1987 PLP 298 (PLC)

Mushtaq Ali Tahirkheli for Appellants. IBRAHIM MAHMOOD (CHAIRMAN).‑‑This is an appeal from the order, dated 11‑1‑1980 ?assed by Mr. Aziz Ahmad, Learned Member‑II rejecting the preliminary objection raised by the appellant regarding maintainability of the complaint of unfair labour practice filed by the respondent Ghulam Rabbani, against the appellants under section 15(1)(d) of the Industrial Relations Ordinance, 1969. Briefly, facts are that the respondent Ghulam Rabbani was employed as a Senior Jungle Munshi, in the Forest Development Corporation, Sarhad, Mansehra by appellant No. 2 Shoukat Ali Khan under office order, dated 19‑12‑1978. He was promoted on 3‑3‑1979 as Supervisor, but six months later on 8‑9‑1979, his services were terminated by office order No. 72 as "no longer required". According to the appellants, although the termination order was delivered to the respondent, he failed to give any grievance notice under section 25‑A of the Industrial Relations Ordinance, 1969. But according to the respondent, the termination order was delivered to him on 19th May, 1980 and that soon thereafter on 28‑5‑1980, he filed the complaint of unfair labour practice against the appellants praying for his re‑instatement. It was pleaded in the complaint that his services were terminated because he took active part in the promotion and formation of a trade union, which was subsequently registered on 16‑12‑1979 as Forest Development Corporation Staff Union, of which he was elected as its first President. That this fact came to the knowledge of the appellants through report submitted by the Deputy Forest Manager, Jabori, dated 8‑1‑1980 to the Forest Manager, Forest Development Corporation Mansehra reporting that respondent Ghulam Rabbani was noticed to be indulging in union making activities and that he was removed from services on that account. The learned Member‑II after recording preliminary statement of the respondent on 28‑5‑1980 took congnizance of the case and summoned the appellants who submitted their written comments raising preliminary objections to maintainability of the complaint and jurisdiction. The objections were heard and dismissed by learned Member by the impugned order, dated 11‑11‑1980. The present appeal is from the said order. We have heard Mr. Mushtaq Ali Tahirkheli, Advocate for the appellants and Malik Mehrban Labour Representative on behalf of the respondent. Malik Mehrban submitted that the present appeal is no competent under section 32‑D(1) of the Industrial Relations Ordinance, 1969 contending that the impugned order was not a "decision", a mentioned in that section. He referred to the case of Capt. Abdu Wajid. Administrative Officer, Adamjee Paper & Board Mills, Nowsher v. Sher Muhammad and others 1980 P L C 800(u). in which it was he that an order acquitting the accused was not a "decision" under the said section. However, it is not necessary to deal with this objection of Mr. Mehrban as we are dismissing the appeal on other grounds.

3. The main submission of Mr. Tahirkheli advocate for the appellant is that the learned Member‑II had no jurisdiction to entertain the complaint of unfair labour practice filed by the respondent as being in effect and substance an application for redress of individual grievance under section 25‑A of the Industrial Relations Ordinance. 1969, it was not maintainable, because the respondent had failed to comply with its mandatory provisions as he had failed to serve the required grievance notice, or even approach the Commission within the period of limitation prescribed thereunder. He referred to a number of reported decisions in support of his submission that if a worker fails to give a grievance notice or follow the procedure prescribed under section 25‑A of the said Ordinance within the time therein mentioned, the Court will have no jurisdiction to entertain his application for redress of individual grievance. Karachi Development Authority v. Presiding Officer, II Sind Labour Court, Karachi and 2 others P L D 1975 Kar. 716, Karachi Shipyards and Engineering Works Ltd. v . Second Sind Labour Court and 2 others P L D 1975 Kar. 719, The .Manager Khewra Salt Mines, Khewra v. The Mines Employees and Labour Union, Khewra and others P L D 1976 Lah. 601, District Council Sargodha v. Sher Muhammad 1980 P L C 426 and Khalilur Rehman v. The State 1978 P L C

586. We have considered this submission but we find no substance in the same.

4. The application filed by the respondent was not an application for redress of individual grievance under section 15‑A of the said Ordinance but was a complaint of unfair labour practice specified under P section 15(1) (d) thereof allegedly committed collectively by the appellants although it also prayed for his re‑instatement. Under section 22‑A(8)(g) of the Ordinance, it is function of the Commission to deal with it, in the manner laid down under section 25‑A of the said Ordinance. Regulation 32 of the N.I.R.C. (Procedure & Functions) Regulations, 1973 also required the Commission to deal with cases of unfair labour practice falling under section 25‑A in the manner laid down therein and, under the proviso thereto, the Commission while awarding punishment under section 53 may also direct the re‑instatement of a worker and allow consequential benefits to him. Regulation 33(2) of the N.I.R.C. (Procedure & Functions) Regulations, 1973 also requires the Commission to follow the procedure laid down for the Labour Court under section 25‑A of the Industrial Relations Ordinance, 1969, while dealing with the case based on allegation of unfair labour practice for redress of individual grievance. The manner and the procedure to be followed by the Commission in dealing with a case of unfair labour practice falling under section 25‑A is laid down in subsection (5) of section 25‑A of the Ordinance, namely the Commission shall have to go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case. The powers of the Labour Court may also be exercised by the Commission as mentioned in section 22‑B(3)(a) of the Ordinance and this would also include ordering re‑instatement .

5. Since the respondent's application was not an application or redress of individual grievance under section 25‑A as such, the failure to give a grievance notice or approach the Commission within the prescribed period of limitation, are riot relevant and dill not deprive the Commission of jurisdiction to deal with the allegations of unfair labour practice resulting in the alleged unfair termination of his services the cases cited by the learned counsel for the appellants are distinguishable or they did not relate to cases of unfair labour practice but to the cases of individual grievance as such and to non‑compliance of the procedure of section 25‑A of the Ordinance, by worker, which deprived the Court of jurisdiction.

6. Learned counsel for the appellants also submitted that the learned Member erred in holding that a prima facie case was made out against the appellants. Further that he erred in entertaining the complaint in spite of delay of eight months. These submissions deal with the merits of the case and not to maintainability of the application as such. Therefore, he did not permit the learned counsel to raise these submissions before us, as the same submissions may be raised before the learned Member.

7. There is no merit in this appeal. Accordingly it is dismissed. M.Y.H./4999/Lb????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.