2002 PLP 943 (SCMR)

Qazi Muhammad Anwar, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate‑on‑Record for Respondents. Date of hearing: 9th January, 2002. IFTIKHAR MUHAMMAD CHAUDHRY, J‑‑‑Petitioner seeks leave to appeal against judgment dated 22nd November, 2000 whereby Peshawar High Court Abbottabad Bench declined to issue writ in his favour.

2. Petitioner being in the employment of Muslim Commercial Bank Limited as Cashier faced departmental proceedings on the charge of having pocketing a sum of Rs.9,323.90 deposited with him by consumers on account of telephone bills vide charge‑sheet dated 6th June, 1995. Pending proceedings arising out .of this charge‑sheet he was served with another charge‑sheet dated 15th August, 1995 on the allegation of absence from duty with effect from 11th June, 1995. Petitioner contested the proceedings and resultantly he was found guilty of misappropriating the public money, which was deposited with him on account of Telephone bills. As such he was terminated from service on 22nd May, 1996. Appeal filed by him before the next higher authority was dismissed on 30‑9‑1996. Later on petitioner preferred a grievance petition under section 25‑A of Industrial Relations Ordinance, 1969 (hereinafter referred to as the "I.R.O. ") before Labour Court, which was dismissed on 19th March, 1998. This order was challenged before Labour Appellate Tribunal, N.‑W.F.P. but the memo. of appeal was returned to him on 8th May, 1998 in view of newly‑enacted section 2‑A in the Federal Service Tribunals Act. Thereafter the petitioner instituted appeal before Federal Service Tribunal, which was dismissed by it on 23rd September 1998. The petitioner assailed the order of Federal Service Tribunal before this Court by filing a Civil Petition for Leave to Appeal. This petition was converted into appeal and disposed of with the observations that the appeal filed by the petitioner before the Federal Service Tribunal was not competent as the respondent‑bank has been privatized and it is not owned or controlled by the Federal Government. Resultantly on setting aside the orders of Federal Service Tribunal and Labour Appellate Tribunal dated 8th May, 1998 case was remanded to Labour Appellate Tribunal for decision of the appeal in accordance with law. The Labour Appellate Tribunal dismissed the appeal vide order dated 26th November, 1999

3. It may be noted that Labour Appellate Tribunal inter alia non‑suited the petitioner merely on the ground that grievance notice was not served on the employer as required under section 25‑A, I.R.O. It was further observed by the Tribunal that even if for the sake of arguments it is presumed that the appeal filed by him can be treated as a notice but the same was not within the statutory period as required by law. Relevant paras. from the judgment of the Tribunal are reproduced hereinbelow:‑‑ "

10. It is evident from the record that the appellant has not served a grievance notice on the employer before filing the grievance petition in the grievance petition in the Labour Court but in fact he filed departmental appeal before the President of the respondents bank which could not fulfil the requirements of a valid grievance notice because the appeal may be a departmental remedy available to employee under the Service Rules whereas grievance notice is a statutory requirement to be exhausted by the worker under the provisions of section 25‑A(1) of the Ordinance and as such a departmental appeal cannot be treated and equated as grievance notice. Reliance in this respect can be placed on 1984 PLC

89. The relevant citation is reproduced herein for facility of reference:‑‑ "(b) Industrial Relations Ordinance (XXIII of 1969). S.25‑A‑‑ Grievance notice‑‑‑No specific from of grievance notice by employee prescribed‑‑‑Notice to be served upon employer and not on any higher or Appellate Authority‑‑‑Mercy petition, appeal or a petition to Labour Court cannot be treated as grievance notice‑‑‑ Grievance notice, held, a document independent of mercy petition or appeal to Appellant Authority‑‑‑Notice to be served upon Appointing Authority and not 2o Authority higher than that."

11. Similar question came up for consideration before that august Supreme Court of Pakistan on 4th April, 1989. in C.P.S.L.A. No.138‑P of 1985 "Farhat Ali v. Chairman, Labour Appellate Tribunal and others" and while dismissing the petition, approved the aforesaid quoted view taken by the Peshawar High Court.

4. The petitioner then challenged the above order of Labour Appellate Tribunal before Peshawar High Court, Abbottabad Bench by filing Writ Petition No. 130 of 2000. Learned High Court also agreed with the above observations of the Tribunal and declined to grant relief to the petitioner. As such instant petition has been filed for leave to appeal.

5. The petitioner appeared in person and contended that the appeal submitted by him before the Labour Appellate Tribunal dated 22nd May, 1996 does fulfil the requirement of sending a grievance notice under section 25‑A of I.R.C. therefore, for such technical reasons he has been wrongly non‑suited by learned High Court.

6. On the other hand learned counsel appearing for caveator contended that the appeal so filed by the petitioner against letter of dismissal dated 2nd May, 1996 to the next higher authority cannot be treated a grievance notice within the meaning of section 25‑A, I.R.O. To substantiate his arguments, he relied upon 1984 PLC 89.

7. We have looked into available record as well as the impugned judgment consciously. It is an unconroverted fact that against the dismissal order dated 22nd May, 1996 no grievance notice as required under 'A section 25‑A, I.R.O. was served by the petitioner upon the employer. There is no gain in saying that the Appellate Authority is always considered to be distinct and different entity from the original authority competent to make e appointment. According to the contents of appointment letter dated 4th May 1983 petitioner was appointed as Cashier by Regional Manager of MCB being the Appointing Authority whereas appeal was addressed in the name of the President of the Bank who admittedly was not his Appointing Authority. In addition to it, according to the Muslim Commercial Bank Ltd. (Staff) Service Rules, 1981, petitioner being a Cashier was a Category‑II official, C therefore, President of MCB could not be his Appointing Authority meaning thereby that for the purposes of section Z5‑A, I.R.O. Regional Manager would be the employer of the petitioner. As such we, are inclined to associate ourselves with the contention put forward by the learned counsel for the caveator. As a result of above discussion we are of the opinion that petitioner initiated incompetent proceedings against the respondent as no grievance notice under section 25‑A, I.R.O. was issued. As such, relief was rightly declined to him by the High Court, vide impugned order. For the above reasons, petition is dismissed and leave to appeal is S.A.K./K‑50/S Leave declined