' ABDULLAH BALOCH, MEMBER.--- This appeal is directed against the impugned judgment dated 08- 07-2015 passed by the Learned 1st Labour Court Quetta whereby accepted the application under section 41(1)(2) of Balochistan Industrial Relations Act, 2010 filed by the respondent.
2. Brief facts arises from the instant appeal are that the respondent filed an application before the Learned 1st Labour Court Quetta with the averments that he was initially appointed on contract basis with the appellants and thereafter on completion of three months probationary period his contract was extended from time to time and after spending six years, the management found the services of the respondent satisfactory, as such contract of the respondent was extended again and again by higher officials, thereafter abruptly without any cogent reason, the appellant No, 1 with the connivance of appellant No, 4 without any inquiry or show cause notice, terminated the services of the respondent against the norms of justice. It is further submitted by the respondent that, he rendered his services for more than six years, being workman, his services are govern and protected under the provision of Industrial and Commercial Employment (Standing Order)
Ordinance, 1968 and Balochistan Industrial Relations Act, 2010 as such his services could not be terminated in an arbitrary manner without observing required procedure.
3. The application of respondent was contested by the appellants by means of filing written statement, wherein raised certain legal objections on maintainability of application of respondent, as well as contested on merits too.
4. Out of the pleading of the parties, the learned Trial Court framed as many as 4 issues as under: "ISSUES:-
1. Whether the application filed by the applicant is time barred?
2. Whether the Termination Order dated 20-08-2014 was lawfully issued by the respondent No,1 after fulfillment of all codel formalities?
3. Whether the applicant is entitled for the relief claimed for?
4. Relief?"
5. After framing the issues, the parties were directed to produce their respective evidence, accordingly the parties produced their witnesses. After hearing the parties and perusal of record, the Learned Trial Court accepted the application of the respondent vide impugned judgment dated 08-07-2015, whereby reinstated the services of the respondent with all back benefits.
6. I have heard the counsel for the parties and perused the record.
7. Mr. Adnan Basharat learned counsel for the appellants contended that the respondent was admittedly appointed by the appellants in the year 2008, on the basis of contract, wherein terms and conditions of services were determined and agreed by both the parties, and services of the respondent could be terminated by the appellants at any stage. He further contended that the moral attitude and conduct of the respondent was not up to mark and there was several complaints against him, which created a law and order situation for the appellants and accordingly in a compelling position the appellants terminated his contract on 20-08-2014 and the same decision was conveyed to him on the said date. He further contended that the respondent replied the termination order dated 20-08-2014, on 28-08-2014 to the appellants through Email.
Since his reply was found not satisfactory, no further action was taken by the appellants. He further contended that the application under section 41 of Balochistan Industrial Relations Act, 2010 filed by the respondent before the Learned Trial Court was hopelessly time bared and not maintainable for want of limitation, because his services were terminated on 20-08-2014, but he was failed to issue any grievance notice to the appellants. Hence without issuing grievance notice and after lapse of six months the grievance application under section 41 of BIRA, 2010 is not maintainable. The learned counsel for the appellants mainly stressed the point of limitation despite arguing the matter on merits. In support of his contention he relied on case laws reported in 2012 PLC 331 and 2014 PLC 209.
8. Conversely, Mr. Abdul Zahir Khan Kakar, learned counsel for the respondent vehemently opposed the arguments so advanced by the counsel for the appellants and contended that the appellants did not observe any rules and regulation as provided under Industrial and Commercial Employment (Standing Order) Ordinance, 1968 and provisions of Balochistan Industrial Relations Act, 2010 and without issuing any Show Cause notice, conducting inquiry and without providing opportunity of being heard to the respondent, terminated the services of the respondent, illegally and unlawfully. He further contended that no allegation of misconduct or any other allegation leveled against the respondent in the letters of termination dated 20-08-2014. He further contended that the respondent timely issued grievance notice to the appellants through E-mail wherein submitted his innocence and agitated for his reinstatement vide E-mail dated 28-08-2014, 29-08-2014 and E-mail dated 02-09-2014, but the appellants by one or other pre-text kept the respondent in dark by assuring him for positive action of his reinstatement and thereafter the respondent again and again approached the appellants for taking action on his grievance notice, but no action was taken by the appellants. Hence the period elapsed during the course of pendency of grievance notice could not be hurdled in the way of filing of grievance application. He further contended that the action taken by the appellants is void ab initio, as such limitation cannot runs against a void order. As such the grievance application under section 41 of BIRA, 2010 filed before the Learned Trial Court was well in time and maintainable. In this regard he relied on the judgment reported in PLD 2002 SC 84 and another unreported Judgment passed by the Hon'ble Supreme. Court of Pakistan in Civil Appeals Nos.83 and 84 of 2006, in the title of "Fuji Fertilizer Company Ltd. v. National industrial relations Commission".
9. From the perusal of record it is revealed that, respondent was appointed as team leader (Zhob) on monthly salary of Rs,7000/- by the appellants on 12-05-2008 for the period of 12-05-2008 to 11- 05-2010, on probation period of first three months on contract basis.
10. It is also not disputed by the appellants that, services of the respondent was extended from time to time till the termination of his services. It is pertinent to mention here that no allegation of misconduct has been mentioned in the termination letter dated 20-08-2014 while the respondent remains in service for a period of six years without any break, hence his services have been governed and protected under the provisions of section 1(b) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, relevant portion is reproduced as under: "1. Classification of workmen.--- (a) Workmen shall be classified as-- 1) Permanent, 2) Probationers, 3) Badlis, 4) Temporary, 5) Apprentices.
6) Contract worker.
(b) A "permanent worker" is a workman who has been engaged on work of permanent nature likely to last more than nine months and has satisfactorily completed a probationary period of three months in the same or another occupation in the industrial or commercial establishment, including breaks due to sickness, accident, leave, lock-out, strike (not being an illegal lock-out or strike) or involuntary closure of the establishment 2[and includes a badly who has been employed for a continuous period of three months or for one hundred and eighty-three days during any period of twelve consecutive months]."
11. It is further observed that during the course of arguments it was also not disputed by the parties regarding the status of respondent, his services falls within the definition of workman and for termination of services of a workman, a proper mechanism is also provided in the Industrial and Commercial (Standing Orders) Ordinance, 1968, wherein it is provided that prior to taking final decision in a case of dismissal of a workman, the employee shall be given fair opportunity of being heard through Show Cause notice, conducting inquiry, but all such requisite formalities were not observed in the case in hand. Admittedly neither any Show Cause notice issued to the respondent nor any inquiry was conducted for findings of facts and fixation of responsibility, even otherwise the respondent was condemned unheard. (Audi Alterm Partem)
12. Now coming to the main objection of the learned counsel for the appellants that the application under section 41 of Balochistan Industrial Relations Act, 2010 of the respondent was hopelessly time barred and no grievance notice was issued by the respondents to the appellants. I have minutely examined the available record, admittedly the respondent was terminated on 20-08-2014 and the said termination order was communicated to the respondent through E-mail, and grievance notice issued by the respondent vide E-mail dated 28-08-2014, and thereafter reminded vide E- mail dated 29-08-2014 and thereafter again communicated the appellant vide E-mail dated 02- 09-2014. The record further reveals that the respondent continuously approached the appellants but appellants did not paid any heed. To the grievance of the respondent. The record further reveals that the respondent finally approached the appellants through application dated 29-12- 2014 for providing opportunity of hearing to explain his position and made therein request for his reinstatement. The such communications of the respondent was neither disputed nor denied by the appellants rather admitted.
13. All above correspondence indicates that the respondent was perusing for reinstatement of his services meaning thereby the respondent by means of E-mail and application brought his grievance in the notice of employer (appellants). Further, the purpose of serving grievance notice is to bring the grievance in the notice of employer before approaching Labour Court, the law/legislature is not provided a specific format for the serving of grievance notice, the aforementioned correspondence has not been disputed, therefore the grievance notice have been fully served in shape of aforementioned correspondences. The Hon'ble Supreme Court in the reported judgment NLR 2009 Labour 39 held, "If it is said that it was an appeal and not a grievance notice. I am afraid that the proposition is not based on correct footings because Section 18 of the Ordinance of 1968 speaks about bringing the grievance to the notice of the employer and not of any particular format through which the employee should bring his grievance to the notice of the employer, Hence the petition filed by the appellant before President of Habib Bank was well in time and had served the purpose. Therefore, grievance petition filed before Labour Court attainable"
14. Hence the objection of the learned counsel for the appellant to the extent of non issuing grievance notice to the appellants has not sustained and is overruled.
15. The next objection of the counsel for the appellants is limitation, whereas the counsel for the appellant relied upon the judgment passed by this Tribunal reported in 2012 PLC 331, relevant portion whereof reproduced as under:- "---Ss. 41 & 55(3)---Limitation Act (IX of 1908), S.5---Termination of service---Grievance petition-- -Limitation-- Employee who was terminated from service, issued grievance notice after 16 months of his termination and no sufficient cause had been mentioned for the purpose of condonation of such delay in filing grievance notice and grievance petition---Grounds mentioned in application of the employee filed under S.5 of Limitation Act, 1908, could not be deemed as "sufficient causes" in view of law, facts, circumstances and proceedings of the case---Contention of employee was that as termination order of was illegal and void, question of limitation would not arise--- Validity--- Such rule was not of universal application that in all cases of void orders, question of limitation was to be treated mere technicality and litigant was entitled to invoke the jurisdiction of a Court or Tribunal of competent jurisdiction at his will at any time without showing any exceptional circumstances for the delay---Order accordingly." (Underlined, emphasis provided)
16. In the aforementioned judgment the circumstances of the case was distinguishable because the grievance notice issued by the respondent/employee after lapse of 16 months, whereupon this Tribunal did not condoned the delay but in the case in hand the position is quite different, the grievance notice was issued by the respondent to the appellants well in time and this fact was not disputed by the appellants and that was the appellant to decide his grievance notice within stipulated time, but the appellants with malice intention delayed the decision by one or other pretext by means of false assurance to the respondent, as such respondent being in meager position did not able to resist. Such illegality on the part of authorities could not be ignored, respondent was awaited for decision and confident on their assurance, as such the respondent could not be penalized.
17. The learned counsel for the appellant further in support of his contention relied on the judgment reported in 2014 PLC 209, relevant portion whereof reproduced as under, "Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968) --- ----S.0s. 12 & 15(3)---Balochistan Industrial Relations Act (XIII of 2010), Ss.41 & 54(2)---Termination of service on ground of misconduct---Grievance petition---Delay, condonation of---Employee whose services were terminated after issuing him show-cause notice and holding enquiry on ground of misconduct, filed grievance petition against order of his termination with considerable delay---employee in his application for condonation, having failed to state sufficient grounds for said delay, on which ground his application was rejected---employee had also failed to file appeal against judgment of the labour Court within prescribed period of 30 days after delivery of certified copies as prescribed under S.54(2) of Balochistan Industrial Relations Act, 2010---in absence of irregularities and illegalities in impugned order of the Labour Court, impugned order was upheld: consequently appeal was dismissed. " (Underlined, emphasis provided)
18. It is to be pointed out that the above judgment is also distinguishable from the circumstances of the case in hand in that judgment the services of the employee were terminated after issuing him show cause notice and holding inquiry on ground of misconduct while, in the case in hand no requisite procedure was adopted.
19. Main point which needs consideration is that whether respondent was terminated according to prevailing Labour Laws i.e, Balochistan Industrial Relations Act, 2010 and Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, the available record suggest nothing about termination of respondent, meaning thereby the rules and regulations in respect of termination of regular employee was not adopted, rather the same has been violated. Balochistan Industrial Relations Act, 2010 and Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 providing a detail procedure for termination of an employee, that is permanent or work charge. It is settle principle of law that if some procedures are available for such purpose, the same should be followed, in this respect the Hon'ble Supreme Court of Pakistan in reported judgment 2010 PLC 259 held, "(b) Administration of justice: ' When a thing is to be done in the particular manner it must be done in that way and not otherwise."
20. Even otherwise the superior Courts always laid down principle for the Courts that decision be made on the basis of merits of each case rather than on technicalities. Hon'ble Karachi High Court in reported judgment in 2010 PLC 267 held, "(a) Administration of justice: ' Duty of Court to fashion the path of justice in accordance with law, litigation must be decided on the basis on merits of each case rather than on technicalities----Principle.
' The Principle of jurisprudence in Pakistan is that be decided on the basis of merits of each case, rather than parties be knocked down by scepters of technicalities, which scepters though may seem very attractive to one party, but always look very hideous to the opposite party, the court is to fashion a path of justice, of course in accordance of law.
1. To rebut objection of limitation, the learned counsel for the respondent referred case-law of the Hon'ble Supreme Court of Pakistan reported in PLD 2002 SC 84 relevant portion is reproduced as under:--- "(i) Limitation Act (IX of 1908)--- ----S. 5---Condonation of delay---Principles---Where on merits the respondent had no case, then: limitation would not be a hurdle in the way of appellant for getting justice---Supreme Court observed that the Court should not be reluctant in condoning the delay depending upon facts of the case under consideration."
22. I am further fortified with the judgment reported in 1999 PLC 836, wherein held, "Ss. 25-A & 38(3)---grievance petition---Limitation---impugned order challenged in departmental appeal and such appeal not yet decided--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."
23. In view of the above discussion, prevailing Labour Laws and citations of Apex Court, the respondent was terminated without adhered the mandatory provisions of Labour Laws, as mentioned hereinabove are illegal, without jurisdiction and void ab initio, consequently objection raised by the learned counsel for the appellants has no force and rejected the Learned Trial Court after thorough examination and evaluation of the record, had rightly accepted the petition of the respondent. The learned counsel for the appellants did not point out any material illegality or irregularity in the judgment impugned dated 08-07-2015, hence impugned judgment dated 08- 07-2015 passed by the Learned 1st Labour Court Quetta is upheld. Consequently appeal is dismissed with no order as to cost.
24. The copy of Judgment along with original record of Trial Court be sent to Trial Court. Case after completion be consigned to record.
25. GIVEN under my hand and seal of the Court on 5th November, 2015.