' ABDUL GHIAS NOUSHERWANI (MEMBER).--- Through this common judgment I intend to dispose of above mentioned Appeals 54 of 2011, 57 of 2011 for the reasons that in Appeal Number 54 of 2011 the appellant challenged the order of learned Labour Court dated 20-10-2011 wherein the grievance petition has been accepted with no back-benefits whereas in L.A No,57 of 2011 the appellant seeks back-benefits. Both the appeals are the outcome of judgment under appeal.
2. Brief facts of the case are that the appellant/respondent was serving as Arabic teacher in helper high school about 10 years ago without any complaint. Subsequently it appears that in the year 2003 he was appointed as senior subject teacher (Senior Section in Arabia). However he was terminated on 18-12-2007 on allegation that he has propagated one unhappy incident happened in school on 28-12-2007. In this connection his explanation was called on 3rd December, 2007 whereof the appellant/respondent replied the same denying the charges of propagating the said incident and consequently he was terminated by the principle on 18-12-2007. On 8-2-2008 an application was submitted to the president of helper association of Pakistan and thereafter grievance petition preferred before learned 1st Labour Court of Balochistan which was allowed by means of order under appeal. Hence the above mentioned appeals filed before this Tribunal.
3. The learned counsel for appellant submitted that neither the helper school and college are industries nor the applicant/respondent falls within the category of worker and workman. Secondly contended that no grievance notice has been issued prior to filing of grievance petition. Lastly submitted that due to the act of respondent a bad situation was created in the school. On the other hand the learned counsel for respondent submitted that grievance notice has been issued on 8-2-2008 and the respondent was terminated without any show cause and inquiry. Lastly submitted that the respondent was terminated because of immoral incident happened in the school and the same has been brought in the notice of appellant.
4. The first objection of learned counsel for appellant that neither the institution is an industry nor the respondent fall under the category of worker and workman. Against this objection the learned counsel for respondent referred the judgment reported in 1994 SCM R 2213 with the regard to the definition of workman. He also referred another judgment reported in 1996 SCM R 1606=1996 PLC (C.S.) 653 but both the authorities are .Not applicable in appeal in hand for the reasons that second authority relates to Habib Bank Limited and the first one was with regard to a case of a carpenter. Admittedly the helper school is running under helper association of Pakistan having its schools and colleges in different parts of the country. Secondly the institution receive fee from students. Furthermore nothing was brought on record to prove that they engaged less than 20 workers and admittedly it is a unit of joint stock company. The educational institutions, universities and boards are not included in the definition of commercial establishment under the ordinance which are distinguished from the industries as defined in Industrial Relation Ordinance, 1969 and have been held not to be the industry within the meaning of Industrial Relation Ordinance Even if it is held that the appellant is not industry as defined in I.R.O, still the appellant would not be barred from enforcing his rights guaranteed under Standing Order Ordinance by filing petition under section 25-A, I.R.O. Because this section entitles the workman to seek relief to enforce the rights which are granted to him by any law. In support of above mentioned principle the reference of reported judgment 1990 PLC 675 is enough where in it is held:--- "Section 25-A West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), Termination of services---Appellant was employed as a teacher in respondent Private School---grievance petition of appellant was dismissed on grounds that she was not a workman and there was no evidence to show that more than twenty workers were working in respondent's establishment, so as to make West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 applicable to it or that respondent being a company which promoted education for welfare of Society was exempted from application of Standing Orders Ordinance job of appellant was to impart knowledge of letters and words to students by writing same on blackboard, write on their copies and check and correct writing of students which part of her duties involved manual and clerical labour and could neighter(?) be considered as incidental or ancillary to her job but one of the main parts of her job-appellant was as such a "workman"---Respondent also failed to prove that number of workmen employed by it was less than twenty or Standing Orders Ordinance, 1968 was not applicable---Evidence showing that appellants services were terminated for inefficiency or misconduct as she failed to improve her teaching standard---Held, neither provisions of Standing Orders Nos.12(3) nor 15(4) which were applicable had been complied with by respondent---Order of termination was, therefore illegal---Order was set aside and appellant was ordered to be reinstated in service."
' This judgment is based on the following citation of superior courts, ' Security Paper Limited v. The Sindh Labour Appellate Tribunal PLD 1988 SC 180 rel.
' Abdul Wahid v. Messrs Bombay Silk Mills 1988 PLC 221; Employees Union, Jamia, Karachi v. Registrar of Trade Unions, Sindh and 2 others 1981 PLC 403; Ghulam Sarwar v. Principal, Government Teachers Training College, Khairpur 1982 PLC 771; Muhammad Manshah v. Ali Industrial Technical Institute 1985 PLC 604 and Anjuman Faizul Islam v. Pakistan and others 1988 PLC 937 ref. Therefore the institution and the respondent covered under Standing Order Ordinance.
' The learned counsel submitted that the respondent has not issue grievance notice. The learned counsel for respondent contended that grievance notice was issued on 8-2-2008. From perusal of record it reveals that on 3-2-2008 an application submitted before president helper association of Pakistan. Now the question is whether this application covered the mandatory provision of issuing of grievance notice. The contents of the application reveals that the same is not only an application but also an appeal and representation before higher authorities. In my humble view representation or appeal addressed to appellate authority can be treated IA as grievance notice.
6. Main question is this that respondent was terminated on 18-12-2007 and above said application/appeal was presented on 3-2-2008 which covers the period of 3 months but grievance application was filed on 22-3-2010. The learned counsel for respondent contended that the respondent approached the Civil Court wherein his suit was dismissed for want of jurisdiction. In section 41 of BIRA 2010 it is mentioned that grievance notice has to be brought within three months of cause of action and the employer shall decide the same and communicate the worker within fifteen days. Provided that a worker who desired to so take the matter to the Labour court shall do so within the period of two months from the date of the communication of the employer or as the case be from the expiry of the period mentioned in subsection (2) or subsection (3) as the case may be. BIRA 2010 it(?) is quite silent if the grievance notice has not been decided and communicated by the employer than what will be limitation of filling of grievance petition. IRO 1969 is also on the same pattern be that as it may in a reported judgment 1989 PLC 836 wherein held, "Grievance Petition---Limitation:- Impugned order challenged in departmental appeal and such appeal not yet decided---The petitioner workman, in circumstances, held justified in waiting for decision of departmental appeal, and after considerable time serving grievance notice and then filling grievance petition. Held since departmental appeal was still pending no question of limitation arose because limitation would have started from date of dismissal of departmental appeal."
7. Though the above mentioned authority is not a direct citation about the question in discussion but in this observed that no limitation run for filling of grievance petition so long as application/appeal remained in pending. Further the word "Communication" of decision is very important mentioned in BIRA 2010 and IRO 1969. Meaning thereby that the option of "Communication" is available for filling the grievance petition. Moreover in section 41(5) of BIRA 2010, it is provided:--- "In Ajudicating and determining a grievance under subsection (4), the labour court shall go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case."
' Therefore the evidence of both the parties are required to be examined in view of section 41(5) of BIRA 2010.
8. AW-1 Shams-ud-Din support the claim of respondent in cross-examining he states:- ' AW- 2 Naseeb Ullah he also support the claim of respondent and in cross-examination he admit that appointments of Helper School are made by Association. Respondent himself stated the facts of his grievance petition and in cross-examination nothing came in favour of appellant. Saeed Ahmed the representative of appellant in his examination in chief stated that applicant was terminated on his political activities in cross examination he admitted:- {{ URDU TEXT }}
9. In the light of above mentioned evidence it is clear that the respondent was terminated without following the mandatory requirements before termination. He was only served with an explanation, thereafter without any inquiry and personal hearing he was terminated from services.
10. The appointment condition order of respondent dated 25-08-2003 at para 4 has not been complied by the appellant where in it is mentioned:-- 'If your work deteriorates after you have been formally confirmed or you are otherwise found inefficient/undesirable, you will be served a show cause notice and your case shall be referred to the Governing Body of the college for final decision.
11. However if the explanation be treated as show cause even than his case have not been referred to the Governing Body for the decision rather he was terminated by the Principal appellant.
12. Whatever discuss here the upshot of appeal is this, the respondent was terminated illegally and learned Labour court rightly accepted his grievance petition and no illegality/irregularity appeared in the judgment of learned Labour Court. Therefore appeal is dismissed with no order as to cost.
13. Labour Appeal No 57 of 2011 In view of evidence recorded by learned Labour court nothing came on record that during his termination the appellant was jobless, therefore in such situation back benefits has not been allowed by learned Labour Court rightly. Therefore the appeal is dismissed with no order as to cost.
14. A copy of this order along with original record of be sent to trial court for information and compliance. Case file after completion and compilation be consigned to record.