1989 PLP 187 (PLC)

"25‑A. Redress of individual grievances.‑‑(1) A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his shop steward or collective bargaining agent, within three months of the day on which cause of such grievance arises. (2) Where a worker himself brings his grievance to the notice of the employer, the employer shall, within fifteen days of the grievance being brought to his notice, communicate his decision in writing to the worker. (3) .... ..... .... (4) If the employer fails to communicate a decision within the period worker s dissatisfied with such decision, the worker or shop steward may take the matter to his collective bargaining agent or the Labour Court, or, as the case may be, the collective bargaining agent may take the matter to the Labour Court, and where the matter is taken to the Labour Court it shall give a decision within seven days from the date of the matter being brought before it as if such matter were an industrial dispute: Provided that a who desires to so take the matter to the Labour Court shall do so within a period of two months from the date of the communication of the employer or, as the case may be, from the expiry of the period mentioned in subsection (2) or subsection (3) as the case may be. (5) ..... ..... ...... ..... (6) ..... ..... ...... ..... (7) ..... ..... ...... ..... It is quite clear from the above provisions that an aggrieved workman has to first bring to the notice of his employer his grievance either personally or through a shop steward before taking it to the Labour Court. 1f the employer failed to reply to the grievance notice of worker within 15 days of the grievance being brought to his notice, the worker could take the matter to Labour Court within next two months under section 25‑A of I.R.O. In the present case the notice of grievance was served by the petitioner personally on his employer and as such the grievance petition could be filed to accordance with the provisions contained in the proviso to subsection (4) of section 25‑A of I.R.O. Subsection (2) of section 25‑A of I.R.O. provides that where a worker himself brings his grievance to the notice of the employer, the employer shall, within 15 days of the grievance being brought to his notice comma‑irate his decision in writing to the worker, failing which the workman could take his grievance before the Labour Court within next two months in accordance with the proviso to subsection (4) ibid. It is, therefore, quite clear that the starting point of limitation for the purpose of computing the period of limitation for filing of grievance petition is A, the date on which the grievance of the worker is brought to the notice of the employer. The respondent No. 2 in his petition before the Labour Court in para. 9 categorically alleged that he sent his grievance notice to the petitioner on 10‑7 1986 but it was returned by the postal authorities with the remarks that the Managing Partner of petitioner was out of country: The petitioner in reply to the above allegations stated as follows in their reply:‑ "

9. The contents of para. 9 of the application are admitted but copy whereof was delivered by the applicant by hand." It will thus be se(,n that in so far the allegation of respondent No. 2 that his grievance notice dated 10‑7‑1986 was returned by the postal authorities undelivered on account of absence of Managing Partner of the petitioner from the country was concerned, it was admitted but it was pleaded that a copy of that notice was delivered to the petitioner by hand by respondent No.

2. It is significant that the petitioner nowhere either in their pleadings or in their evidence disclosed the date of delivery of copy of grievance notice dated 10‑7‑1986. Respondent No. 2 was also not suggested in cross‑examination the date of delivery of the copy of the said notice. In paragraph 10 of his grievance petition respondent No. 2 further alleged that as the first grievance notice dated 10‑7‑1986 was returned undelivered he sent another notice dated 22‑7‑1986 to the petitioner through registered post A/D which was duly served on the petitioner but they failed to reply. This statement of respondent No. 2 was also admitted by the petitioner in their reply with the addition that although the letter dated 20th July, 1986 (this refers to letter dated 22‑7‑1986 of respondent No. 2) was received by them but it could not be termed as a grievance notice as the earlier letter dated 10‑7‑1986 was already delivered to them. Once again the petitioner failed to mention the date of alleged delivery of the letter dated 10‑7‑1986. From the order of the Labour Court it is quite clear that original envelope containing the letter dated 10‑7‑1986 was produced by respondent No. 2 alongwith his affidavit in evidence as Annexure 'E' and on the basis of the endorsement of the postal authorities on this envelope it was argued by the learned counsel for the petitioner before Labour Court that as this envelope was returned by the postal authorities with the endorsement that Managing Partner is out of country it was quite clear that the petitioner had refused to receive the grievance notice and as such limitation at best started from 23‑7‑1986 the date of return of the letter by postal authorities. This contention of learned counsel for the petitioner before the Labour Court was quite contrary to the stand of petitioner that they were delivered a copy of the notice dated 10‑7‑1986 and as such limitation started from 10‑7‑1986. The petitioner failed to bring on record in this petition anything in support of their contention that a copy of letter dated 10‑7‑1986 was delivered by respondent No. 2 personally to the petitioner. On the contrary the evidence on record shows that the letter dated 10‑7‑1986 sent by the respondent No. 2 to the petitioner was never delivered to petitioner. It is significant that respondent No. 2 had sent a photo copy of his letter dated 10‑7‑1986 alongwith his letter dated 22‑7‑1986 which was duly received by the petitioner and as such the date of delivery of the copy of notice 10‑7‑1986 to the petitioner, in these circumstances, is the date on which !hey received the grievance letter of respondent No. 2 dated 22‑7‑1986. The learned Appellate Tribunal, therefore, rightly reached the conclusion that there was no delay in filing of the grievance petition by respondent No. 2 under section 25‑A of the I.R.O. in the circumstances of the case. In any case, it is not disputed by the learned counsel for the petitioner that the delay in filing the petition, if any, could be condoned by respondent No. 1, and B as respondent No. 1 in his order specifically condoned the delay if there was any, in filing the grievance petition in the peculiar circumstances of the case, no exception could be taken in this behalf. The next contention of the learned counsel for the petitioner is that the establishment of petitioner did not employ 20 workers at any time and as such provisions of Standing Orders Ordinance were not applicable to them. It is accordingly contended that as Standing Orders Ordinance was not applicable to the petitioner the grievance petition of respondent No. 2 which was based on violation of provisions of Standing Orders Ordinance was not maintainable. From the grievance petition of respondent No. 2 it is quite clear that respondent ‑No. 2 in para. 2 thereof alleged that the petitioner owned the press situated in Aram Bagh, Karachi, known as Babul Islam Printing Press. In reply to this allegation, the petitioner admitted that the press establishment referred to by the respondent No. 2 is on rent with the petitioner, however, they disputed that there were at any time 30 workers employed by them. It was further claimed by the petitioner that jointly taking together the total number of workers employed in their establishment never exceeded

17. It is an admitted position on record that the petitioner produced no evidence before the tribunals below or before this Court to establish the number of workmen employed by the petitioner. Since the petitioner claimed exemption from the operation of Standing Order Ordinance C on the ground that the total number of workers employed by them was always less than 20 the burden of proving such fact which would entitle them to claim such exemption was entirely on the petitioner. As the petitioner failed to prove the total number of workmen employed by them the learned Appellate Tribunal rightly held that provisions of Standing Orders Ordinance were applicable to the petitioner. It is not disputed that the respondent No. 2 had put in 30 years of service with the petitioner at the time of termination of service. It is also admitted that the termination letter served on respondent No. 2 disclosed no reason for dispensing with his service. In these circumstances, the learned Appellate Tribunal, rightly allowed the grievance petition of respondent No. 2 and directed his reinstatement in service with full back benefits. No case for interference is made out, the writ petition is accordingly dismissed summarily. S.Q./U‑37/K Petition dismissed.