ZAKIR HUSSAIN Versus M/S SPENCER & CO (PAK) LTD KARACHI
ORDER
This is an appeal filed on behalf of one Zakir Hussain an employee of M/s. Spencer & Co. (Pak.). Ltd. against the decision of 4‑3‑19.77 given by Mr. Farhit‑Ali‑ Khan a Member of the Commission in a Petition No. 17(3)/76 under section 25‑A of the Industrial Relations Ordinance. Briefly the facts as alleged in the petition are as under: -
2. The petitioner/appellant was appointed as a General Clerk in the establishment of M/s. Spencer & Co. (Pakistan) Limited on 13‑10‑1971. He was promoted as Salesman on 23‑3‑1972. He joined the Union styled as Pakistan Spencers Employees' Union in November 1973. He was appointed as Member of Works Council and was also nominated on the General Council of the Union. The Management started to harass the petitioner after he joined the Union. The petitioner cited some instances of harassment for having been suspended and charge‑sheeted. It was then alleged that with a view to further harass the petitioner, he was, vide letter dated 25‑2‑1976, transferred from Sukkur to Nawabshah w.e.f. 1‑3‑1976. The petitioner protested against this transfer and submitted written representation on 25‑2‑1976 but his transfer orders were not cancelled. The petitioner did not immediately proceed to Nawabshah but went on casual leave from 2nd to 5th March, 1976. He then gave an application on medical grounds for fifteen days. On 20‑3‑1976 he sent a telegram requesting extension of leave and stating that medical certificate would be submitted later on. The petitioner was asked to appear before a Medical Board, which on 30‑3‑1976 certified that he was not ill. The petitioner, however, joined the duty at Nawabshah on 3‑4‑1976. He was served with a charge‑sheet on 28‑4‑1976 and as a result of domestic enquiry was dismissed from service w.e.f. 19‑7‑1976 vide letter dated 15‑7‑1976.
3. The petitioner soon after his dismissal, filed a petition on 21‑7‑1977 under section 25‑A read with section 53 of the Industrial Relations Ordinance. This petition numbering 4(199)/76 was assigned by the then Chairman of the Commission to the Senior Member of the Commission Mr. Mamoon A. Kazi for disposal who on a request by the counsel for the petitioner allowed an amended petition to be filed. The amended petition in the form of complaint under section 53 of the Ordinance was filed on 23‑9‑1977. This amended petition was then dismissed on 16‑10‑1977 by the learned Senior Member on the ground that the complaint did not disclose any allegation of unfair labour practice. The petitioner has gone, in appeal before a Full Bench of the Commission, which is pending adjudication.
4. The petitioner on 16‑10‑1977 filed another, petition numbering 17(3)/76 which was; assigned to Mr. Farhat Ali Khan another Member of the Commission and this appeal has arisen out of the order of dismissal of this petition on 21‑3‑1977.
5. The learned Member invited comments from the respondents in Case No. 17(3)/76 who raised various preliminary objections. The learned Member upheld three objections and dismissed the petition on the following grounds: ‑
(i) An identical application under section 25‑A (6) of the Ordinance was filed by the petitioner on 21‑7‑1976 before Commission bearing Case No. 4 (199)/76 which was dismissed by the learned Senior Member, Mr. Mamoon A. Kazi, vide his Order of 16‑10‑1976. The learned Member came to the conclusion that present application bearing Case No.17 (3)/76 is an identical application which was earlier dismissed by the, learned Senior Member and that the matter could not be agitated again on the same ground.
(ii) The petition was hopelessly time‑barred. The learned Member relied on subsection (6) of section 25‑A of the Ordinance, which has now been repealed. Under the un-repealed subsection (6), the petitioner was required under Law to have filed the petition within two months' time of the order or termination of the petitioner's employment. The learned Member held that the case fell under subsection (6), which had an overriding effect on the other provisions of section 25‑A of the Ordinance.
(iii) One Muhammad Ejaz `General Secretary' of the Pakistan Spencers Employees' Union, which is a Collective Bargaining Agent submitted a charter of demands under section 36 of the Ordinance on the respondents and the demands, inter alia, contained a demand for reinstatement of the petitioner. At the time of signing the Settlement the demand of re‑instatement of the petitioner was dropped. This Settlement was signed on 15‑11‑1976 and was to remain operative from 1‑7‑1976 to 30‑7‑1978. The learned Member came to the finding that this Settlement was binding on all the workers including the petitioner since it was signed by a collective bargaining agent and as such the petitioner and his Agent Mr. Muhammad Ejaz, General Secretary are estopped from agitating the issue once again.
6. The petitioner in the appeal, has challenged the impugned order on the following grounds: ‑‑
(a) The present petition bearing Case No. 17(3)/76 is a civil petition under section 25‑A while Case No. 4(199)/76 was a criminal complaint under section 53 of the Ordinance. The petitioner had two remedies open to him. He could have filed a criminal complaint under section 53 and could also file a petition for reinstatement under section 25‑A of the Ordinance. It was further submitted by the appellant's counsel that originally he had filed the first application on 21‑7‑1976 under section 25‑A read with section 53 of the Ordinance but later on, he was allowed to amend this application and filed a criminal complaint, which was disposed of by the Senior Member. The learned counsel submitted that since the formalities of delivering a grievance notice were not fulfilled by the petitioner he was not competent to file an application under section 25‑A. He, therefore, filed a civil petition under section 25‑A of the Ordinance after giving grievance notice and that the two matters were different in nature.
(b) The learned counsel for the appellant also submitted that the petition is not time‑barred in view of the fact that subsection (6) of section 25‑A is not applicable to the present case and that the case is covered under subsections (1) to (4) of section 25‑A of the Ordinance. The appellant submitted that he gave a grievance notice on 2‑10‑1976 and filed the present application on 16‑10‑1976, which was not time- barred under section 25‑A of the Ordinance.
(c) The learned counsel for the appellant further submitted that the Union was not competent to raise a demand for his reinstatement, as it did not constitute an industrial dispute as defined in section 2(xiii) of the Industrial Relations Ordinance. He contended that any settlement in breach of any provision of law is void and as such the Settlement dated 15‑7‑1976 was not binding on the appellant.
6‑A. In the appeal before us the respondents took the preliminary objection that the appeal is not competent and maintainable on the ground that the Memo. of Appeal does not bear the signatures of the appellant. It is signed only by the counsel for the appellant. He further pointed out that the counsel has not filed his power of attorney and as such the institution of the appeal is illegal. The learned counsel for the respondents further pointed out that even the petition bearing Case No. 17(3)/76 from which this appeal has arisen is not signed by the appellant or the General Secretary of the Union. It is again only signed by the counsel for the petitioner and that in this case too the learned counsel has not filed his power of attorney. The record was seen and the allegation of the learned counsel for the respondents was found correct. The learned counsel also made an application for summoning the file of Case No. 4(199)/76 and it was found that neither the original petition dated 21‑7‑1976 nor the amended complaint dated 23‑9‑1976 was signed by the petitioner/appellant. However, there was a power of attorney filed in that case.
7. It has been argued on behalf of the learned counsel for the respondent that under section 25‑A (4) of the Ordinance, a worker or the collective bargaining agent is entitled to take the matter to the Labour Court. In this particular case, as the petition was not signed by the worker or the collective bargaining agent the petition therefore suffered from legal disability even if the counsel had filed his power of attorney. The learned counsel for the respondent relying on section 49 of the Ordinance further submitted that a workman can be represented by an Officer of the collective bargaining agent in an industrial dispute. He further submitted that under subsection (3) of section 49 a party to an industrial dispute can be represented by a legal practitioner in any proceeding before the Labour Court or before an arbitrator with the permission of the Court or the arbitrator as the case may be. He submitted that no said permission was sought by the counsel before the learned Member. It was, therefore, contended that the learned counsel is not even competent to represent the appellant.
8. The learned counsel for the respondents then drew a distinction between institution of pleadings and representation of parties in the proceedings. In this context it was urged that an application under section 25‑A would be deemed to be an industrial dispute. Reliance has been placed on subsection (4) which states that where the matter is taken to Labour' Court it shall give a decision within 7 days from the date of the matter being brought before it as if such matter was an industrial dispute. The procedure for disposing of an industrial dispute is given under section 36(2) of the Ordinance which lays down that a Labour Court, shall for the purpose of adjudicating and determining any industrial dispute, shall be deemed to be a Civil Court and shall have the same powers as are vested in such Code under the Code of Civil Procedure, 1908 (Act No. V of 1908) including the powers of‑‑
(a) enforcing the attendance of any person and examining him on oath,
(b) compelling the production of documents and material objections, and
(c) issuing commissions for the examination of witnesses or documents.
9. The learned counsel therefore concluded that provisions of Civil Procedure Code would be attracted to find out whether the petition was properly instituted or not. He then referred section 26, C.P.C. which lays down that every suit shall be instituted by the presentation of a plaint or in such manner as may be prescribed. In C.P.C., Order VI under rule 14 it has been laid down that every pleading shall be signed by the party and his pleader (if any): Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorised by him to sign the same or to sue or defend on his behalf in this particular case the petition was not signed by the petitioner and his counsel was not authorised by the petitioner to file the petition.
10. The learned counsel for the appellant has not been able to meet the objection raised by the respondent. Agreeing with the views of the learned counsel for the respondents on the legal objection we do not deem it proper to go into the merits of the appeal. Neither the Application No. 17(3)/76 nor the appeal is properly instituted. The appeal is therefore rejected.
H.B.T./195/N.I.R.C.
Appeal rejected.