1992 PLP 1248 (PLC(CS))

This is an appeal against order of the learned Presiding Officer, Sindh 14bOur Court No. I at Karachi, dated 17-7-1990, whereby the grievance application of the appellant was dismissed. 2, The brief facts of the case appear to be that the appellant' was h0issed from service on 18-9-1985. He filed an appeal with the respondents on 5-10-1985 which remained undecided. He, therefore, filed appeal before Federal Services Tribunal but withdrew the same on 19-8-1987 and filed grievance petition before the learned Labour Court on 20-8-1987. Application of the appellant under section 65-B of the I.R.O., 1969 read with sections 5 and 14 of the Limitation Act for condonation of delay was allowed by learned Labour Court vide order, dated 17-4-1989. No appeal was or is filed against the order. Therefore, this order has attained finality.

3. I have heard Mr. Khalid Javed, Advocate for the appellant. Respondent called absent though service was held good and therefore the appeal proceeded ex parte against the respondent.

4. The application has not been decided by the learned Labour Court on merits but only on the point that the grievance notice was not given to the proper person viz. employer. The learned Labour Court has treated appeal filed by appellant as grievance notice. As it was addressed to the President of the Bank, therefore, relying on the decision of this Tribunal in the case of Raeesuddin v. Allied Bank of Pakistan Ltd. 1982 PLC 920, the learned Labour Court dismissed the grievance petition. In reported case this Tribunal had held that the grievance notice should be; served upon the employer and not upon the final appellate authority.

5. The word "employer" has been defined in section 2(viii) of the I.R.O., 1969, which reads as under:-- "(viii) "Employer" in relation to an establishment means any person or body of persons, whether incorporated or not, who or which employs workmen in the establishment under a contract of employment and includes.-- (a) ....................... (b). ....................... (c) in relation to an establishment run by or under the authority of any department of the Federal Government or Provincial Government, the authority appointed in this behalf or, where no authority is appointed, the Head of the Department; (d) . ....................... (e) in relation to any other establishment, the proprietor of such establishment and every director, manager, secretary, agent or officer or person concerned with the management of the affairs thereof."

6. No doubt the President of the Bank to which the appeal was addressed by the appellant was the appellate authority, but then it cannot be disputed that he does employ workmen in the establishment of bank and that he has such powers of employment, therefore it cannot be said, that he was not an employer as defined under the I.R.O., 1969. In the case of Altaf Ahmad Shaikh v. National Bank of Pakistan 1982 PLC 683 this Tribunal had allowed the appeal of the appellant where he had filed appeal against order of dismissal to the President of the Bank, whereafter he filed grievance petition before the learned Labour Court. In the case of National Construction Ltd. v. Muhammad Mateen Hashmi 1982 PLC 215, this Tribunal had held that Secretary to Federal Government and ex-officio Chairman of a Company, though not dealing with day-to-day affairs of the Company was covered under the definition of employer and grievance notice to such Chairman was held to be quite valid. In the case of Muhammad Ozair Qureshi v. Chairman, National Construction Company Ltd. 1982 PLC 17 this Tribunal held the appeal to the Chairman of the Corporation as valid grievance notice.

8. It may also be pointed out that the plea that grievance notice was not given to the proper person viz. the employer or that the President of the Bank was not employer was not specifically raised by the respondents in their reply statement. The question as to whether President was employer or not was a mixed question of fact and law. Therefore, it should have been specifically pleaded by the respondents in order to enable the appellant to lead evidence on that issue, In view of the above discussions, in my opinion, the decision of the learned Labour Court does not appear to be legally correct and is therefore set a aside. However, the case is remanded back to the learned Labour Court for decision on merits after hearing both the parties. M.Y.H./1774/Lb.S Case remanded.