1999 PLP 242 (PLC)

This is an appeal under section 37(3), of the Industrial Relations Ordinance, 1969 against the decision, dated 31‑3‑1998 of the learned 5th Sindh Labour Court at Karachi in grievance Petition No. 185 of 1995.

2. I have heard the representative of the appellant and also the appellant himself who is present in Court. I have also heard Mr. S.S. Jehangir, Advocate for the respondent.

3. The appellant was employed as Dish Washer (Pantry‑man) by the respondent Hotel on 21‑6‑1993. Although no appointment letter has been produced in the Labour Court but the appellant himself admitted during the proceedings that he was issued an appointment letter by the respondent hotel.

4. It is submitted on behalf of the appellant that on 19‑7‑1995 when he went to the hotel and wanted to get his card punched, as a proof of attendance. He was gate‑stopped. On the other hand, the learned counsel for the respondent contended that the appellant remained absent from his duty from 19‑7‑1995 to 23‑7‑‑1995 whereupon a registered letter, dated 23‑7‑1995 was issued to him. The appellant instead of replying to that letter sent a grievance notice which was received by the respondent on or about 3rd of August, 1995. On the same day i.e. the 3rd of August, 1995, the respondent replied the said grievance notice. Having received no response from the appellant, the respondent issued another letter, dated 20th of August, 1995 to the appellant informing him about holding a domestic enquiry in the matter. The appellant was directed to appear before the Enquiry Officer on 27‑8‑1995. Instead, the appellant filed grievance petition before the learned Labour Court on 16‑8‑1995.

5. The learned Labour Court framed the following issues:‑‑ (1) Whether the application is not maintainable? (2) Whether the respondents have sent letter at the address of the applicant ? (3) Whether the applicant was victimised due to union activities ? (4) Whether the applicant is entitled to reinstate in service with full back benefits ?

6. The appellant examined himself only, whereas the respondent examined its Assistant General Manager and an Inspector from the post office concerned. The learned Labour Court recorded his finding on all the issues and ultimately dismissed the petition.

7. During the course of argument the appellant as well as his representative invited my attention to the grievance notice, dated 27‑7‑1995 on (Page 23) of the Labour Court record wherein 2 witnesses namely Khanzada and Maqsood appear to have signed the same as witnesses to the said allegations made in the said grievance notice. But, the appellant produced none of those two persons as witnesses in the Labour Court in order to prove his allegation that he was gate‑stopped on 19‑7‑1997.

8. Although the appellant has denied in his statement before the Labour Court the receipt of the 4 letters sent by the respondent but the Town Inspector of the Post Office has testified on oath that all the 4 letters (copies whereof with postal Registration Receipts are on record) were delivered at the Post Office and were duly posted to the appellant.

9. The learned counsel for the respondent at the close of his arguments submitted that the appellant was put a specific question during his cross-examination. The question and answer are reproduced as under:‑‑‑ Question: Are you prepared to resume your duty, if you are offered, with effect from today ? Answer: Since the case is pending, therefore, I will have to act in accordance with the order of the Court. Surprisingly, the appellant did not act in accordance with the Court's order, relevant portion whereof is reproduced as under:‑‑ "In the entire proceedings the respondents have not stated that the enquiry has been decided ex parte and they have terminated the service of the applicant but the respondents have stated that he is still on the roll of the respondent, therefore, the enquiry is open for the applicant, as such the respondent is directed to proceed with the enquiry and the applicant is also directed to appear before the Enquiry Officer, if he so desires. " .

10. The appellant was given a suggestion urging cross‑examination that he has been working somewhere else and was no more interested in the employment. The appellant denied the said suggestion. I felt inclined to ask the learned counsel for the respondent if he was still ready to re‑employ the appellant but before doing that I asked the appellant if he was employed elsewhere to which he replied that he was serving in K.G.C. (Karachi Gymmkhana Club).

11. Although agreeing with the findings of the learned Labour Court on issues Nos.2 to

4. I would like to record my disagreement about the finding on issue No.

1. It is observed for the guidance of the Labour Courts in general, that the grievance petition should not be held "inadmissible and not maintainable", as held by the learned Labour Court, while deciding issue No.1 as to maintainability of the application, simply because the same was not attested by the oath Commissioner or C.O.C. Clerk of the Court. The primary purpose of the legal formalities is to safeguard paramount interest of Justice; mere technicalities, unless offering insurmountable difficulties, should not be allowed to defeat the ends of justice. It was the duty of the C.O.C. to point out the defect to the party at the time of presentation of the petition or the Court should have taken the objection at the time of its admission. No party should be made to suffer because of any wrong act or omission of an officer of the Court. So long as the defect can be cured without any difficulty. If any authority is needed for the same, recourse may be had to Jameel Ahmed v. late Saifuddin (1997 SCMR 260) and Muhammad Hanif and others v. Muhammad and others (PLD 1990 SC 859).

12. After perusal of the record and proceedings of the case before learned Labour Court and having considered the arguments of Representative and the counsel I have come to the conclusion that the appellant's allegation that on 19‑7‑1995 he went to attend his duty, but he vas gate‑stopped and his card was not punched, does not seem to be correct. Had it been so, he must have produced the two witnesses named in the grievance notice itself, which he deliberately failed. The allegation remained unsubstantiated by any evidence and so remained unproved.

13. As to the allegation that his alleged termination of service was due to trade union activities is entirely baseless, as admittedly he was holding no office in the union and was not even an active member of the union.

14. In result, I find no force in the appeal which is dismissed. H.B.T./247/Lb.S Appeal dismissed.