2020 PLP 72 (PLC)

ABDULLAH BALOCH, J.

This Constitutional Petition has been directed against the judgment dated 30th August, 2017 hereinafter referred as "the impugned judgment") passed by the Labour Appellate Tribunal Baluchistan Quetta (hereinafter referred as "the appellate Court") whereby the appeal of the respondent No.3 was allowed and order dated 6th June, 2017 passed by the Presiding Officer, IIIrd Labour Court, Balochistan at Hub (hereinafter referred as "the trial Court") was set aside, with the following prayer: It is accordingly respectfully prayed that this Hon'ble Court may kindly be pleased to accept the petition in favour of the petitioner and against the respondents by declaring: a) That the impugned judgment dated 30-8-2017 passed by learned Labour Appellate Tribunal Balochistan Quetta (respondent No.1) is not only illegal, improper, but is also bad in the eye of law, liable to be declared as totally lawfully authority and jurisdiction and of no legal consequences. b) That after setting aside the impugned judgment dated 30.8.2017 passed by respondent No.1 the respondent No.3 be directed to reinstate the petitioner in his service with all back benefits with effect from his removal from service till the date of acceptance of this petition by this Hon'ble Court. c) Any other relief which this Hon'ble Court may deem fit and proper in the circumstances of the case may also be awarded in favour of the petitioner."

2. Relevant facts for disposal of the instant petition appear that the petitioner filed an application under Section 41 of Balochistan Industrial Relations Act, 2010 for re-instatement of his services, with the averments that the petitioner was initially appointed in Cera-e-Noor Company, on 22nd April, 2009 as Helper on probationary basis and thereafter due to his outstanding performance his service was confirmed as permanent employee on 15th June, 2009, but due to stoppage of company's work from 2012 again opened in the year 2013, the petitioner again joined the company on the same post on 11th April, 2013. It is further averred that in the Holy month of Ramadan the petitioner went to discuss with company manager for his two brothers on vacant posts and he also agreed, but on 13th June, 2013 the respondent had become annoyed and abused him, also used to tease and torture him without lawful reasons, ultimately he was served with a charge sheet of lame allegations. That on 14th June, 2016 when the petitioner reached at company's gate on usual timing, the security guard at main gate stopped him by stating that there is ban against the entry of petitioner in the company by factory management, thereafter, the petitioner was sit at the gate for about four hours, but he was not allowed; after issuance of charge sheet he submitted his explanation in respect of allegation and with the consent of management both the parties agreed to also submit an excuse of the matter, thereafter he sent a grievance notice through counsel dated 16th July, 2016, but of no avail and the respondent set dismissed letter with reply.

3. The application was contested by the respondents by means of filing written statements wherein raised legal objections with regard to no maintainability of the application.

4. After framing of issues and recording evidence pro and contra the application of petitioner was allowed.

5. Being aggrieved the respondent No.3 assailed the order passed by the learned trial Court before the appellate Court the appeal of respondent was allowed vide impugned judgment as mentioned hereinabove in para No.1.

6. Heard learned counsel for the parties and perused the record minutely, which reveals that the petitioner was employee of the respondent No.3 during the course of his service due to misconduct he was initially issued a charge sheet by the employer, which was replied by the petitioner, being dissatisfied an inquiry was conducted by the management and the petitioner was given a fair opportunity of hearing, since he had admitted his guilt during the course of inquiry conducted by the management the petitioner was found guilty of misconduct, as such, he was dismissed from service vide letter dated 15th July, 2016. The petitioner instead of being aggrieved from the aforesaid order issued a grievance notice through his counsel Mr. Faisal Karim Ronja, Advocate on 16th July, 2016 against the order of suspended i.e. order dated 23rd June, 2016, which was also replied by the respondent No.3 on 22nd July, 2016.

7. Bare perusal of grievance notice reflects that the same was not issued against the order of dismissal dated 15th July, 2016 rather the same was issued against the order dated 13th June, 2016 wherein the services of petitioner were suspended by the management; even otherwise, the whole record is silent with regard to issuance of grievance notice against the dismissal order dated 16th July, 2016 the learned appellate Court has rightly observed that: "

9. The crucial point to decide the fate of the controversy between the parties is the grievance notice which has to be seen in the light of related provisions of law that whether any workman can serve grievance notice through counsel, which point is involved in this case. To explain the same the relevant provisions of law are necessary to be seen. The BIRA 2010 section 41(2) clearly mentions that, when a worker himself bring his grievance to the notice of employer, the employer shall, within fifteen days of the grievance being brought to his notice, Communicate his decision in writing to worker. Word "himself" used in the section has no other interpretation except workman himself and the required period to approach the Court after service of grievance notice is also limited for 15 days, the above referred section bounded the applicant/respondent to serve grievance notice by himself not through counsel. In present matter, the case was not maintainable as the grievance notice was served through counsel which is against the mandatory law. The Hon'ble High Court of Balochistan in its judgment dated 3-3-2015 reported in 2015 PLC 220, the relevant portion is as under: "(b) Balochistan Industrial Relations Act (X of 2010)

S.41

Grievance notice, issuance of

Requirements

Workers himself was bound to send grievance notice to the employer."

10. It is also worthwhile to mention here that a valid grievance petition is a pre-requisite to invoke the jurisdiction of Labour Court and grievance petition not fulfill required condition prescribed under law is not maintainable, reliance is placed on i. PLD 1980 SC 80 ii. 1980 PLC 1229 iii. 1985 PLC 1068 Another point which was made base for accepting of petition of the applicant/respondent by the Trial Court, holding that the inquiry report is totally silent with regard of penalties either major or minor. When there is an admission by a party then there is no need of formal inquiry as the applicant/respondent rendered unconditional apology, therefore, conducting of inquiry or otherwise is not material. The Hon'ble Supreme Court of Pakistan held in its judgment dated 12-3-1999 reported in 2002 SCMR 684 the relevant portion is as under: "In presence of admission of his guilt by civil servant, there was no need of holding inquiry against him." Further reliance can also be placed on: 1993 SCMR 956".

8. Since the foundation of labour cases mainly revolved around the grievance notice and without issuing of grievance notice the whole superstructure will automatically falls. Likewise, in the case in hand the petitioner has failed to comply with the mandatory requirements of law, nowhere the petitioner had issued a grievance notice against his dismissal from service, the learned appellate Court has rightly accepted the appeal of employer against the petitioner, the judgment passed by the appellate Court is neither perverse nor ridiculous to warrant interference by this Court and the case laws relied upon by the appellate Court are also relevant for just decision of the case. The petition being devoid of merits is dismissed. ZC/38/Bal Petition dismissed.