1. JUSTICE (R.) ALI MUHAMMAD BALOCH (MEMBER).---This appeal is against decision dated 26th August, 2009 given by the learned Presiding Officer, Sindh Labour Court No,IV, Karachi, in grievance Application No,122 of 2000, whereby respondent No,2 has been ordered to be reinstated in service with full back-benefits. Since no Labour Appellate Tribunal was functional, therefore, Constitutional Petition bearing No,S-722 of 2009 was filed in the High Court of Sindh. The High Court of Sindh had admitted the petition for regular hearing to examine if grievance notice served on the company as also the contractor was legal. Reliance was placed on Division Bench decision of the High Court of Sindh as reported in 2000 PLC 52 since approved by the honourable Supreme Court of Pakistan in Civil Petition. Leave to Appeal No,248-K of 1999. Notice for 22-10-2009 was issued by the High Court.
2. On that date respondent No,2 was absent. High Court ordered substitute service of publication in the daily newspaper. This was accordingly done. In spite of publication, respondent No,2 was absent. High Court held service on the respondent No,2 as good on 2-11-2009. In spite of lapse of more than one year, respondent No,2 has not appeared nor applied to set aside the ex parte order.
3. Subsequently, Labour Appellate Tribunal became functional and High Court of Sindh ordered for transfer of the case to this Tribunal, which is to be treated as appeal.
4. ' This Tribunal not withstanding ex parte order in the interest of justice ordered service of notice of the respondent No,2 on the address mentioned both in the grievance petition as also in the impugned judgment. The Bailiff of this. Tribunal has reported that the office is closed and ceased to function any more. No other address has been given by the respondent No, 2 nor he is in attendance even today. Proceedings are once again held ex parte after service of notice through Bailiff and publication in press held good. Mr. Mehmood Abdul Ghani, learned counsel on behalf of the appellant has addressed the Tribunal and submitted written arguments and case-laws, which have been examined. Record and proceedings show that respondent No,2 in the learned Labour Court has admitted that he has served notice of grievance, both on the appellant textile mills and also on Riaz Contractor. In the grievance application before learned Labour Court he (respondent No,2 in this appeal) has identified Riaz Contractor as respondent No,2 in his cross-examination respondent has admitted as under:--- "It is correct to suggest that I am employee of the contractor."
5. ' He has also admitted issuance of Annexure "A" filed by him issued by the contractor. He also admits not raising any objection o Annexure "A" and also admits serving of grievance notice on the contractor Riaz Ali. He admits that Riaz Ali asked him to join duty.
6. ' Mr. Mehmood Abdul Ghani, counsel for the appellant as referred to Division Bench ruling of High Court of Sindh 2000 PLC 52 to the effect that if grievance notice is served both on company and also on contractor, is illegal. Thus judgment has been upheld by the honourable Supreme Court of Pakistan in CPLA No,458-K of 1999. Thus grievance petition based on grievance notice served on company and also on contractor, makes grievance notice as illegal and on this ground the grievance petition should have been dismissed by the learned Labour Court.
7. Mr. Mehmood A. Ghani, learned counsel has next referred to an unreported judgment in Constitutional Petition No, D-2441 of 2001 Habibur Rehman v. Sindh Labour Appellate Tribunal and others, wherein the High Court of Sindh has held that if the employee is not in possession of any document to establish employment of the company, he should have led evidence of any other employee. Admittedly in the instant, case no such evidence is recorded. High Court of Sindh has held that no relationship of "employer" and "employee" had been established. The learned counsel has relied on further unreported judgments of honourable Supreme Court of Pakistan in C.P.L.As.
8. Nos.809-K to 815-K of 2005 Aftab Ali and others v. Woodward Pakistan Limited and Civil Appeal No,39 of 1977 Muhammad Sharif and others v. Punjab Lahore Court No,3 and another, wherein judgments reported in PLJ 1973 Labour 269, PLD 1978 Lah. 704 and PLD 1976 Lah. 1169 were referred.
9. Likewise he has also referred to 1985 SCMR 259 and 1987 SCMR 1463. All these judgments have been referred to by the High Court of Sindh in 2010 PLC 635. The Division Bench of the High Court of Sindh in the case of Seagul Exports Pakistan Limited v. Sindh Labour Appellate Tribunal reported in 2002 PLC 212 has also taken the same view. This view has also been taken by the honourable Supreme Court of Pakistan in 1988 SCMR 1725.
10. After perusing the evidence on record, even on merits, I am of the view that the respondent No,2 has admitted in his cross-examination that he is not employee of Al-Karam Textile Mills (Pvt.)
11. Limited, grievance petition on this ground against the company was not maintainable. High Court of Sindh has held service by publication as good. Learned Labour Court in this case held that respondent No,2 (applicant in grievance petition) is not the employee of the company, but of the contractor, yet company has been ordered to ensure that order of the learned Labour Court is to be enforced by the contractor. No such liability is allowed as even in the learned Labour Court the contractor was impleaded as the respondent. Employer cannot liable to any order passed against the separate legal entity. Standing Order 20 of the Standing Orders Ordinance, 1968 was not applicable as there is no evidence to establish that respondent No,2 was employed by the company through the contractor. In view of the above, decision of the learned Labour Court dated 26th August, 2009 is set aside and the appeal of the appellant Textile Mills is allowed.