1989 PLP 72 (PLC)

Moosa Laghari for Appellant N.A. Talpur for Respondent. Date of hearing: 8th March, 1988. DECISION This is an appeal filed by the appellant against an impugned order, dated 12‑3‑1987, passed by the Sind Labour Court No. VI at Hyderabad who had dismissed the grievance petition of the appellant under section 25‑A, I.R.O. 1969.

2. Briefly stated the facts of the case were that the appellant claimed to have been employed permanently as Cane Inspector in the respondent mills and so to have been covered under the provisions of Standing Orders Ordinance, 1968 and that on 8‑10‑1986, he was issued a charge‑sheet on an alleged charge of serious misconduct. Further, the appellant had claimed that though he had submitted a satisfactory reply to the said charge‑sheet but, no fair, impartial and lawful enquiry was conducted against him in which he was also not afforded full opportunity to defend and that not only the charge‑sheet was time‑barred, but, also he was dismissed by an incompetent person, so being aggrieved he had served his grievance notice upon the respondent mills followed by his present grievance petition under section 25‑A, I.R.O. 1969, before the learned Labour Court.

3. The respondent mills resisted the petition mainly on the legal objection firstly that the appellant being supervisor could not come within the category of a workman. Secondly no grievance notice was served upon them and thirdly, that the grievance petition before the learned Labour Court was also hopelessly time barred. It was also finally resisted by the respondent mills that as a proper, fair and impartial enquiry was held against him in which he was found guilty of the misconduct, therefore, his services were rightly dispensed with hence, he could not maintain his grievance petition which was liable to be dismissed.

4. In support of their respective cases both the parties had tendered their evidence and they were duly cross‑examined. Thereafter, the learned Labour Court had passed the impugned order, hence, the present appeal.

5. I have heard Mr. Moosa Laghari, the learned Advocate for the appellant and Mr. NA. Talpur, the learned Advocate on behalf of the respondent mills and have also carefully perused the record and proceedings of the case. At the very outset, I would observe here that in view of the evidence brought on record of the Labour Court, it is an admitted position in the impugned order that the alleged charge of misconduct was not at all established in an improperly, unlawfully and illegally held domestic enquiry, therefore, the dismissal from service of the appellant could not be sustained and is liable to be set aside. it is also an admitted position that the respondent mills through a cogent, authentic and documentary evidence could not reasonably rebut the claim of the appellant that under the law and in view of his assertion about nature of duties, he was a workman within the mischief of Labour Law, It is an admitted position that the appellant was admittedly proceeded with in accordance with the relevant Labour Laws, therefore, at the subsequent stage, the respondent mills was barred from claiming that neither the appellant was workman nor the provisions of the relevant Labour Laws were applicable to him. I would, therefore, hold that the learned Labour Court was not correct in not appreciating this settled proposition of law. It is very crystal clear that a Clerk in the General Manager's office of the respondent mills had specifically confessed that his singatures on the copy of the grievance notice under section 25‑A I.R.O., 1969, to be served upon the employer were taken by the appellant. The evidence of this Clerk namely, Fareed Memon that he was forced to sign the said acknowledgement and or it was taken back by the appellant cannot be relied upon as it is nothing but, a tutored and subsequently developed attempt to get rid of the legal bindings by the respondent mills. There is nothing on record to prove that if the appellant had forced the said Clerk to put his signatures on an acknowledgment of the grievance notice, then why this Clerk did not report the matter to his superiors, why the said Clerk did not physically resist the forcible attempt of the appellant and why any other evidence, was not produced before the learned Labour Court in support of this assertion. In view of this position I would hold that the learned Labour Court was not at all correct and reasonable in holding that the appellant has failed to serve the mandatory grievance notice upon the respondent mills, therefore, he could not maintain his grievance petition under section 25‑A, I.R.O., 1969, Therefore, under these facts and circumstances, I would hold that the appellant did serve his grievance notice upon the respondent mills before filing of the present grievance petition before the learned Labour Court and hence it was quite legally maintainable. It is also correct that in a big industrial or commercial Unit, a workman cannot serve his grievance notice, directly in the hands of highest officer of the concern, as all such letters, applications and notices etc. are always submitted in the office of such an officer. The notice, in question, therefore, was correctly served upon the Employer, namely, the respondent mills through a Clerk of his office and it should be deemed to be a proper and valid service. In view of these facts, circumstances and legal aspects of the case, I would hold that the dismissal of the appellant from service was quite illegal and it is hereby set aside and in view of this position, I would also set aside the impugned order.

6. For the reasons discussed by me above, I would set aside the impugned order and would allow the present appeal. The appellant is, therefore, directed to be reinstated in service with full back benefits, forthwith. A.E./1283/Lb. S. Appeal allowed.