1. ' MUHAMMAD NADIR KHAN, J.---This constitution petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is directed against the order dated 23-4-2005 passed by District Judge/Presiding Officei Third Labour Court Balochistan at Hub (hereinafter referred to as the Labour Court) whereby the application filed by the petitioner under Order VII Rule 11(d) read with section 151 C.P.C. Has been rejected.
2. ' Facts relevant for disposal of this petition are that the respondent No,1 (hereinafter referred to as the applicant/worker) tiled grievance application under section 46 of Industrial Relations Ordinance, 2002 (hereinafter referred to as I.R.O. 2002) against the petitioner (hereinafter referred to as the Company) and respondent No,2 Ghulam Nabi (hereinafter referred to as the Contractor) wherein he sought redressal of his grievance about final payment of his dues on his retirement.
3. Applicant/worker prayed for issuance of order that he be paid according to I.R.O.
4. 2002.
5. ' The Company in response to the notice of the grievance application, filed application under Order VII Rule 11(d) C.P.C. Read with section 151 C.P.C. For rejection of the grievance application to the extent of the Company mainly on two grounds namely, that the grievance notice sent by the applicant through his Advocate was illegal, hence his grievance application was not competent and, secondly, that the applicant was not employee of the Company as his services were A provided to the Company by the Contractor of whom the applicant was employee.
6. Contractor also resisted the claim of the applicant and challenged the maintainability of the application by raising number of preliminary objections and it was claimed that the amount paid to the applicant as full and final payment on his retirement was in accordance with law.
7. ' Learned Labour Court after hearing the arguments of the parties A dismissed the application filed by the Company with following observations:-- "The careful perusal of record shows that there are certain points raised in main application which require a thorough probe and evidence, therefore, it would be improper and unjust to dismiss the application on technical grounds. Apart from this in number of cases it has been held by the superior Courts of the country that cases should be decided on their merits rather on the basis of technicalities. Therefore, I am not inclined to accept the applications submitted by the respondent No,1, hence is rejected Let the law take its course. The matter be fixed for filing rejoinder by the respondents."
8. ' In response to the notice of this petition the respondent No,1 expressed his inability to appear before the Court and expressed his confidence on the Court for deciding the matter in his absence.
9. ' Counsel for the petitioner Mr. Jawad A. Sarwana and Mr. Ibrahim Lehri counsel for respondent No,2 have been heard and the impugned order has been perused minutely. As already stated the petitioner/Company without filing of any rejoinder to the main application filed the application under Order VII Rule 11 (d) read with section 151 C.P.C. For rejection/dismissal of the application of applicant to the extent of petitioner on two grounds referred to hereinabove. Both the grounds so raised by the petitioner admittedly go to the very root of the matter as filing of grievance application on the basis of the grievance notice issued by an Advocate is apparently not in accordance with provisions of section 46(1) of I.R.O. Which reads as under:-- "(1) A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any aware or settlement for the time being in force to the notice of his employer in writing, either himself or through his Shop Steward or Collective Bargaining Agent, within one month of the day of which cause of such grievance arises."
10. ' Similarly the plea of the petitioner/Company that the applicant was employee of respondent No,2, i,e, Contractor and he was never employed by the Company though demolishes the claim of the applicant/worker against the Company, but the said fact requires enquiry. 'However, the objection about issuance of grievance notice through counsel is found to be requiring no evidence as the applicant along we his grievance petition has filed the grievance notice and other documents which the Labour Court was required to examine for ascertaining the maintainability of the grievance application filed on the basis of said grievance notice stated to be against the provisions of B I.R.O.
11. 2002. Division Bench of this Court in its judgment 1998 CLC 1738 passed in Constitutional Petitions Nos.509/97 and 3/98 held that if the Court seized of the matter considers it proper to dispose of objection without recording of evidence like the cases in which jurisdiction of a forum is under consideration, preferably before entering into the merits of the case. In such view of the matter the Labour Court was required to examine the maintainability of the grievance petition on the basis of admitted facts and law on the subject as admitted facts need no probe and evidence. The observation of learned Labour Court in said regard cannot be agreed and failure to examine the said aspect of the case reflects refusal to exercise jurisdiction so vested in the Labour Court.
12. ' Having in view the above circumstances we have no hesitation to set aside the order dated 23-4- 2005 and remand the case to the Labour Court to first decide the legal objections going to the very root of the matter which requires no evidence and thereafter if the applicant/worker crosses the said hurdle the respondent No,1 may be called upon to file his rejoinder to the grievance application and decide the matter on merits.
13. ' Petition accordingly, stands disposed of in the above terms with no order as to costs.