' ABDUL GHIAS NOUSHERWANI (MEMBER).--- This appeal is directed against the order dated 11-8-2011 passed by learned District and Sessions Judge. 1st Labour Court, Balochistan whereby the application/petition under section 46 of IRO, 2002 was dismissed.
2. For disposal of this appeal briefly stating the facts according to grievance application that the appellant was initially employed on the basis of contract as inventory clerk in Basic Pay Sacale-8 (Rs:1140-65- 2115) vide office memo. No,237-Estab/Gen.1570 dated 29 June, 1994 and subsequently formal appointment orders for extension of the Contract were issued on 22-1-1994 w,e,f, 18, August 1994. The appellant was re-designated as Key punch operator vide office order No,EDP/(PF)/ICPLUS/16 dated 26-12-1995. On 16-3-1996 the appellant was again re-designated as Data Entry Operator vide office order No,242-ESTT. The appellant has been performing his duties as USC Quetta with full devotion, zeal and enthusiasm. He has successfully completed different training session of Computer Staff and performed his duties to the entire satisfaction of his superiors in the interest of Corporation. Unfortunately the contract of appellant was surprisingly terminated contrary to the facts and law.
3. It is necessary to mention here that after abatement of the appeal of the applicant before Learned Federal Service Tribunal in view of Judgment of Honorable Supreme Court dated 27-6- 2006 grievance application filed on 8-11-2006 before Learned Labour Court which was disposed of by means of order dated 21-5-2008 wherein observed:--- "under section 2-A of Federal Service Tribunal No, (LXX) provides that all employees of Government owned corporations, companies and other organizations have been declared as civil servants for the purpose of Federal Service Tribunal Act, 1973, as such there service matters will be dealt with by the Federal Service Tribunal and this Court has no jurisdiction to try service matter of utility stores under IRO. The application returned for its submission to the competent Court and the counsel for applicant has no objection on the same."
4. A review application has been filed for recalling of above mentioned order which was also dismissed for want of jurisdiction by means of order 20-9-2008.
5. Against above mentioned two orders Labour Appeal No,44 of 2008 file in this Tribunal which was allowed by means of Judgment dated 26-3-2011 wherein orders dated 20-9-2008 including order 21-5-2008 were set aside and matter was remanded for decision on merits.
6. The learned counsel for appellant contended that the grievance application was dismissed on the point of non-serving the grievance notice and ignored the departmental appeal and the proceedings before Federal Service Tribunal. Further contended that after abatement of appeal the appellant was mandated by the apex Court to approach competent forum within 90 days and the appellant filed application before Learned Labour Court within time. Further contended that the Learned Labour Court wrongly assumed that grievance notice has not been served by ignoring the departmental appeal dated 22-7-2004 which is the grievance notice. Finally contended that the applicant served the respondent from 1994 till 26-6-2004 in different position therefor the applicant was not a contract employee. On the other hand learned counsel for respondent contended that the appellant was a contract employee and he was terminated on the allegation of misconduct.
Secondly contended that according to IRO 2002 no grievance notice has been served nor the evidence indicate that any grievance notice has been served upon respondent.
7. On perusal of available record and Judgment impugned herein transpired that the application of appellant was dismissed after discussion of two issues i,e, first maintainability of application as per provisions of IRO 2002 that the applicant/appellant does not fall within the definition of worker or workman which was decided in favour of appellant. Second issue about non-service of grievance notice which was decided against the appellant whereof dismissed the application with the following observations:--- "As the material and important issue i,e, No,2 has been resolved against the applicant therefore there is no need to discuss the other issues or merits and demerits of the case hence the application filed by applicant is hereby dismissed."
' The order sheet dated 13-6-2007 indicates that two legal objection raised before the Learned Labour Court, first was the non-service of the grievance notice to respondents by the applicant as required under section 46 of IRO 2002 second legal objection was that the under reference grievance application was barred by time both the legal objections discussed in length by the Learned Labour Court and rejected the legal objection in the following term:- "thus in the nut-shall it is concluded that as the under reference case have been abated from the Federal Service Tribunal and have filed in this Court afresh under the provisions of IRO 2002, no preliminary proceedings are required to be followed by the applicants i,e, serving of grievance notice to the respondent before approaching this Court. Further this matter/case is also not time barred solely on this ground and deemed to be within time"
' It is general principle and practice that once a legal objection/point has been decided by the same forum against which no appeal/revision has been filed and gain its finality, the same legal point/objection cannot be decided in negative by the same forum without review of the previous order.
8. The learned counsel for appellant contended that the Learned Labour Court ignored the departmental appeal and proceedings before Federal Service Tribunal and referred an unreported Judgment, of Honorable High Court of Balochistan in C.P. No,54 of 2011 wherein it is held:--- "8. It is the case of respondent No,1 that after getting acquittal from the criminal charges by this Court the respondent No,1 preferred departmental appeal and thereafter approached the Federal Service Tribunal, where the matter remained pending till 27th July, 2006 and in view of the judgment dated 27th June, 2006, passed by the apex Court in Civil Appeals Nos.792 of 2005 to 816 of 2005 etc. With regard to section 2(A) of the Service Tribunals Act, 1973 the appeal of respondent No,1 was held abated and the respondent No,1 was mandated by the apex Court to resort to' the competent forum for rederssal of his grievance within 90 days and the bar of Limitation provided by respective laws was held not to operate till the expiry of the stipulated period. Hence under these circumstances, the question of limitatipn for non-suiting the respondent No,1 does not arise at all. Even otherwise the superior Courts have always encouraged decision of cases on merits instead of non-suiting litigants on technical reasons including the ground of limitation. Reference in this regard is made to the case of Muhammad Hanif Bukhari v. President, National Bank of Pakistan 2004 PLC (C.S.) 1014.
9. The respondent No, 1 under the above circumstances, rightly approached the respondent No,2 under section 46 of the Industrial Relations Ordinance, 2002 for redressal of his grievance and the department appeal of the respondent No,1 can be treated as grievance notice in view of the principle laid down in the case of Nadeem Ahmed Qureshi v. Habib Bank Limited ' 2009 PLC 160."
The learned counsel further referred a reported judgment of honorable High Court of Karachi reported 2009 PLC 160 wherein held:--- "S.18. Has not prescribed any particular format through which workman should bring his grievance to the notice of employer. Appeal filed by bank employee against order of his compulsory retirement to the president of the bank would be grievance notice within meaning of section 18."
9. The learned counsel for respondent contended that grievance notice to serve on employer is the mandatory provision before filing grievance petition. In support of his contention he referred a reported Judgment in PLD 1991 Supreme Court 258 wherein it is held:--- "Ss. 25-A (1) (2) & 4---Worker is allowed to seek redress of his grievance by approaching his employer---employer in such a case is required to communicate his decision within 15 days of the grievance being brought to his notice---if the employer fails to communicate his decision within the said period or if the decision is communicated but the worker is dissatisfied with such decision, the worker may take the matter to the Labour Court within a period of two months from the date of the communication of the decision by the employer"
' This authority about non-serving of grievance notice of honorable Supreme Court of Pakistan is not applicable in the case in hand because in the referred authority no departmental appeal had been filed by the workman whereas in the instant case departmental appeal has been filed on 22- 7-2004 within time. The appellant after filling of departmental appeal approached the Federal Service Tribunal wherein his appeal was abated in view of the decision of honorable Supreme Court in Civil Appeals Nos.792 of 2005 to 816 of 2005 etc. With regard to section 2(A) of the Service Tribunals Act, 1973 and allowed three months' time to approach the competent forum and Bar of the limitation provided by the respective Laws was held not to operate till the expiry of stipulated period. One of these cases has been decided by the learned Division Bench of Honorable High Court of Balochistan and relevant Para has been reproduced in Para supra.
' The learned counsel for respondent contended that appellant was terminated on 26-6-2004 and he approached Labour Court on 29-10-2006 after laps of about four years which is hopelessly barred by time. In support of his contention he referred a reported judgment in 2007 PLC (C.S.)
849) but this authority is pertain to a transfer case. He referred a reported Judgment of Labour Appellate Tribunal Punjab reported in 1998 PLC (sic) wherein grievance petition filed after delay of more than seven years. His other authority 1997 PLC 488 of Labour Appellate Tribunal Punjab wherein the grievance notice and grievance application filed after more than two years and last authority of the same Labour Appellate Tribunal wherein delay caused about 11 years in all above referred authorities departmental appeal had not been discussed.
10. In view of above discussion with reference to order dated 13-6-2007 wherein the two legal issues has been decided in favour of appellant where after one of those issues decided against the appellant in order impugned whereof his application was dismissed, on the principle laid down in above citations the learned Labour Court wrongly dismissed the application of appellant on the point of non-serving of the grievance notice.
11. Resultantly the appeal is partly allowed and the order/judgment dated 11-8-2011 passed by Learned District and Session Judge 1st Labour Court Balochistan is set aside and the case is remanded to the said Learned Labour Court for decision on merit due to order dated 13-6-2007 and for the reason that the Honorable Superior Courts have always encouraged decision of cases on merits instead of non-suiting litigants on technical reasons including the ground of limitation.
12. The copy of order along with original record of trial court be sent to trial court. Case after completion be consigned to record.