' ABDUL GHIAS NOUSHERWANI (MEMBER).--- This appeal/petition is directed against the interim order dated 12-10-2011 wherein the legal objection of respondent with regard to maintainability of grievance application for the reason that grievance notice has not been sent/presented by the appellants rather the same has been issued by an Advocate. In impugned order the learned Labour Court decided this issue in affirmative and parties were directed to produce their evidence.
2. It is pertinent to mention here when this appeal was filed on 12-11-2011 the tribunal was not constituted therefore a petition has been filed before honorable High Court of Balochistan wherein the proceedings before Learned Labour Court were stayed. Consequently after constitution of this tribunal the petition has been withdrawn pending before Honorable High Court of Balochistan.
3. The appellant/respondents were employee of the company respondent/petitioner for a considerable period. On 14-4-2011 termination letters were issued to respondents Nos.2 and 4 whereas that of respondents Nos.1 and 3 on 25-4-2011. It reveals that prior to above mentioned termination letters the appellants/respondents were suspended.
4. Being aggrieved the appellants/respondents serve grievance notice on 24-5-2011 through their counsel. Thereafter they filed grievance application and on service of notices the respondent/petitioner raised legal objection and a request was made by respondent/petitioner for a decision on legal objection because the issue so raised pertain to question of law which are as under:--- A. Whether the petitioners served the grievance notice according to mandatory provision of section 41 of BIRA, 2010.
B. Whether in present case grievance notice was served by Messrs Saz Malook Law Associates on instructions from his client which is against the mandate specified in section 41 of BIRA, 2010.
5. After hearing the counsel of the parities the Learned Labour Court passed impugned order concluded as below:- "The above authorities produced by the learned counsel for the applicants are attracting in the case in hand and the facts of the said authorities are attracting therein, therefore, the arguments of the applicants having force and value in the instant case. So the Issues Nos.1 and 2 are decided in affirmative and while the remaining issues would be decided after recording evidence from both the sides."
6. The learned counsel for petitioner/respondent contended that it is the mandatory provision of BIRA that grievance notice be served by the employee himself or Shop Steward or CBA but in instant case the grievance notice has been issued by an Advocate. In support of his contention he referred an authority reported in PLD 1980 Supreme Court 80. On the other hand the learned counsel for respondent/applicant contended that under section 41 of BIRA nothing is mentioned that the grievance notice should not be issued by ariadvocate for the reason that the class of Labour/worker is illiterate and unable to express their grievance in writing. Next he contended that admittedly grievance notices were issued/served by the advocate but the each and every page of grievance notice is signed by the applicant/respondent therefore it cannot be considered that the grievance notices has not been served properly. In support of his contention he referred authorities 1996 PLC 280, 1988 PLC 939 and 1993 PLC 450.
7. In section 41 of BIRA, 2010 as well as other IRA mention the method of redressal of grievance it is reproduced as under:- "A worker may bring his grievance in respect of any right guaranteed or secured to him by ,or under any law or any award or settlement for the time being inforce to the notice of his employer in writing, either himself or through his Shop Steward or Collective Bargaining Agent within three months of the day on which the cause of such grievance arises."
8. As stated above that almost all the provisions and present Labour Laws given the same method for service of grievance notice which has been reproduced hereinabove. For interpretation of this clause a matter came before honorable Supreme Court of Pakistan which was decided and reported in PLD 1961 Supreme Court page 57 wherein held, "While construing section 34 of the Industrial Disputes Ordinance, 1959, it was held that the intention of the Legislature was obvious from its language that it regarded the appearance of legal practitioners in proceedings before the Industrial Courts as undesirable except in cases where all the parties consented to his appearance."
' The learned Judge further distinguished the case of Daud Hosiery Mills v. Hazrat Muhammad Yousuf (sic) on the ground:--- "A beneficial interpretation can only be given where the language is not clear and two or more different interpretations can safely be given to it but here, in my opinion the word "himself" need no other interpretation except "workman himself" or "through his two other agencies" as provided in the section to bring his grievance before the employer and not through an Advocate. Ignorance or illiteracy of the workman in the country is generally well known and it cannot be said that Legislature could remain ignorant of the fact. Hence, this fact, in my opinion, cannot be a valid ground to give a wider interpretation to the word "himself" ."
9. Further the same question again came before honorable Supreme Court of Pakistan which has been decided and reported in PLD 1980 Supreme Court 80 wherein held, "Now looking at subsection (1) of section 25-A of the Ordinance, I find that the word "himself" is prefixed by the word "either" and coupled with the word "or through his Shop Steward or Trade Union" the word "either" means "one or the other" and the word "through" denotes the concept of agency. Therefore, in construing the word "himself" the words "either" and "through" cannot be overlooked. The former refers to the alternatives while the latter means a medium of agency. The word "himself" means "the emphatic form of him, him in his real character". Clearly, therefore, in using the word "either" the Legislature provided alternatives to the workman or his agent such as the Shop Steward or the Trade Union; and if the concept of agency is to be regarded as inherent in the word "himself" then plainly it would be against its real meaning and this could not be the intention of the Legislature which has purposely used this word to avoid legal quibbles as rightly held in Hussain Textile Mills versus Muhammad Ishaq. The legislative intent seems to be to avoid interference by any other outside agency. It would appear from the scheme of the legislation that the appearance through legal practitioner is restricted and wherever he is eligible to appear it has been so enacted. Section 49 of the Ordinance makes this intent obvious and in this view of the matter it would be anomalous to introduce the concept of agency in the word "himself" for in that eventuality the object of the law can easily be defeated."
10. The learned counsel for respondent/applicant referred an authority reported 1986 PLC 280 passed by Appellate Tribunal Punjab wherein held, "S. 25- A---Grievance notice by lawyer and also signed by workman valid."
' The other referred authority is 1988 PLC 939 wherein held, "S. 25-A---Grievance notice---Employee an ex-service man, himself serving grievance notice but getting it forwarded by secretary soldiers board- such notice sent to employer, held- was legal in order."
' The third authority referred is 1993 PLC 450 is in respect of presentation of grievance petition through lawyer is not helpful to the learned counsel.
11. The first cited authority passed. By Appellate Tribunal Punjab whereas the second authority passed by learned single Judge of Lahore High Court. The interpretation of "himself" and "either" fully explained by Honorable Supreme Court of Pakistan and the conclusion drawn is that the grievance notice issued by counsel is not a legal grievance notice.
12. Another aspect of the case is that the grievance petition before learned Labour Court is with regard to the suspension of the applicant/respondent but later on they were terminated which has not been challenged in pending grievance petition before learned Labour Court. The prayer clause on grievance notices reproduced as under which is not with regard to their termination:--- "It is therefore humbly requested that keeping in view the above fact and circumstances my client may kindly be allowed to perform his duties and his gate stopped decision be withdrawn and he be restored on his duties with full backbenefits obliged."
13. Admittedly in view of the discussion of the superior courts an aggrieved person may not be nonsuiting on the technical grounds but section 41 of BIRA as well as other Labour Laws in respect of serving the grievance notice is mandatory which has been fully explained by honorable Supreme Court of Pakistan in above cited authority. In view of above law and authority grievance notice has not been served according to mandatory provision of law therefore the grievance petition pending before learned Labour Court is not entertainable.
14. Consequently appeal/petition is allowed the order dated 12-10-2011 passed by Learned Labour Court 1st Balochistan is set aside and the grievance petition pending before Learned Labour Court 1st Balochistan is dismissed being not entertainable in the light of section 41 of BIRA, 2010.
15. The copy of order along with original record of trial court be sent to trial court. Case after completion be consigned to record.