SHAHNAWAZ TARIQ, J.--- ' Through instant petition, the petitioner Messrs Moeen Weaving Factory has sought following prayer:--- "That this Court may be pleased to set aside all orders mentioned above and grant full protection/ exemption to the present petitioner from paying any amount against the alleged claim of the respondent No.l."
2. Relevant facts pertaining to instant petition are that the respondent No.1 Muhammad Siddique filed grievance application under section 25-A of Industrial Relations Ordinance, 1969 against the petitioner factory, challenging his verbal termination from service by the proprietor of the petitioner. It is further stated that the respondent No.1 was employed by the petitioner factory as Weaver in the year 1977 and being a permanent worker of the petitioner, he performed his duty up to 31st January, 2002, but on 1-2-2002 when he joined his duty, the proprietor of the petitioner verbally restrained the respondent No.1 from performing his duty and no written termination order from of his service was issued by the proprietor. Being aggrieved of said illegal act, the respondent No.1 sent grievance notice to the petitioner, which was neither replied by the proprietor of the petitioner nor he was reinstatement in his service.
Accordingly, the respondent No.1 approached the Labour Court, Hyderabad by filing grievance application against the petitioner to set aside the illegal verbal termination order and reinstate him in his service with full back-benefits.
3. The petitioner filed written statement and challenged the maintainability of the petition, status of the petitioner, jurisdiction of the Labour Court and cause of action to the petitioner for filing of his grievance application. The petitioner had pleaded that the respondent No.1 neither worked in the factory nor was a permanent worker. It was further pleaded that there were less than 20 employees working in said factory, therefore, Labour laws were not applicable, as such, question of termination from service to the respondent No.1 does not arise at all.
4. From the pleadings of the parties, following issues were framed by the learned Labour Court:---
(1) Whether the grievance petition is not maintainable at law?
(2) Whether the applicant is entitled to any relief claimed for?
(3) 'What should the order be?
5. The respondent No.1 filed his own affidavit and repeated the same facts as mentioned in the grievance application and he was cross-examined by the learned counsel for the petitioner.
The respondent No.1 's witnesses namely Asghar Ali and Muhammad Ibrahim also filed their affidavits in support of claim of the respondent No.1 that he was employee of the petitioner factory and was working since 1977. Both witnesses were cross-examined by the learned counsel for the petitioner.
6. In rebuttal, the proprietor of the petitioner namely Moinuddin filed his affidavit and repeated his earlier claim. One another Moinuddin, a worker of petitioner factory also filed his affidavit in support of the claim of the proprietor of the petitioner, and stated that there are only two looms in the factory and he has been working on one loom. One Ziauddin, a worker of the factory also filed affidavit in support of the proprietor, however, in his cross-examination, the witness admitted that the respondent No.1 was employed as worker in the factory prior to his joining the petitioner, as respondent No.1 had spoiled the material of the factory, therefore, he was removed from his service by the proprietor.
7. The learned counsel for both the parties filed their written arguments in support of their respective claims before the learned Labour Court.
8. On the application of the respondent No.1, the list of workers of the looming factories of Tando Adam, was called from the Assistant. Director Labour Registration, Hyderabad, who produced the certified copies of registered workers showing the name of the respondent No.1 at Serial No.168 as worker of the petitioner factory.
9. The learned labc.ur Court after considering the material available on record allowed grievance application of the respondent No.1, holding that the respondent No.1 was worker of the petitioner factory and labour laws are very much applicable upon the petitioner, although the respondent No.1 has not filed any documentary proof in support of his claim, but the list of workers produced by Assistant Director Labour Registration, Hyderabad has confirmed the employment of the respondent No.1 at S.No.168 as worker of petitioner factory.
10. The relevant portion of impugned order dated 22-4-2004 passed by the learned Labour, Hyderabad is reproduced as under:-- "Thus it is proved that the petitioner is a worker and the petition is maintainable and even the court has jurisdiction to entertain the petition as it is alleged that the petitioner was removed from service without complying the legal formalities. The respondent even failed to positively prove that the labour laws were not applicable to his case. For that he should have given the details of his machines, workers, products and even the payments which he was being made to the workers and he should have brought on record of this Court clearly and in details to establish his plea. He failed to do so. With the result the contention of petitioner will prevail that the labour laws were applicable to the respondent factory. Furthermore the denial of status of petitioner by the respondent further create doubts regarding his all contentions and he should have produced positive evidence in support of his case which he failed. Admittedly, no written order of termination was given to the petitioner showing the explicit reasons of his termination of service, hence termination of petitioner was illegal and declared so. Since the services of the petitioner were terminated without observing the legal formalities, therefore, termination was not justified. So far as the case of reinstatement is concerned the relations between the parties are strange. It is not justified to create disturbance in the smooth working of the factory of respondent, therefore, in lieu of reinstatement of petitioner in service, I under section 46 subsection (5) hereby order that the respondent shall pay compensation equivalent to 30 months salary at Rs. 3000 per month to the petitioner."
11. The petitioner challenged the order passed by the learned Labour Court by filing Labour Appeal No.127 of 2004 before this Court, but said labour appeal was dismissed for non- prosecution on 4-5-2006.
12. It is further pleaded by the present proprietor namely M. Abid of the petitioner that he was not aware of the above proceedings, as his father had engaged Mr. Rafiq Ahmed Advocate, but said advocate did not inform the present proprietor regarding the dismissal of labour appeal, while the father of present proprietor had died on 8-1-2005. The petitioner approached said learned counsel at Hyderabad and filed application for restoration of said appeal along with application under section 5 of the Limitation Act on 5-1-2007, but said application was also dismissed by this Court being time-barred.
13. The respondent No.1, Muhamm ad Siddique filed his Petition No.2 of 2010 before the Commissioner Workmen's Compensation Authority, District Sa nghar at Mirpurkhas, but due to non appearance of the proprietor of petitioner, ex parte order dated 4-8-2011 was passed against the petitioner for payment of Rs.6,84,000, and such notice was served upon the petitioner through Assistant Commissioner, Tando Adam, therefore, the petitioner had filed application under. Order IX, rule 13 read with section 151, C.P.C. for getting the ex parte order set aside, but said application was also dismissed on 6-2-2012.
14. The respondent No.1 filed objections/counter-affidavit in instant petition that instant petition is not maintainable in law. The order dated 22-4-2004, passed by the learned Labour Court, Hyderabad has attained finality, as said decision was challenged in the Labour Appeal No.127 of 2004 before this Court but said appeal was dismissed in non-prosecution on 4-5- 2006, and restoration application was filed by the present proprietor after delay of 8 months along with condonation application, but in the meanwhile, Labour Appellate Tribunal was established, therefore, application filed by the petitioner was transferred by this Court to the Labour Appellate Tribunal being Labour Appeal No.106 of 2010 which was also dismissed on the ground of limitation vide order dated 24-11-2012.
15. Learned counsel for the petitioner has contended that there was no relationship of employer and employee between the petitioner and respondent No.1, as the respondent No.1 had failed to produce any documentary proof to be the employee of the petitioner before the learned Labour Court. He further submitted that the dispute in question is pertaining to the period while father of present proprietor namely Moinuddin had filed labour appeal through Mr. Muhammad Rafique Advocate and same was dismissed by this Court, but the present proprietor was totally unaware from the previous proceedings and as soon as he came into the knowledge of said appeal, he immediately approached this Court as well as Labour Appellate Tribunal, but the explanation furnished by the petitioner was not considered properly, therefore, in the interest of justice, the impugned order dated 22-4-2004 passed by the Labour Court, Hyderabad and orders dated 4-8-2011 and 6-2-2012 passed by the learned Commissioner Workmen's Compensation and Authority under Payment of Wages Act, District Sa nghar at Mirpurkhas may be set aside.
16. Learned counsel for the respondent No.1 has vehemently resisted the submissions made by the learned counsel for the petitioner, and contended that the respondent No.1 was employed by the petitioner factory through its previous proprietor but his services were terminated verbally, as such, required grievance notice was served upon the petitioner for reinstatement in service. The petitioner failed to allow the respondent No.1 to join his duty, therefore, grievance application was filed before the learned Labour Court, Hyderabad, and after recording evidence of the parties as well as concerned official of the Labour Department, the learned Labour Court, Hyderabad set aside the said termination order and awarded thirty (30) month's months' salary at the rate of Rs.3000 per month as compensation. Learned counsel further submitted that proper opportunity was afforded to the present proprietor as well as the original owner during his life time by all the forums, therefore, the plea now raised by the petitioner regarding unawareness of the previous proceedings has no justification and he is bound to comply the orders passed the concerned Courts.
17. I have heard learned counsel for the petitioner, learned counsel for respondent No.1 and thoroughly examined the material available on record with their assistance.
18. Perusal of record reflects that the respondent No.1 was employed in the year 1977 by the father of present proprietor of the petitioner, thereafter on 1-2-2002 services of the respondent No.1 were terminated verbally by the deceased father of the present proprietor. Admittedly, neither written termination order was issued to the respondent No.1 nor any show-cause notice was issued in this regard. The respondent No.1 after serving grievance notice, filed the grievance application under section 25-A of I.R.O.
1969. It is also an admitted fact that the respondent No.1 was not issued written appointment letter by the petitioner, therefore, after recording evidence of both sides, on application of respondent No.1, the list of workers of the looming factories, was called from Assistant Director Labour Registration, Hyderabad, who produced certified copies of said list showing the name of the respondent No.1 at Serial No.168 being the worker of the petitioner factory. The respondent No.1 has also examined two witnesses in his support his claim. Amazingly, petitioner's witness namely Ziauddin had admitted during his cross-examination the fact of employment of the respondent No.1 in petitioner factory. The above facts, circumstances and evidence available on the record prima facie has established the relationship of employer and employee between the petitioner and the respondent No.1, and also confirmed the factum of non-issuance of appointment letter by the petitioner to the respondent No.1, which is also gross violation of mandatory requirement of section 2-A of Industrial and Commercial Employment (Standing Order) Ordinance, 1968, whereby every workman at the time of his appointment, transfer or promotion shall be provided with an order in writing, showing the terms and conditions of his service, therefore, non issuance of such order is the gross violation of provisions of relevant law.
19. The conduct of the earlier proprietor as well as the present proprietor of the petitioner factory appears not to be neither trustworthy, honest and truthful as such the petitioner has not invoked the jurisdiction of this Court with clean hands. I am of the considered view that the learned Labour Court has rightly concluded that the respondent No.1 was permanent worker of the petitioner factory and he was verbally terminated from his service without issuing written termination order.
20. The other important aspect of controversy is grant of 30 months' salary in lieu of reinstatement of the respondent No.1, the learned Labour Court has also rightly considered that the strained and tensed relations between the petitioner and the respondent No.1 would not allow in creating and maintaining a peaceful, supportive and conducive working environment in the factory. The grant of compensation in lieu of re-instatement is covered under section 46(5) of I.R.O., 1969, therefore, the judgment passed by the learned Labour Court cannot be treated an illegal. verdict.
21. The Commissioner Workmen's Compensation and Authority under Payment of Wages Act, Sa nghar at Mirpurkhas is the proper forum for recovery of wages of any employee from the employer, therefore, the proceedings sub-judice before said Authority cannot be termed without lawful authority and jurisdiction, and the petitioner has failed to prove its objection while challenging the jurisdiction of the said Authority being coram non judice, therefore, there remains no ambiguity that the proceedings initiated by the respondent No.1 against the petitioner for recovery of his withheld dues, were adjudicated by the competent forum.
22. It is well-established law that every party is entirely responsible for the act and omission of his counsel. In present controversy the petitioner cannot take any concession that his advocate had not informed him about the dismissal of labour appeal by this Court, even otherwise it was prime duty of the petitioner to remain vigilant to pursue his cause.
Admittedly, the petitioner has failed to establish its case before all appropriate forums.
23. For the reasons discussed supra, I am of the considered view that the petitioner has failed to point any illegality or irregularity committed by the learned Labour Court while passing impugned judgment as well as orders passed by the Commissioner Workmen's Compensation and Authority under Payment of Wages Act, Sa nghar at Mirpurkhas.
24. Consequently, the impugned order dated 22-4-2004 passed by the learned Labour Court, Hyderabad, as well as impugned orders dated: 4-8-2012 and 6-2-2012 passed by the Commissioner Workmen's Compensation Authority, District Sa nghar at Mirpurkhas, do not call for any interference and same are maintained. Accordingly, instant petition being devoid of legal merits stands dismissed.