P L D 1988 Lahore 584 (PLP)

The petitioner, Mushtaq Masih son of Sarni, has moved this Constitutional petition praying therein that the impugned order dated 30‑5‑1988 (Annexure 'A') passed by the learned Punjab Labour Appellate Tribunal Lahore, may be declared without lawful authority and of no legal consequence.

2. The petitioner was employed in the service of Municipal Corporation, Rawalpindi as a Sewerman at a monthly pay of Rs.799. He was dismissed from his service on 6‑8‑1986 on the ground of insubordination by respondent No.2. The petitioner went in appeal before the Mayor, Municipal Corporation, Rawalpindi, under the rules, which was however, rejected. Later on the petitioner filed a review petition before the reviewing authority 'which too was dismissed by the Director Local Government, Rawalpindi. After having failed before the departmental authorities, the petitioner sent a grievance notice under section 25‑A of the Industrial Relations Ordinance, 1969 through registered A.D. However, no action was taken on the grievance notice of the petitioner. The petitioner, thereafter moved a grievance petition under section 25‑A of the Ordinance before the learned Presiding Officer of the Punjab Labour Court No.VI. Respondent No.2 contested the grievance petition by filing written statement wherein number of preliminary objections were also taken. It was pleaded by respondent No.2 that the provisions of I.R.O. 1969 are not applicable to the case in hand and that the case of the petitioner is not covered by the definition of a workman. Another objection was that the grievance notice of the petitioner was apparently barred by time and as such it was requested that the grievance petition may be dismissed. It was also averred that the grievance notice has not been addressed to the competent authority. The last preliminary objection was that the petitioner is a dismissed employee and as such his application under section 25‑A of the Ordinance is incompetent on the face of it. The learned Labour Court recorded the statement of the petitioner as P.W.1 and similarly the statements of Inamul Haq R.W.1 and Ghulam Muhammad R.W.2 were recorded. The learned Labour Court after considering the entire evidence available on record and hearing the learned counsel for the parties, accepted the grievance petition vide his order dated 9‑3‑1988. He directed that the petitioner shall be reinstated to his service with back benefits. This judgment of the learned Labour Court was assailed by respondent No.2, Municipal Corporation by filing an appeal under section 37(3) of the I.R.O. 1969 before respondent No.l. It may be noted that respondent No.2 did not take the specific ground that the grievance notice under section 25‑A of the Ordinance was not addressed to the Mayor, Municipal Corporation. The learned Punjab Labour Appellate Tribunal on 30‑5‑1988 came to the conclusion that the petitioner was dismissed from his service by the Mayor of the Municipal Corporation and that the grievance notice was not addressed to him by the petitioner, therefore, he proceeded to set aside the impugned judgment of the learned Labour Court. Consequently, the appeal of respondent No.2 was accepted.

3. Learned counsel for the petitioner argued that the objection that his grievance notice was not addressed to the Mayor Municipal Corporation was never taken in his written statement by the respondent before the learned Labour Court. On the contrary, the objection taken was that the petitioner was dismissed from his service on 6‑8‑1986 and that he could send a grievance notice to his employer till 6‑11‑1986. It was admitted in the preliminary objection No.3 that the grievance notice was sent after the limitation period was over and that the said grievance notice is, therefore, time barred. It is next argued that the petitioner works in the establishment which establishment is being run and controlled by the Health Officer of the Municipal Corporation. Learned counsel for the contesting respondent submitted that the judgment of the learned Labour Appellate Tribunal is based on law and that it is established that the petitioner did not address his grievance notice to the Mayor who was his employer under the law. In that behalf, the learned counsel has placed reliance on the provisions contained in section 25‑A of the I.R.O. 1969.

4. I have heard the learned counsel for the parties and have perused the record. To begin with, it is established beyond doubt that respondent No.2 conceded in the written statement that the petitioner had sent a grievance notice but the same was given to the concerned authority after the expiry of the period of limitation. Preliminary Objection No.3 of the respondent No.2 amply demonstrates that the said respondent has admitted the fact of sending of the grievance notice. However, the objection of respondent No.2 was that the grievance notice has become timebarred. The respondent, therefore, at this stage cannot take a turn and take the plea that no grievance notice has been sent to his employer. Even otherwise, this point was never taken and argued by the respondent No.2 before the learned Presiding Officer of the Labour Court. The learned Labour Court while acting in accordance with the provisions contained in subsection (5) of section' 25‑A of the I.R.O. 1969 considered the entire evidence of the parties and passed the order which in my view is a just and proper order. The learned trial Court also held that the petitioner was not given an opportunity of being heard while holding an enquiry against him. Neither the statement of the petitioner nor those of his witnesses were recorded by the Enquiry Officer. This aspect of the case too was considered by the learned Labour Court. Therefore, for all intents and purposes the judgment of the learned Labour Court is an exhaustive judgment and was passed justly and properly. The learned Punjab Labour Appellate Tribunal did not at all consider the evidence in the case and its judgment is based on mere conjectures and surmises. There is no evidence available on record to show that the petitioner did not send any grievance notice as required by law. Rather, it is conceded by respondent No. 2 that a grievance notice was sent by the petitioner. It can, therefore, be safely assumed that in fact the grievance notice under section 25‑A, was addressed to the Mayor, Municipal Corporation, the employer of the petitioner. It is nowhere said that the petitioner did not at all send the grievance notice to the Mayor, Municipal Corporation. It is admitted that the petitioner filed an appeal which was rejected by respondent No.2 and thereafter his review application was also dismissed by the Director Local Government. The fact that the petitioner instituted an appeal before the Mayor, his employer, shall be deemed to be a grievance notice under section 25‑A of the Ordinance. In so many words, this appeal/petition moved by the petitioner before the Mayor, Municipal Corporation could be taken as a grievance notice as required by section 25‑A of the I.R.O. A 1969. It is admitted that the appeal of the petitioner was rejected by the Mayor, therefore, it is crystal clear that the requirement of law under section 25‑A in sending a grievance notice to the employer has been complied with adequately. This point in the case was not at all considered by the learned Appellate Tribunal. Even otherwise, the objection of respondent No.2 is too technical an objection which has not advanced the ends of justice. This can hardly be a ground for the acceptance of the appeal by the learned Appellate Tribunal. This is well‑settled that law favours adjudication of disputes between the parties on merits rather than their decision on technicalities alone. It is established that the petitioner was dismissed from his service without any legal justification. In enquiry proceedings he was not allowed an opportunity to defend himself. The learned trial Court has given a categorical finding that enquiry was not conducted properly and therefore, the result of the enquiry was rightly ignored. The purpose of sending a grievance notice to the employer is that the aggrieved employee may be given an opportunity of hearing. In other words the order passed against the worker might be reconsidered keeping in view the evidence available on record. The provisions contained in section 25‑A of the I.R.O. 1969 have been complied with ' in letter and spirit by the learned Presiding Officer of the Labour Court and the, learned Appellate Tribunal has in fact failed to follow the mandatory provisions contained therein. It is true that the learned Appellate Tribunal while hearing an appeal under section 37(3) of the Ordinance, shall have the same powers which powers have been conferred by the Ordinance on the Labour Court, however, the learned appellate Tribunal cannot go beyond the pleadings of the parties. It is clear from the record that in. the case the learned Appellate Tribunal has brushed aside the admitted position of the case and has proceeded to pass an order which is not at all based on any evidence on the record. Even otherwise, there is absolutely nothing on the record to show that some prejudice has been caused to the respondent ,No.2 in not specifically addressing the grievance notice to him.

5. The upshot of the above discussion is that the judgment of the learned Appellate Tribunal dated 30‑5‑1988 suffers from legal infirmities and as such the same is declared to have been passed without lawful authority. Consequently, the judgment dated 9‑3-1988 passed by the learned Punjab Labour Court No.VI, Rawalpindi is stored. This petition succeeds and is allowed with costs. A.A./M-824/L Petition accepted.