' This appeal is directed against a decision of the learned IVth Labour Court given on 28th May, 1980, dismissing the appellant's grievance petition made under section 25-A, I.R.O., challenging his dismissal from service by the respondent Anjuman.
2. The case of the appellant as disclosed in his grievance petition, which was filed on 26th November, 1974, is that the respondent Anjuman was enraged in the business of milk selling, that the appellant was employee by the said Anjuman since 1971, on a salary of Rs, 300 per month and that on 18th April, 1974, the Secretary of the respondent Anjuman dismissed the appellant by a verbal order, without any notice, because the appellant demanded increase in his emoluments.
The respondent Anjuman resisted the appellant's grievance petition on a number of grounds but the main ground taken was that since it was neither an industrial nor Commercial establishment, the appellant's grievance petition was not maintainable.
3. The case appears to have had a long and chequered carrier. The grievance petition was originally filed before a Junior Labour Court which dismissed the same on 13th January, 1975, for non-prosecution. On appeal by the app!Llant herein, the learned Labour Court remanded the case to the learned Junior Labour Court with a direction to proceed with the case from the stage where it was dismissed for non-prosecution, Thereafter, on 19th June, 1975, an ex parte order was made by the learned Junior Labour Court directing the re-instatement of the appellant, since the respondent Anjuman had allegedly refused to receive the process of the Court after remand of the case. 2 separate proceedings were then initiated, one by the appellant herein and the other by the respondent Anjuman. The latter approached the learned Junior Labour Court for setting aside the ex parte order and proceeding with the case afresh, while the appellant filed criminal proceedings against the respondent Anjuman. On 29th November, 1975, the learned Junior Labour Court set aside the ex parte order and permitted the respondent Anjuman to lead evidence in defence.
Against the said order, the appellant once again approached the learned Labour Court in appeal.
The learned Labour Court allowed the appeal and set aside the order of the Junior Labour Court for the reopening of the case. Against the order of the learned Labour Court, the respondent Anjuman preferred a Constitutional Petition and the High Court by its order, dated 22nd April, 1979, set aside the appellate order of the learned Labour Court and remanded the case with a direction to decide the application made by the respondent Anjuman for setting aside the ex parte order. On remand, the learned Labour Court, which was required to deal with the case in view of the fact that the Junior Labour Courts had been abolished, allowed this application and after recording evidence in the case dismissed the appellant's grievance petition on the twin grounds that since the number of workmen in the respondent Anjuman is less than 20, the Standing Orders are inapplicable to it and the appellant's grievance petition could not be maintained and further that the appellant's grievance petition is barred by limitation.
4. Mr. Abdul Khalil, the learned counsel for the appellant, has assailed the impugned order of the learned Labour Court on 2 grounds. His first contention was that the learned Labour Court has wrongly taken the date of dismissal of the appellant as 18th April, 1974, on the basis of a typographical error in the grievance petition, whereas the correct date of dismissal was 18th September, 1974, and since the grievance notice was served upon the respondent Anjuman on 18th October, 1974, the grievance petition is in time. In support of his contention that the appellant had worked in the respondent Anjuman till September, 1974, the appellant examined himself and 2 other persons, namely, Muhammad Umar and Noor Muhammad. According to the appellant he had worked in the respondent Anjuman till 18th September, 1974, but he failed to produce any pay bill, voucher, receipt, entry from account books or any other document to substantiate his claim. He also failed to produce either of the grievance notices said to have been sent by him to the respondent Anjuman which may have thrown light upon the period for which the appellant was employed in the respondent Anjuman. The evidence of the appellant's two witnesses, Muhammad Urner and Noor Muhammad is equally unhelpful on this point. In his examination-in-chief Muhammad Umer has simply stated that the appellant was in the service of the respondent Anjuman till he was turned out of service verbally. He has given no date of his dismissal. However, in his cross-examination he has stated that he had seen the appellant working in the respondent Anjuman till September 1974. According to this witness he was formerly an employee of the respondent Anjuman like the appellant but he failed to produce any letter of appointment or other evidence in support of his contention. Be is obviously an interested witness as be bad been brought to the Court by the appellant himself. So far as witness Noor Muhammad is concerned, he like the Anjuman is dealing in milk business and hence there is competition between the Anjuman and the witness. Moreover, he was unable to say as to when and under what circumstances the appellant left the service of the respondent Anjuman. As such, little reliance can be placed on his testimony.
On the other hand there is evidence of Muhammad Khan, the President of the respondent Anjuman, and Muhammah Umar son of Ghulam Haider, the Secretary of the respondent Anjuman, to the effect that the appellant had tendered his resignation on 23rd June 1973, in order to seek better prospects and had absented himself from his duty with effect from 1st July, 1973. Very strong support to their evidence is provided by the resignation, dated 23rd June, 1973, of the appellant.
According to this resignation, which admittedly bears the signature of the appellant, the latter wanted his resignation to be accepted with effect from 30th June, 1973, and had categorically stated therein that he would not be reporting for duty from 1st July, 1973. I am, therefore, of the view that it has not been established that the appellant was in the employment of the respondent Anjuman after 30th June, 1973. As such, the appellant's grievance petition is not maintainable, being barred by limitation.
5. There is another equally strong ground for rejecting the grievance petition of the appellant. Since the appellant's grievance was against his wrongful removal from service, he could file a grievance petition only under the provisions of Standing Order 12(3) read with section 25-A, I.R.O. In other words he could only succeed in his claim if he could establish that the Standing Orders were applicable to the respondent Anjuman and that the said Anjuman was an Industrial or Commercial establishment for the purposes of the said Orders. It is the case of the respondent Anjuman that they employ only 4 to 5 workmen and certainly less than 20 employees. Neither the appellant nor his witnesses have been able to controvert this fact or to establish that the respondent Anjuman at any time employed 20 or more workmen. Mr. Abdul Khalil's contention was that no specific plea regarding the non-application of the Standing Orders was taken by the respondent Anjuman and consequently no burden lay on the appellant to establish the fact that the Standing Orders are applicable to the said Anjuman. It may, however, be pointed out that in their objections, the respondent Anjuman had raised the plea that the appellant's grievance petition was not maintainable. There was thus an indication given by the respondent Anjuman at the earliest stage that they are raising an issue as to the maintainability of the appellant's grievance petition. The non-application of the Standing Orders to the respondent Anjuman goes to the root of the appellant's claim and also to the jurisdiction of the Labour Court. As such, I am of the view that the learned Labour Court rightly rejected the appellant's grievance petition on the ground that Standing Orders were not applicable to the respondent numen.
6. For the foregoing reasons, I see no merit in this appeal and accordingly dismiss the same in lit nine.