KHIZAR HAYAT Versus PAKISTAN RAILWAYS, KARACHI

MUHAMMAD HUSSAIN ADIL KHATRI, J.‑‑‑ This petition has been filed assailing the decision dated 4‑6‑1992 given by the IInd Labour Appellate Tribunal, Karachi in the appeal filed by the petitioner.

2. The petitioner was employed as Pointsman by the Railway Department. The services of the applicant were terminated on the ground that he unauthorisedly remained absent from service from 13‑1‑1979 to 15‑11‑1986, The termination order was passed on 31‑12‑1988. The petitioner filed departmental appeal against the termination which was dismissed on 9‑9‑1989 and the order was communicated to him on 29‑1‑1990. The petitioner without submitting any grievance petition under section 25‑A(1) of the Industrial Relations Ordinance (XXIII of 1969) to the employer, filed the grievance petition under section 25‑A(4) of the said Ordinance, before the Vth Sindh Labour Court at Karachi on 8‑10‑1990.

3. The said Labour Court dismissed the petition being barred by time. It is also observed by the Court that the petitioner had failed to give any explanation with regard to the delay in filing the grievance petition. The only explanation offered by the petitioner for his absence from duty for such a long period was his illness, but he failed to place any material on record to establish such illness.

The appeal filed by the petitioner was also dismissed by the Sindh Labour Appellate Tribunal holding that the grievance petition filed by the petitioner was barred by time.

4. We have heard Mr. MA. Hasan Malik, learned Advocate for the petitioner. It was contended by him that the order dated 9‑9‑1989 was not communicated to the petitioner and, therefore, he was entitled to condonation of delay. According to the learned counsel, the petitioner submitted the grievance petition before the Labour Court, no sooner than he came to know about the dismissal of his departmental appeal. It is, however, noted that in the grievance petition filed by the petitioner under section 25‑A of the Industrial Relations Ordinance, 1969, it is specifically stated by him that the aforesaid order dated 9‑9‑1989 was communicated to him by his employer vide letter dated 29‑1‑1990. It is nowhere alleged in the petition that this order was not received by him on 29‑1‑1990 or immediately thereafter. Neither the date of receipt of the said order has been disclosed, nor it is pleaded that the grievance petition was being filed by him within time from the date of receipt of the aforesaid order dated 9‑9‑1989. The impugned order and the decision of the Labour Court disclose that the petitioner had also filed an application for condonation of delay in filing the grievance petition and according to the Labour Court the petitioner had failed to make out any ground for condonation of delay.

5. Section 25‑A(1)(2) provides that a workman may bring his grievance in respect of any right guaranteed or secured to him to the notice of his employer in writing within three months of the date on which cause of such grievance arises. Where the workman himself gives such notice to the employer, the employer shall within 15 days of the grievance being brought to his notice, communicate his decision in writing to the workman and where it is brought to the notice of the employer through workman's shop steward or collective bargaining agent, the employer shall within seven days of the grievance being brought to his notice communicate his decision in writing to the shop steward or the collective bargaining agent. Subsection (4) provides that if the employer fails to communicate his decision within the period speed in subsection (1) or (2) or workman is dissatisfied with such decision, lie may take the matter to the Labour Court within a period of two months from the date of the communication of the employer or from the expiry of the period mentioned in subsection (2) or subsection (3) as the case may be.

The above provisions of the Ordinance came up for consideration before this Court in the case of National and Grindlays Bank Ltd., Karachi v. Homi F. Berrana and 2 others (PLD 1979 Kar. 692) and it was held that it was necessary for the respondent worker to explain each day's delay. In the said case reliance was placed on the case of Pakistan Burmah‑Shell Oil Limited v. Sindh Labour Court V (PLD 1976 Kar. 200).

In Saleem Sons Limited v. Second Sindh Labour Court, Karachi and another (PLD 1973 Kar.l), a Division Bench of this Court while interpreting the provisions of Standing Order No. 18 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 which is in pari materia with section 25‑A of the Ordinance referred to the well‑settled principle of interpretation of Statutes that when a statute creates new rights and obligations and prescribes the mode of its employment or enforcement such provision is considered mandatory and that the legislature‑ indicates compliance of such provision to be essential to the validity of the act or proceedings and it was held that paras (a) and (b) of the Standing Order No.18, which prescribed the limitation were mandatory and, therefore, no application under the provision would lie unless the applicant strictly complied with its requirements: The above authority was relied upon by a Division Bench of this Court in Nasim Silk Mills Industries v. Vth Sindh Labour Court (PLD 1974 Kar. 80) and so also in the case of Karachi Development Authority v. Presiding Officer II, Sindh Labour Court, Karachi (PLD 1974 Kar. 716). The rule laid down in the case of Nasim Silk Mills Industries was followed in Pakistan National Centre through its Chairman v. Presiding Officer, Punjab Labour Court No. II, Lahore and another (PLD 1976 Lah. 1085) and District Council, Sargodha v. Sher Muhammad (1980 PLC 426).

It is the pre‑requisite for invocation of jurisdiction of the Labour Court that the worker has to first bring his grievance to the notice of his employer in writing within three months from the cause of grievance; and unless this procedure is observed, the workman cannot straightaway approach the Labour Court.

In the instant case the learned Labour Appellate Tribunal has observed that even if the appeal filed by the petitioner through General Manager could be treated as a grievance petition the presentation of the petition before the Labour Court was much beyond the time prescribed under the law.

In view of the above no exception can be taken to the impugned decision. The above are the reasons for the short order, announced by us on 22‑9‑1992, whereby the petition was dismissed in limine.

H.B.T./K‑314/K Petition dismissed.