1992 PLP 227 (PLC)

Abdus Samad for Respondent. Date of hearing: 12th August, 1991. This is an appeal against the order of learned Presiding Officer, Sindh Labour Court No. IV at Karachi, dated 13-2-1991, whereby grievance petition of the appellant was dismissed.

2. I have heard Mr. Mirza Muhammad Kazim, learned Advocate for the appellant and Mr. Abdus Samad, learned counsel for the respondents and have also gone through the record and proceedings of the case.

3. The case of the appellant in brief is that the respondent on 18-10-1989 employed him initially for 85 days but he continued to work upto 26-2-1990 when his services were terminated without any written order. He allegedly served grievance notice upon the respondent and then f-led grievance petition before the learned Labour Court which was resisted by the respondent on the ground that no grievance notice was served and that appellant himself deserted his service.

4. The appellant has produced a copy of the grievance notice, which is Annexure `E' alongwith the postal acknowledgement receipt Exh. P-1. This contention of the appellant has been rejected by the learned Labour Court on the ground that postman was not examined to prove the service and secondly A/D slip does not bear the signature of the recipient, and thirdly that notice was not addressed to a proper employer as it was addressed to the Managing Director; whereas according to the admission of the appellant that Muhammad Moquit Qureshi, Operational Head had powers to appoint and dismiss him.

5. No doubt in the written statement the respondents have avered that they had not received the grievance notice, but the person who has signed written statement has not been examined, therefore this written statement cannot be considered as evidence. Reliance is placed on PLD 1972 SC

25. The witness who has been examined by the respondent is Mr. Muhammad Anwar, Manager Administration. In the cross-examination he has admitted that he did not know whether Managing Director had received the grievance notice of the appellant. A registered letter sent on correct address of a party by post is presumed to have been received by the addressee unless otherwise proved. There is no proof to the contrary and, therefore, I hold that grievance notice was served on the M.D. of the respondents.

6. The next question that requires consideration is whether M.D. was `employer' within the meaning of section 25-A of the I.R.O., 1969. `Employer' has been defined under section 2(viii) of the I.R.O., 1969. Clauses (b) and (c) of this subsection read as under:-- "(viii) "Employer" in relation to an establishment means any person or body of persons, whether incorporated or not, who or which employs workmen in the establishment under a contract of employment and includes

(a) . (b) any person responsible for the management, supervision and control of the establishment; (c) in relation of an establishment run by or under the authority of any department of Federal Government or Provincial Government, the authority appointed in this behalf or, where no authority is appointed, the Head of the Department; (d)............................................... (e)............................................... .................................................... Thus is view of this definition any person responsible for the management, supervision and control of the establishment would be an employer and if the establishment is run under the authority of the Federal Government then it would be authority appointed in this behalf and where no authority is appointed the head of the Department would be the employer. Mr. Abdus Samad conceded that clause (c) would not apply. Even if it applies, still M.D. cannot be considered not to be Head of the Department under clause (c) as reproduced above. The M.D. who is definitely responsible for the management and control of the establishment would be an employer under both clauses. Therefore notice served upon M.D. would be sufficient compliance under section 25-A, I.R.O I.

7. The appointment and continuance in service of the appellant upto 25-2-1990 appears to be admitted by the respondents themselves in view of Annexure R/3 produced by respondents, which is dated 1-11-1990 and which shows that appellant stopped coming on duty since 26-2-1990 and deserted his temporary employment therefore his services were terminated, No other termination order has been produced. Even if this order is taken to be a termination order still it contains an allegation of misconduct viz. desertion from duty for which the services of the appellant cannot be terminated except after an enquiry under Standing Order 15 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

8. The next question that also requires consideration is whether the appellant was workman and whether he was temporary or permanent. The workmen as enumerated under Standing Order I includes `temporary workman'. Therefore the appellant, even if he was appointed temporarily, would be a workman. He could have achieved status of permanent workman, if the employer found his work satisfactory after completion of probationary period. There is no order to the effect that his work was found unsatisfactory and therefore he had a not acquired status of permanent workman upto the time of his removal. However even temporary workman's rights are guaranteed under West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, which rights, as pointed above, had been violated. The impugned order is, therefore, set aside. The appellant is ordered to be reinstated in service within one month with full back benefits. H.B.T./1957/Lb.S Appeal accepted.