AMIR KHAN Versus MOHIB TEXTILE MILLS LIMITED, MUZAFFARGARH
This is an appeal by Amir Khan from the decision of the Punjab Labour Court No. 9, Multan, dated 6th of January, 1988, whereby his grievance petition assailing the legality of his dismissal from service was dismissed on the grounds that he was not a workman that he had not impleaded the employer as a respondent and that the material on record proved that he remained absent from duty without leave.
2. The appellant was employed as a Security Guard with the respondent. His case was that on 19th of March, 1984 he received a letter that someone in his family had fallen ill back home. After submitting an application for leave for the period from 20th of March, 1984 to 26th of March, 1984 he proceeded to his home town. On his return when he went to the mills on 27th of March, 1984 he was not allowed entry and resumption of duty. He was deliberately marked absent. He submitted applications to the management to permit him to resume duty but in vain. After an ex parte inquiry he was illegally dismissed from service with effect from 3rd of June, 1984 vide order passed by the Factory Manager (Exh. R‑19). After service of grievance notice on 15th of July, 1984 which remained unresponded, he filed a grievance petition on 12th of September, 1984 under section 25‑A of the Industrial Relations Ordinance, 1969.
3. The grievance petition was contested by the Mohib Textile Mills through its Manager. It was contended that the appellant remained absent without leave for more than ten days, he was charge‑sheeted and after a proper inquiry with due notice to him by post in which he was found guilty of the charge, he was dismissed from service on 3rd of June, 1984. It was alleged that before imposing this penalty the appellant was served with a second show- cause notice and also a notice for personal hearing but he adopted a negative attitude. Legal objections were also taken to the effect that the appellant was not a workman and that the grievance petition was barred by time and suffered from the defect of nonjoinder of a proper party.
4. Both the parties adduced evidence. The appellant examined himself as P.W. 1 and produced three witnesses in his support. In rebuttal Nazir Ahmad, Labour Officer entered the witness‑box as R.W.1. The Labour Court vide its decision, dated 8th of January, 1987 dismissed the grievance petition on the ground that it was barred by time. The other questions in controversy were not discussed. Feeling aggrieved, the appellant filed an appeal. My learned predecessor vide judgment, dated 28th of February, 1987 accepted the appeal and remanded the grievance petition with the direction that the question of limitation be decided afresh and if it held that the petition was within time, the case be decided on merits.
5. The learned Labour Court reheard the grievance petition and vide its decision, dated 6th of January, 1988 dismissed the same on merits. It was held that the grievance petition was within time but since the appellant was not a workman and it had been proved that he remained absent from duty without leave, his dismissal from service was justified. It was further observed that the appellant had not impleaded the employer as a respondent and, therefore, the Labour Court was not in a position to grant the relief prayed for by the appellant.
6. Feeling dissatisfied, the appellant again filed an appeal. My learned predecessor vide judgment, dated 6th of March, 1988 dismissed the appeal solely on the ground that the appellant had failed to establish that he was covered by the definition of workman. On the questions whether the grievance petition suffered from the defect of non‑joinder of the employer and whether the appellant had remained absent, the findings of the Labour Court were reversed. '
7. The appellant challenged the judgment of my learned predecessor in the High Court in Writ Petition No. 1666 of 19^88. The learned High Court vide judgment, dated 2nd of June, 1992 accepted the writ petition and setting aside the finding of my learned predecessor that the appellant was not a workman; remanded the appeal for decision afresh.
8. I have heard learned counsel for the parties and perused the record. The question whether the appellant was a workman has already been decided in the affirmative by the High Court on the basis of the precedents reported as Rehmat Ali v. Security Papers Limited (PLD 1982 Karachi 913) and organization of Karachi Port Trust Workers v. Karachi Port Trust etc. (1988 SCMR 922). Another precedent which vouchsafes this view is Shahzar Khan v. Sindh Labour Court and others (1977 SCMR 103). Therefore, this question already stands resolved in favour of the appellant.
9. Learned counsel for the respondent has laid emphasis on the objection that the grievance petition filed by the appellant suffered from the defect of non‑joinder of a proper party, inasmuch as the Mohib Textile Mills Limited through its Manager was not arrayed as a respondent. It is true that the petition was not written in the form prescribed by the Code of Civil Procedure, inasmuch as in the title neither the petitioner was described nor particulars of the respondent were given, nevertheless in the body of the petition it was made clear that the grievance of the appellant was against the management of Mohib Textile Mills Limited, Muzaffargarh. It was perhaps for this clarification that written statement was filed by the Mohib, Textile Mills Limited through its Manager. The grievance petition has throughout been contested by the Mohib Textile Mills Limited through its Manager. Therefore, the omission to give particulars of the respondent in the title of the grievance petition did not cause any prejudice to the respondent. Moreover, the technical requirements of the Code of Civil Procedure pertaining to form of suits or petitions filed thereunder do not strictly apply to petitions filed under the Industrial Relations Ordinance, 1969. I, therefore, hold that the omission complained against by the respondent does not vitiate the proceedings.
10. As regards limitation, the appellant was dismissed from service on 3rd of June, 1984. On 15th of July, 1984 he sent a grievance notice (Exh. P‑1) to the Factory Manager (Exh. P‑3) is its postal receipt and Exh. P‑2 is the acknowledgement due which indicates that the notice was received by the addressee on 16th of July, 1984. The grievance petition was filed on 12th of September, 1984. In view of this evidence, the grievance petition was within time. Learned counsel for the respondent in this connection has referred to the grievance notices Exhs. R‑1/R‑12, R‑2 and R‑4/R‑13 which were sent by the' appellant on 31st of March, 1984, 22nd of April, 1984 and 19th. of June, 1984, respectively. According to him, in view of these grievance notices, the grievance petition was barred by time. This contention is misconceived. These grievance notices were not against dismissal but against his illegal lock‑out. The notice in which grievance was expressed against his dismissal was that which was exhibited as P‑1 and sent on 15th of July, 1984. This was within time and the grievance petition from the date of service of this grievance notice, was also within time. Therefore, the question of limitation is found in favour of the appellant.
11. As regards the merits of the case, the charge against the appellant was that he remained absent from duty without leave for more than ten days with effect from 20th of March, 1984. The case of the appellant from the very beginning was that on 19th of March, 1984 he had to leave suddenly for his home town on receipt of an intimation that someone in his family‑ had fallen ill, He submitted an application for leave for the period from 20th of March, 1984 to 26th of March, 1984. When he came back and went to the mills on 27th of March, 1984, he was prevented from entering the mills and resuming duty. He complained against it to the management by sending notices Exhs. R‑1, R‑and R‑4 but in vain. He received notices regarding the institution of an inquiry against him and the appointment of an Inquiry Officer but he was not allowed entry in the mills to participate in the inquiry. The inquiry was held behind his back. He deposed to his allegations as P.W.1. He examined Shaukat Raza (P.W.2), Muhammad Ramzan (P.W.3) and Atta Muhammad (P.W.4) who fully supported him. In rebuttal the sole witness of the respondent namely, Nazir Ahmad, Labour Officer who appeared as R.W.1, in his cross‑examination said that he was not aware as to whether the appellant was prevented from entering the Mills. This evidence amply proved that the appellant was justified in suddenly leaving for his home town on 19th of March, 1984 on receipt of a letter intimating him that someone in his family had fallen ill, that he submitted an application for leave for seven days from 20th of March, 1984 to 26th of March, 1984 and on his return from 27th of March, 1984 onwards, he was not permitted to enter the mills either to resume his duty or to participate in the inquiry and that the inquiry proceedings were invalid.
12. In the result, I accept this appeal, set aside the impugned decision of the Labour Court and accepting the grievance petition of the appellant, direct the respondent to reinstate him in service within one month.
13. So far as back benefits are concerned, the appellant neither mentioned in his grievance notice, dated 15th of July, 1984 (Exh.P‑1) nor pleaded in his grievance petition nor asserted in his testimony as P.W.1 that he remained jobless since his dismissal from service. In view of this fact, he is not entitled to back benefits and, therefore, the same are declined.
H.B.T./754/Lb.P Appeal accepted.