1. This appeal is directed against the order of the Sindh Labour Court No. V, Karachi, dated 26.5.2003 whereby the application under Section 25-A of the IRO 1969 (since repealed) was allowed and the appellant was directed to reinstate the respondent with all back benefits.
2. Brief facts of the case are that the respondent was employee of the appellant company. On 10th of April, 2002 when one Rana Atique Ahmed, Dispatch Officer was checking the dipping tank of Lorry No. LSA8589, where the respondent was on the duty, dip stick reading showed that the lorry was filled in excess to the extent of 33 m.m. Rana Atique. Ahmed reported this fact to his senior Rasib Gul, Disptach Officer. The Dispatch officer personally checked lorry and found it filled in excess to the extent of 33 m.m. The excess furnace oil was retrieved from the tank lorry to the required dip level. This detection infuriated the respondent. He abused Rana Atique Ahmed. Then he pushed him, however, Rana Atique Ahmed maintained his equilibrium by taking help of railing of platform.
3. The respondent then took up a steel rod and hit the same on the head of Rana Atique Ahmed, however, as Rana Atique was wearing safety helmet, he survived the injury. Rana Atique was provided medical check up, given medicines and advised rest. Rana Atique Ahmed immediately reported the matter in writing to Iftikhar Ali Khan, Dispatch Manager.
4. On 3.5.2002 the appellant with reference to the above incident, issued a show-cause notice to respondent calling upon him to show-cause within three days as to why disciplinary action may not be taken against him according to law. Brief reply to the said notice was submitted by the respondent on 8.5.2002. He denied the charges and requested for a copy of the complaint to prepare his defence. By a letter dated 10th of May, 2002 the appellant conveyed the explanation was to be unsatisfactory and Mr. Iftikharuddin. Transport Manager, OPT/1 was appointed as Inquiry Officer to hold inquiry on 17.5.2002 at 1000 hours at KMR Installation Conference Room. A copy of the complaint was also enclosed in pursuance of the request of the respondent. Respondent was required to appear and participate along with his witnesses. He was also offered an opportunity to nominate a coworker for his assistance in inquiry. A copy of the report on the basis of which show-cause notice was issued was also enclosed along with the said letter. Respondent did not appear to participate in the inquiry proceedings. After holding the inquiry on 17.5.2002 where both the appellants witnesses were examined. The Inquiry Officer gave his finding on the same day. In the light of inquiry report, on 21.5.2002 the appellant issued the dismissal order to the respondent whereby respondent was informed that he was found guilty of the charge of misconduct levelled against him.
5. Being aggrieved with the dismissal; the respondent addressed a notice under provisions of 25-A of the IRO 1969 dated 22.6.2002 followed by an application under Section 25-A of the IRO before the Sindh Labour Court No. 5, who allowed the application and ordered to reinstate the respondent hence the appellant preferred this appeal.
6. Heard the learned counsel and perused the material available on record.
7. Before proceeding further Mr. Mahmood Abdul Ghani, learned counsel for the appellant, has led emphasis on three objections as to the maintainability of application, under Section 25-A of the IRO 1969. His first objection in this regard is that the matter did not relate to any industrial dispute or any right is secured or guaranteed to the respondent, therefore the application before the learned Labour Court did not lie. In support of this contention he has placed reliance on the cases of Board of Governors Aitchison College, Lahore v. Punjab Labour Appellate Tribunal (2001 SCM R 1928), Trustees of the Port of Karachi v. Muhammad Saleem (1994 SCM R 2213).
8. It is clearly stipulated in clause (3) of the Standing Order that in case of any grievance, the workman may take action in accordance with provisions of Section 25-A of the IRO, 1969, as held by the Hon'ble Supreme Court in the case of M/s. Millat Tractors Limited v. Punjab Labour Court Nos. 3 & 2 others (PLJ 1996 SC 1184). The case law cited by the learned counsel are distinguishable from the present case. In the case of Trustees of the Port of Karachi (supra) the services of employees were governed by KPT Officers & Services (Efficiency & Discipline) Rules under the Karachi Port Trust Act, 1886. The remedy for appeal was provided under the Statute and therefore this case is distinguishable from the present case. The case of Board of Governors Aitchison College, Lahore (supra) pertains to employee of an Educational Institution not covered by the provisions of the West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968 was held as not a member engaged in an industry or industrial establishment. These facts are entirely distinguishable from the present case as no such rules or exemption has been cited by the learned counsel that may exempt the present case from the scope of applicability of West Pakistan Industrial & Commercial Employment (Standing Orders) Ordinance, 1968. Accordingly, the objection has no force and is over ruled.
9. The second objection of the learned counsel as to the validity of Grievance Notice served upon the employer under provisions of Section 25-A of IRO on the ground that the Grievance Notice addressed to the Installation Manager, Shell Pakistan Limited, was not a valid notice in the light of cases of Zar Khan v. The Senior Vice President, Muslim Commercial Bank Ltd. (1984 PLC 89), Manager Atlas Autos Ltd. v. Mumtaz Ahmed (1990 PLC 115).
10. This objection is not tenable in view of the fact that the purpose of notice is to bring to the notice of the employer grievance of a person/employee. even shop Steward is competent to receive the Grievance Notice under the provisions of Section 25-A of the IRO 1969. The case law cited by the learned counsel are distinguishable as in the case of Zar Khan (supra) it was alleged that no grievance notice was sent and in the case of Manager, Atlas Auto Ltd. (supra) no grievance notice was served before commission. In the present case the notice was admittedly served upon the Installation Manager, thus the facts of the case cited by the learned counsel are entirely distinguishable from the present case. Under the circumstances notice has been property served.
11. His third objection is that during the pendency of proceedings, whereby the jurisdiction of NIRC was invoked by way of a petition pertaining to the same cause of action, the respondent had taken up a remedy available under the law. Having done so, he was barred from invoking the jurisdiction of the Labour Court. He has also cited case of Messrs Azad Papers Ltd. and another v. Province of Sindh (PLD 1974 Karachi 80) and National Engineering Services Pak. v. N.I.R. C. and others (2006 PLC 106).
12. It is a settled principle of law that where two remedies are available to a person he has option to choose either of the two remedies however once he exercises such option he could not resort to the other remedy. A pre-condition for application of such bar is that the two remedies to be available before forums having jurisdiction to adjudicate over the matter. A relief sought before a Tribunal not having jurisdiction cannot bar the remedy available before the competent Court. The Full Bench of NIRC has already held that the application was not maintainable in such cases in the case of Boots Pharmaceuticals Limited vs. Member, N.I.R.C. Bench, Karachi and another (1994 PLC 476) which has been relied upon by the learned Member of the NIRC who has dismissed the application on the ground that the appellant was neither party before the NIRC in earlier proceedings nor such point was taken before the learned Labour Court or the NIRC, hence the objection is not attracted to the facts of the present case and is accordingly dismissed.
13. Reverting to the merits, I have heard Mr. Mehmood Abdul Ghani, learned counsel for the appellant, and Mr. Shehanshah Hussain, learned counsel for the respondent. I have also carefully examined the evidence available on record and the view taken by the learned Labour Court in the impugned judgment.
14. In order to prove his case the respondent filed his affidavit-in--evidence as well as affidavit-in- evidence of one Shabbir Ahmed. The respondent has also filed certain documents in support of his case. Both the witnesses were duly cross-examined. The respondent examined Kamran Abbasi, Rasib Gill, Rana Atique Ahmed, Muhammad Yousuf Charolia, Dr. Jameel Qadri, Iftikhar-ud-Din (Inquiry Officer), Owais Sultan and Tariq Saeed. All the witnesses were cross-examined at length.
15. Witness Iftikhar-udDin has also produced inquiry proceedings and other relevant record.
16. Learned Labour Court framed the following points for determination:--
1. Whether applicant was dismissed from service after raising industrial dispute by the Employees Union under Section 22-A (8)(g) before NIRC?
2. Whether dismissal of applicant not being related to the Industrial Dispute nor having led to Industrial dispute hence applicant could not filed application under Section 25-A?
3. Whether grievance application is not maintainable as grievance notice has been served against the installation Manager and not against the Shell Pakistan Ltd?
4. Whether applicant is entitled to any relief?
5. What should the order be?
17. The appellant is aggrieved by the finding on Points Nos. 2 and 3 and the result thereof reflected in the Finding Nos. 4 and 5.
18. A perusal of the impugned judgement in the light of the facts of the case reveals that the evidence has been grossly misread by the learned Labour Court. The determination of points is to be based on evidence however learned Labour Court has not appreciated the evidence in its proper context.
19. Perusal of the evidence of the inquiry officer Mr. Iftikharuddin shows that the respondent wars afforded full opportunity to defend the charges levelled against him. However, the respondent opted to remain absent on the day of inquiry. The plea taken by the respondent that at the venue of inquiry, nobody was present is only an afterthought plea and is belied by his own statement as in Grievance Notice, he has stated that he waited for about one hour at the place of inquiry, while in his letter dated 17.5.2002 delivered by him on the next day i.e. 18.5.2002 at 13.50 hours, he stated that he waited for more than 45 minutes and in cross the time is stated at 2 hours. Furthermore the respondent has not produce any witness in support of his plea that he was present at the place of inquiry. The only witness produced by the appellant has not said any thing about that. Learned Labour Court has failed to appreciate this aspect of the matter. Even otherwise the witness happened to be the driver of the vehicle involved in the incident.
20. The plea taken by the respondent that he has not given reply to the show-cause notice but has asked for copy of complaint has no force. The wording of the reply to show-cause notice itself reveals that the respondent has denied the charges and asked for copy of complaint to prepare the defence. The same clearly reveals that the respondent was to make preparation for an inquiry.
21. Learned Labour Court has also observed that Rasib Gill has made contradictory statement. In fact he has specifically stated that he has seen the incident but he did not observe helmet being hit and broken. This statement cannot be termed as a contradictory statement.
22. The respondent has stated in his cross-examination that he remained in employment with the appellant for a period of 24 years. A statement made to the effect that he neither knew Mr. Iftikharuddin, Inquiry Officer, nor has seen his office. The communication was conveyed to him well in time and if he had any doubts he could have clarify the same as though he remained absent from the proceedings but he was present on his duty. He did not make any effort to ascertain the position and made oral statements to contradict the contents of written opportunity provided to him to attend the inquiry proceedings. The same cannot be made basis for arriving at the conclusion particularly when there was further evidence to the effect that the respondent was also called to attend the proceedings but he refused to do so. Learned Labour Court has also failed to appreciate the contradictory statement of the appellant in this regard as.
23. Learned Labour Court has also failed to appreciate the evidence inasmuch as the reply in cross- examination of Rasib Gill. Supervisor. "I did not observe helmet being hit and broken" is a statement of the witness to the effect of hitting. He has not denied that the complainant was not wearing the helmet but the learned Labour Court has wrongly deduced a conclusion that because witness did not see the incident of hitting by the respondent with iron rod, therefore, Rana Atique Ahmed was not wearing helmet at all. The conclusion thus based on misreading of evidence is also erroneous and is liable to be set aside.
24. The respondent was afforded opportunity to participate in the proceedings, he had prior notice of the proceedings. He had ample opportunity to ascertain the venue of proceedings in case of any doubt, which hardly arises as the respondent also claims himself to be a union activist. The question of not holding of inquiry proceedings against such an activist would obviously not go unnoticed in an institution having a strong organised trade union which is belied from the record of the present proceedings.
25. Learned Labour Court has also failed to appreciate the fact that the respondent has also not been able to produce any independent witness to corroborate his version. On the other hand the appellant has produced 8 witnesses and no material contradiction is shown to be there and therefore the same cannot be ignored.
26. In view of the above position a case of misreading of evidence has been made out in addition to the ignorance of the material evidence on record. This appeal is allowed, the impugned order of the Labour Court dated 26.5.2003 in Application No. 166/2002 is set aside and the order of dismissal is restored.