2012 PLC 338 (PLP)

Date of hearing: 3rd March, 2011. DECISION ALI MUHAMMAD BALOCH (MEMBER).

This appeal isagainst the judgment dated 2nd September, 2009 given by the learned Presiding Officer, Sindh Labour Court No.IV. Karachi, passed in grievance petition No.124 of 2006, whereby respondent No.2 worker has been ordered to be reinstated in service without back benefits. Since no Labour. Appellate was functional, therefore, a Constitutional Petition bearing No.705 of 2009 was filed in the High Court of Sindh Karachi, had admitted the petition for regular hearing to examine if grievance notice served on the company, as also the contractor was legal. Reliance was placed on Division Bench decision of the High Court of Sindh as reported in 2000 PLC 52 since approved by the Hon'ble Supreme Court of Pakistan in Civil Petition Leave to Appeal No. 248-K of 1999. Notice for 22-10-2009 was issued by the High Court of Sindh. On that date respondent No.2 was absent. High Court ordered substitute service of publication in the daily newspaper. This was accordingly done. In spite of publication, respondent No. 2 was absent, High Court of Sindh held service good on the respondent No.2 on 2-11-2009. In spite of lapse of more than one year, respondent No.2 has not appeared nor applied to set aside the ex parte order. Subsequently, Labour Appellate Tribunal became functional and High Court of Sindh' ordered for transfer of the case to this Tribunal, which is to be treated as appeal. This Tribunal notwithstanding ex parte order in the interest of justice, ordered service of notice of the respondent No.2 on the address mentioned both in the grievance petition as also in the impugned judgment. The Bailiff of this Tribunal has reported that the office is closed and ceased to function any more. No other address has been given by the respondent No.2 nor is he in attendance even today he is called absent. Proceedings are once gain held ex parte after service of notice through Bailiff and publication in press held good. Mr. Mehmood Abdul Ghani learned counsel for the appellant Messrs Al-Karam Textile Mills has addressed the Tribunal and also submitted written synopsis/arguments and case-laws, which have been examined. Record and proceedings show that respondent No.2 in the learned Labour Court has admitted that he has served notice of grievance, both on the appellant Textile Mills and also on one Riaz Contractor, in the grievance petition before learned Labour Court, the respondent No.2 has identified the said Riaz as Contractor during his cross-examination, which reads as under:

"It is correct to suggest that I am employee of the contractor." Respondent No.2 worker has also admitted issuance of annexure 'A' field by him issued by the Contractor. Respondent No.2 also admits regarding not raising any objection on annexure "A" and he further admits service of grievance notice upon the Contractor Riaz. Respondent No.2 further admits that Riaz asked him to join duty. Mr. Mehmood A. Ghani learned counsel for the appellant has relied to the said ruling of Division Bench of the High Court of Sindh viz. 2000 PLC 52 to the effect that, if grievance notice is served, both !on company and also on Contractor, is illegal. Thus judgment has been upheld by the Hon'ble Supreme Court of Pakistan in CPLA No.458-K of 1999. Thus grievance petition based on grievance notice served on company and Contractor makes as illegal and on this ground the grievance petition should have been dismissed by the learned Labour Court. Mr. Mehmood Abdul Ghani learned Counsel has referred to an unreported judgment passed by the High Court of Sindh in Constitutional Petition No.D-2441 of 2001 Habibur Rehman v. Sindh Labour Appellate Tribunal and others wherein the High Court of Sindh has held that if the employee is not in possession of any document to establish the employment with the company he should have led evidence of any other employee. Admittedly in the instant case, no such evidence is recorded. High Court of Sindh has held that no relationship of "employer" and "employee" had been established. The learned Counsel for the appellant management has further relied on another unreported judgment of Hon'ble Supreme Court of Pakistan in C.P.L.As. Nos.809-K to 815-K of 2005 AFTAB ALI and OTHERS v. WOODWARD PAKISTAN LIMITED and Civil Appeal No.39 of 1997 MUHAMMED SHARIF AND OTHERS v. PUNJAB LABOUR COURT No.3 AND ANOTHER, wherein judgments reported in PLJ 1973 Labour 269, PLD 1978 Lahore 704 and PLD 1976 Lahore 1169 were referred. Likewise, the learned counsel, has also referred to the case-law reported in 1985 SCMR 239 and 1987 SCMR 1463. All these judgments have been referred to by the High Court of Sindh in a case reported in 2010 PLC

635. The Division Bench of the High Court of Sindh in the case of SEAGUL, EXPORTS PAKISTAN LIMITED v. S1NDH LABOUR APPELLATE TRIBUNAL as reported in 2002 PLC 212 has also taken the same view. This view has also been taken by the Hon'ble Supreme Court of Pakistan in 1988 SCMR 1725. After perusing the evidence on record, even on merits. I am of the views that the respondent No.2 worker has admitted in his cross-examination that he is not employee of Messrs Al-Karam Textile Mills (Pvt.) Limited, grievance petition on this ground against the , establishment was not maintainable. In view of the above discussions, impugned judgment passed by the learned Labour Court No.IV, Karachi, on 2nd September, 2009 is set aside and the appeal filed by Messrs Al-Karam Textile Mills (Pvt.) Limited Karachi, is allowed. HBT/8/SLT Appeal allowed.