P L D 1976 Karachi 200 (PLP)

Date of hearing : 17th December 1975. The petitioners are a private limited company incorporated in Pakistan. They have different service stations run through their contractors. Saifie Filling/Service Station, Club Road is one of such service stations. According to the petitioners it was being run and managed by one A. W. Borges under operating contract dated 1st August, 1972. This contract was to take effect from 15th March, 1971. According to paras. 4 and 5 of this contract the said contractor was responsible for employing sufficient number of pump attendants and other staff and the staff employed by him was not to be considered as the staff employed by the petitioners. It was specifically mentioned in para. 5 of the said contract that the petitioners shall not be liable in any manner towards the staff employed by the said contractor and that he shall be alone liable towards them on all accounts.

2. The second respondent was one such employee who was employed in January, 1972 at the said service station by A. W. Borges. His services were terminated on 11th May, 1973 by the successor of the former contractor namely Louis Gonsalves. After the termination of the services the second respondent served the petitioners with a notice on 14th May, 1973. The petitioners did not reply this notice whereafter an application under section 25-A of Industrial Relations Ordinance, 1969 was filed against the petitioners on 24th August, 1973. In reply to the said application the petitioners raised several objections. The most pertinent of these objections was that the second respondent was not an employee of the petitioners and that his application filed before the Junior Labour Court was also barred by time. The Junior Labour Court held that there was no privity of contract of between the parties and consequently, dismissed the application on 15th October, 1973. However, in an appeal filed by the second respondent the order of the Junior Labour Court was reversed by the Labour Court on 3rd January, 1974 and the petitioners were ordered to re-instate the second respondent in service with full back benefits. It is against this order, that the present petition has been filed.

3. Before dealing with the points upon which this petition is opposed, I may refer that second respondent's case is that during the pendency of this petition he had been reinstated in service on the said service station by the contractor. Since the said contractor is not a party before this Court therefore no finding can be given as to whether he was legally liable to re-instate the second respondent in pursuance to the order of the Labour Court or not.

4. The first of the contentions raised by Mr. Ali Ahmed Fazeel, the learned counsel for the petitioners is that the application of the second respondent was barred by time as the grievance notice was given on 14th May, 1973 whereas the application under section 25-A of Industrial Relations Ordinance, 1969 was filed before the Junior Labour Court on 24th August, 1973 i.e. beyond a period of 2 months. According to section 25-A (1) of Industrial Relations Ordinance, 1969, a grievance notice is to be given by a worker whose services have been terminated by his employer within three months from the date of the accrual of cause of action. After the notice is given the employer shall reply it within 15 days. In case the aggrieved worker is dissatisfied with the employer's reply to the grievance notice he may approach the Junior Labour Court within two months next from the date of the communication of that notice. In this case as no reply was given by the petitioners to the second respondent therefore he had 21 months time at his disposal to file the application under section 25-A of the Industrial Relations Ordinance, 1969. In this 2 months period 15 days would be the time during which the second respondent had to wait for the reply of this notice front the petitioners and remaining two months period which is provided by subsection (4) of section 25.A of Industrial Relations Ordinance, 1969 for filing the application before the Junior Labour Court in case no reply is received from the employer or where the worker is not satisfied with the reply given to him by his employer. In this case the second respondent admittedly filed this application before the Junior Labour Court beyond a period of 2 months. On this point alone the application filed before the Junior Labour Court was incompetent. The learned counsel ford the second respondent has argued that this point has not specifically been pleaded by the petitioners before the Junior Labour Court. I am afraid I cannot contribute to this view because the petitioners in their rejoinder filed before the Junior Labour Court specifically mentioned that the application filed before the Junior Labour Court was barred by time and it was not therefore entertainable. In my opinion it is enough compliance with the legal requirement and it is appropriate method of raising an objection. The learned counsel on the opposite side has not been able to convey to me as to what particular method is necessary to be adopted to raise any legal objection. After the objection had been raised in sufficiently plain language it was the bounden duty of the Junior Labour Court to give a finding upon it' The petitioners are not liable to suffer for the failure of the Junior Labour Court to decide the objection specifically raised by them.

5. Since the petition can be disposed of on this point alone therefore do not want to go into other points raised by the learned counsel for the petitioner to question the maintainability of the application filed before the Junior Labour Court.

6. For the foregoing reasons I find that the application filed by the second respondent before the Junior Labour Court was liable to be dismissed on the short point that it was barred by time. The Junior Labour Court did not take this point into consideration which is against law The Labour Court also famed to consider this point and therefore its order is also illegal and without jurisdiction. Consequently both the orders mentioned above are set aside but with no orders as to costs.

7. Before I part with the case I may mention that this order would not adversely affect the re-instatement of the second respondent in service by the contractor. However, the second respondent shall not be considered an employee of the petitioners. S. A. H. Petition accepted.